S v Lungile and Another

• Jurisdiction: South Africa
• Judge: Olivier JA
• Judgment Date: 30 November 1999
• Citation: 1999 (2) SACR 597 (SCA)
• Hearing Date: 16 November 1999
• Counsel: G J Bursey for the first appellant A Hattingh for the second appellant L Mahlati for the State
• Court: Supreme Court of Appeal

Olivier JA: B

[1] On the morning of 2 August 1996, at approximately 09:00, a robbery occurred at Scotts, a shop in Main Street, Port Elizabeth. A policeman (De Reuck) arrived on the scene. Several shots were fired between De Reuck and one of the robbers, the second appellant. At the end of the mêlée an C employee of Scotts, Maggie Jacobs, was dead, killed by a gunshot wound through the lungs and heart; De Reuck and the second appellant were injured; another robber Toboshe, made good his escape, and the first appellant was captured by a policeman on the pavement outside the front door of Scotts with the stolen money and jewellery in his possession.

D [2] At the trial, Kroon J convicted the appellants of robbery and murder. The second appellant was also convicted of being unlawfully in possession of an unlicensed firearm and ammunition.

[3] They were sentenced as follows:

First appellant:

1.

On count 1 (robbery) seven years' imprisonment. It was ordered that four years thereof E run concurrently with the sentence imposed on count 3.

2.

On count 3 (murder) 12 years' imprisonment.

Second appellant:

1.

On count 1 (robbery) seven years' imprisonment. It was ordered that four years thereof F run concurrently with the sentence imposed on count 3.

2.

On count 3 (murder) 14 years' imprisonment.

3.

On count 4 (possession of firearm) 18 months' imprisonment.

4.

On count 5 (possession of ammunition) six months' imprisonment to run concurrently with the sentence imposed on count 4.

G [4] Kroon J gave the appellants leave to appeal to this Court against the convictions and sentences.

[5] At the trial De Reuck as well as another policeman, who captured the first appellant, and several of the employees of Scotts who were on the scene of the robbery and murder, gave evidence. The H appellants did not testify.

[6] I do not intend any discourtesy to counsel for the appellants in not traversing all the arguments put forward. They readily conceded that the learned Judge a quo did not misdirect himself on any factual issue. Indeed the judgment is commendably thorough and speaks of a careful approach. I will I deal only with the major issues raised before us.

The defence of compulsion raised by first appellant

[7] The crux of this defence was stated by Mr Bursey, who appeared for the first appellant at the trial, in the latter's plea explanation as follows:

'He was given instructions by this one Toboshe (the robber who escaped) to collect various items that were being J robbed. Toboshe was in possession of a

Olivier JA

firearm and accused No 1 was not in a position to refuse to carry out his instructions as he feared that Toboshe A might then shoot him for failing to obey.'

To Mrs Meavers, one of the State witnesses, it was put:

'He says that he was told by Toboshe to collect the money and the jewellery whilst Toboshe was holding the gun.'

[8] What was said in the plea explanation and what was put to the State witnesses do not amount to B a defence of compulsion. It was never put that first appellant was in fact threatened or that threatened harm was imminent or had commenced. These are essential elements of the defence of compulsion (see S v Kibi 1978 (4) SA 173 (EC) at 181B - H; Snyman Strafreg 3rd ed at 125 and authorities quoted in footnote 29). Even if the State witnesses had agreed with what was put to C them, (which they did not do) the defence would have come to nought.

[9] In any event, it is clear from the evidence of the State witnesses that the first appellant was one of the group of four would-be robbers that entered the premises of Scotts. Once inside the shop, he D associated himself with the acts of the other robbers by guarding some of the employees who were lying on the floor, obviously having been ordered to lie down by either himself or one of the other robbers. It was never part of the plea explanation or put to the State witnesses that in this conduct first appellant acted under duress. A person who voluntarily joins a criminal gang or group and E participates in the execution of a criminal offence cannot successfully raise the defence of compulsion when, in the course of such execution, he is ordered by one of the members of the gang to do an act in furtherance of such execution. As was said by Holmes JA in S v Bradbury 1967 (1) SA 387 (A) at 404H:

'As a general proposition a man who voluntarily and deliberately becomes a member of a criminal gang with F knowledge of its disciplinary code of vengeance cannot rely on compulsion as a defence or fear as an extenuation.'

The defence of absence of common purpose

[10] On behalf of the first appellant it was argued that there was no proof on the basis of common purpose that first appellant was an accomplice to the robbery or to the murder. G

[11] It is clear that the conviction of robbery was not based on the doctrine of common purpose, but on the direct acts of the first appellant alluded to above: he was a member of the gang that entered Scotts, obviously with the intention of committing a robbery; he actively participated in the robbery, H guarding some of the employees, taking money from a drawer and removing watches and jewellery from the employees and trying to make off with the spoils.

[12] As far as the murder charge is concerned, the first appellant's conviction was based on common purpose. It was not proved that he was armed or that he fired any shot, but he was part of the gang of four of which at least two were armed with firearms and he actively participated in the I execution of the robbery. According to his own plea explanation he was aware that Toboshe was in possession of a firearm. Neither in his plea explanation nor in what was put to any witness was it suggested that he was not...