S v Khoza

• Jurisdiction: South Africa
• Citation: 1982 (3) SA 1019 (A)

S v Khoza
1982 (3) SA 1019 (A)

1982 (3) SA p1019

Citation	1982 (3) SA 1019 (A)
Court	Appellate Division
Judge	Corbett JA, Joubert JA, Holmes AJA, Hoexter AJA and Botha AJA
Heard	March 9, 1982
Judgment	May 28, 1982

Flynote : Sleutelwoorde E

Criminal law — Persons, liability of — Participation — Applicable principles discussed — Insufficient evidence to convict of murder — But evidence establishing common assault.

Criminal law — Murder — Participation in — What constitutes — Accused F assaulting deceased in a manner not contributing towards death of deceased — Reasonable possibility that assault by accused was committed after fatal injury inflicted by a co-accused — Evidence not establishing that accused subjectively foresaw the possibility of resultant death when he saw the other accused attacking the deceased and that he recklessly joined in the attack with the associatory and G co-operative intention of helping the other accused to kill the deceased — Conviction altered from one of murder to one of common assault — Applicable principles of law relating to participation discussed.

Headnote : Kopnota

In an appeal from a conviction of murder in a Circuit Local Division it appeared that the appellant, the deceased and two co-accused had, after a drinking party at which they had consumed liquor, left in the H deceased's car for the kraal of one of the co-accused (who had been acquitted by the trial Court). While the deceased had been repairing the car, which had broken down en route, he was attacked by the other co-accused and stabbed twice. The appellant then struck the deceased twice with a cane and thereafter the other co-accused again assaulted the deceased. The corpse of the deceased was then put in the car by the other co-accused and the appellant and the other co-accused set the car alight with the result that the body of the deceased was incinerated. The Court, in considering the appeal, determined the liability of the appellant on the basis that the

1982 (3) SA p1020

other co-accused might, as a reasonable possibility, have fatally injured the deceased before the appellant had struck the deceased with the cane and that there was no proof of what effect the two blows with A the cane had had on the deceased.

Held (per HOLMES AJA, JOUBERT JA concurring), in regard to the appellant's mens rea, that it had not been proved that appellant subjectively foresaw the possibility of resultant death when he saw the other co-accused attacking the deceased.

Held, further, that it had not been proved beyond reasonable doubt that B appellant had acted as he had with the associatory and co-operative intention of helping the other co-accused to kill the deceased, or that he attempted to murder the deceased.

Held, accordingly (per HOLMES AJA, JOUBERT JA and HOEXTER AJA concurring), having regard to the absence of evidence as to the force used by the appellant, the part of the deceased's body which he struck or the nature of any injury inflicted by him, that the verdict should C not be one of assault with intent to do grievous bodily harm, but one of guilty of common assault. (CORBETT JA and BOTHA AJA dissenting.)

The principles of law applicable to the participation of an accused in a murderous assault on a deceased after a fatal injury has already been inflicted by another accused discussed in the minority judgments. D

Case Information

Appeal from a conviction in the Northern Circuit Local Division of the Natal Provincial Division (THIRION J). The facts appear from the judgments of CORBETT JA and HOLMES AJA.

B Law SC (with him P J Miller) for the appellant: The trial Court found E as the only reasonable possibility that the appellant joined in the attack upon the deceased reckless whether it resulted in the death of the deceased or not. Appellant admits no more than hitting the unidentified person with a stick. In view of the fact that it was totally dark, the parties were intoxicated and some commotion was going on, this statement by the appellant cannot be excluded as a reasonable F possibility. The fact that the body of the deceased was thereafter placed in the vehicle does not indicate only that the appellant made common cause with his co-accused. There is nothing to indicate that at that stage there was any suggestion of setting the vehicle alight. In view of this the Court's finding that the appellant assisted in placing G the body of the deceased into the vehicle well-knowing that the vehicle was to be set alight so as to destroy the body, amounts to a misdirection. No inference of guilt can be drawn from the failure of the appellant to testify (S v Letsoko and Others 1964 (4) SA at 776; S v Theron 1968 (4) SA 61). In the instant case the evidence adduced by the State was not of such a degree that it excluded as a reasonable possibility that the statements made by the appellant may not reasonably H possibly be true. In that event the silence of the appellant at the trial will not make or restore the State's case against him. Taking into account not only those facts favourable to the State emanating from the statements the appellant made but also those facts favourable to him, a reasonable doubt was raised on the evidence in its totality in any event. S v Bruce 1972 (4) SA 547; S v Theron (supra); S v Grandin 1970 (2) SA 621G. Even in the event of the trial Court being able to draw the inference it did draw from the circumstantial evidence, it was not the only reasonable inference to be drawn. R v Blom 1939 AD 202.

1982 (3) SA p1021

The only evidence linking appellant with the death of the deceased was his own extra-curial statements made to the Bergville magistrate and the statement he made to the magistrate at Ladysmith in the s 119 A proceedings. It does not appear from the statement made by appellant to the Bergville magistrate that there was any previous agreement between the appellant and either of his co-accused to attack or to murder the deceased. On the facts admitted by the appellant the reasonable possibility that the deceased had been fatally wounded by accused No 2 before the appellant assaulted the deceased has not been excluded by B the State, ie it has not been proved beyond reasonable doubt that the actions of appellant contributed causally to the death of the deceased. The State has not proved that the appellant joined in the attack on the deceased with the intention of killing the deceased. The weapon he used C was a cane 'stick' which evidently broke when he struck the deceased. The reasonable possibility that the appellant spontaneously launched upon the deceased an attack independent from that of accused No 2 has not been excluded by the State. There is no justification for the findings of the Court a quo that appellant took part in accused No 2's attack upon the deceased realising that there was a probability that D accused No 2 might stab the deceased and fatally injure him and appellant joined in the attack, reckless whether it resulted in the death of the deceased. See per WESSELS JA in S v Thomo and Others 1969 (1) SA at 399H - 400A. In Thomo's case supra, WESSELS JA, in delivering the judgment of the Court, also by implication approved R E v Masuka and Others 1965 (2) SA at 42F - H, 43G - H in which YOUNG J adopted the argument of Professors De Wet and Swanepoel in Die Suid Afrikaanse Strafreg. The law as stated by WESSELS JA in Thomo's case, and YOUNG J in Masuka's case, is contrary to the views expressed by SCHREINER JA in S v Mgxwiti 1954 (1) SA 370. In his judgment SCHREINER JA stressed the practical advantages of his approach and the F difficulties of proof involved in accepting the 'causation' approach. WESSELS JA deals effectively with the so-called practical advantages in his judgment in Thomo's case. In S v Williams en 'n Ander 1980 (1) SA 60 the judgment analysed the differences between principals or mededaders and accessories or medepligtiges. It was held that (a) in order to G qualify as a principal an accused must satisfy all the requisites of the definition of the relevant crime. (b) An accessory is not a principal because he does not perform the actus reus of a principal; intentionally associates himself with the commission of the offence by the principal or principals in that he intentionally furthers the commission of the offence or intentionally furnishes the principal(s) the opportunity, the H means or the information which further the commission of the offence; because he knowingly associates himself with the commission of the offence or intentionally assists in furthering its commission, has the intention of helping the principal(s) commit the offence; to murder he must have the intention of helping the principals to kill and murder the victim. (c) In accordance with general principles there must be a causal connection between the assistance afforded by the accessory and the commission of the offence by the principal(s). See S v Maxaba and Others 1981 (1) SA at 1155. The approach which commended itself to

1982 (3) SA p1022

SCHREINER JA is S v Mgxwiti and which was followed in R v Chenjere 1960 (1) SA 473 is contrary to long-established legal principle and the A approach in the other cases cited herein is a correct exposition of the law. Applying the legal principles to the facts of the present case it has not been proved that the appellant had the intention, either actual or constructive, to kill the deceased; the appellant associated himself with the actions of accused No 2 and is therefore a party to those actions; the actions of the appellant caused or contributed to causing B the death of the deceased. The conviction and sentence should be set aside and a verdict of guilty of common assault substituted.

L J Roberts SC (with him D A Paver) for the State: It is clear that the deceased was murdered on the night of 11...