S v Majosi and Others

JurisdictionSouth Africa
JudgeNienaber JA
Judgment Date26 September 1991
Citation1991 (2) SACR 532 (A)
Hearing Date09 September 1991
CounselW J Tee for the second appellant at the request of the Court M M Antonie for the third appellant at the request of the Court C J B van Vuuren for the State
CourtAppellate Division

Nienaber JA:

On Sunday 29 May 1988 at about noon a robbery occurred at the Checkers supermarket in Hillbrow, Johannesburg. Two of its employees, Mrs Byrne and Mr Botha, a security guard, collected the cash takings of the morning from the various cashiers at the tills. The tills are lined up at street level and are open to the pavement outside. Mrs Byrne started collecting the money at the one end, Botha at the other. C They moved from till to till. This was a regular daily or twice-daily operation, visible to anyone inside or outside the store. As part of the routine the manager of the supermarket, Mr Knight, and the assistant manager, Mr Glanz, had taken up positions on the pavement directly opposite the tills. When Mrs Byrne and Botha met in the middle he placed all the takings in a single yellow bag. It was afterwards calculated to D have contained R28 600. They proceeded to the first floor. Botha was carrying the bag with the money. They had reached the top of a narrow stairway, out of sight of the public, and were entering a security area when Mrs Byrne happened to glance back and saw that Botha was talking to two black men at the security gate which she had just unlocked and passed through. One of them was wearing a white dust-coat and the other E was dressed in brown. They were obstructing Botha from closing the gate. She was not alarmed, believing them to be co-employees, but when she heard a noise she looked back again and saw that Botha was being pulled through the gate. It sounded to her as if they were tumbling down the staircase. She shouted to another co-employee, a Mr Azari, who was in the cash office nearby, and he rushed towards them. Botha was holding on to the man in brown. The latter had a gun. The two of them were F struggling. Botha called on Azari to grab the gun but as Azari tried to do so the man in brown managed to toss it towards his companion who was then standing at the foot of the stairs. Azari testified as follows:

'When they were down at that spot, was Mr Botha still holding on to one of the robbers? - Yes, he was.

What did the other person who now had the gun do? - He then told G me that he was going to shoot.

That is now the man with the gun? - With the gun. I then lay down on the stairs.

Where were you at that stage? - I was . . . (intervenes).

Were you still above the deceased, were you then above the deceased? - Yes, behind the deceased.

H Yes? - And then the robbers, the guy with the gun then went up two steps and shot Mr Nols Botha.'

Botha, fatally wounded, released the other man. The two robbers then fled with the bag of money. They ran past Knight and Glanz, who were still stationed on the pavement outside the store, towards a Granada motor vehicle which was double-parked in a nearby side street some I 100-250 metres away. Knight chased them but the car drove off as soon as the two of them entered it. Knight followed on foot for some distance. The car drove at high speed through several red traffic lights and eventually disappeared from sight.

According to the medical evidence the deceased, Botha, was most likely killed by a single shot, fired into his head from above and to the right of him.

These events led to the trial, a year later, of the five appellants in the Witwatersrand Local Division, before Smit J and two assessors, on J four

Nienaber JA

A counts - count 1, the murder of Botha; count 2, robbery with aggravating circumstances as defined in s 1 of the Criminal Procedure Act 51 of 1977; counts 3 and 4, the unlawful possession of a firearm and ammunition in contravention of the relevant sections of the Arms and Ammunitions Act 75 of 1969.

None of the eyewitnesses to the robbery and the murder was able to identify any of the malefactors. All five appellants were nonetheless convicted, on one or more of the various counts. The conviction of each B rested on a confession he had made to a justice of the peace. The admissibility of all of these statements was strenuously but unsuccessfully challenged in the Court a quo. Largely on the basis of what was thus admitted three of them, appellants Nos 2, 4 and 5, were convicted of murder, all of them were convicted of robbery with aggravating circumstances and two, Nos 1 and 5, were in addition C convicted of the firearm offences. The Court furthermore found, applying the law as it then stood, that the three appellants convicted of murder had not discharged the onus of proving that there were extenuating circumstances. The appellants were accordingly sentenced as follows:

The first appellant:

Count 2: Robbery with aggravating circumstances: sentenced to D imprisonment for 14 years.

Count 3: Unlawful possession of a firearm: sentenced to imprisonment for one year, which it was directed was to run concurrently with the sentence on count 2.

The second appellant:

E Count 1: Murder: sentenced to death.

Count 2: Robbery with aggravating circumstances: sentenced to imprisonment for 14 years.

The third appellant:

Count 2: Robbery with aggravating circumstances: sentenced to imprisonment for 14 years.

The fourth appellant:

F Count 1: Murder: sentenced to death.

Count 2: Robbery with aggravating circumstances: sentenced to imprisonment for 14 years.

The fifth appellant:

Count 1: Murder: sentenced to death.

G Count 2: Robbery with aggravating circumstances: sentenced to imprisonment for 14 years.

Count 3: Unlawful possession of a firearm: sentenced to imprisonment for one year, which it was directed was to run concurrently with the sentence on count 2.

Count 4: Unlawful possession of ammunition: sentenced to imprisonment H for one year, which it was likewise directed was to run concurrently with the sentence on count 2.

All five appellants were granted leave to appeal by the Court a quo: appellants Nos 2 and 4 (but not appellant No 5) against their convictions for murder; appellants Nos 2, 4 and 5 against their sentences of death; and all five of them against the sentence of 14 I years' imprisonment imposed in respect of the robbery charge.

In this Court, unlike in the Court a quo, the admissibility of the confessions made by each of the appellants was not in issue. What was strenuously disputed on behalf of appellants No 2 and 4 was whether the statement of each contained sufficient admissions to render him criminally liable in terms of the so-called doctrine of common purpose. J It was on that basis that the Court a quo approached the matter.

Nienaber JA

A I commence with the convictions of appellants Nos 2 and 4 on the count of murder.

The conviction of appellant No 2 of murder

His statement, exh J, reads as follows (for the sake of convenience I insert a reference to the appellant concerned whenever a name is mentioned):

'Dit was op 'n Sondag, ek kan nie die datum onthou nie. Dit was ek B (appellant No 2), Mgxobeni (appellant No 3), Xolani (appellant No 4), Bongani (appellant No 1) en Mbasela (appellant No 5). Ons het 'n Ford Granada gery na Hillbrow. Ons het na 'n swartman Bheki toe gegaan. Ons het die vuurwapen van Bheki af geleen, en hy het die vuurwapen aan Bogani (appellant No 1) gegee. Ons het vandaar na Checkers toe gegaan. Ek en Mgxobeni (appellant No 3) het te voet gestap. Die ander drie, C Xolani (appellant No 4), Bongani (appellant No 1) en Mbasela (appellant No 5), het met die Granada gery na Checkers toe. Ek en Mgxobeni (appellant No 3) het buitekant die winkel gestaan. Xolani (appellant No 4) en Mbasela (appellant No 5) het binne in Checkers ingegaan. Hulle was lank binne in die winkel. Ek het verskuif van waar ek gestaan het na die oorkant van die straat. Terwyl ek oorkant die straat was, ek het 'n skoot van die vuurwapen gehoor.

D Na die skoot ek het gesien Xolani (appellant No 4) en Mbasela (appellant No 5) hardloop by Checkers uit. Hulle het uit sig verdwyn. Ek het na Noordstraat toe gegaan waar ek 'n taxi na Diepkloof gehaal het. By Diepkloof het ek 'n ander taxi gehal na Dube hostel toe. Ek het Xolani (appellant No 4), Bogani (appellant No 1) en Mbasela (appellant No 5) by die hostel gekry. Mgxobeni (appellant No 3) was E nog nie daar nie. Hy het na my daar aangekom. Die tyd wat ek by Dube hostel kom ek het gemerk dat daar was 'n plastieksak van Checkers met geld daarin. Ons het daai geld tussen ons verdeel. Ek het R1 200 ontvang. Ons het toe uitmekaar gebreek. Ek het by my woonplek gegaan by Mafolo.'

What the statement, taking it at...

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24 practice notes
  • S v Mzwempi
    • South Africa
    • Invalid date
    ...S v Madlala 1969 (2) SA 637 (A): discussed and not followed S v Maelangwe 1999 (1) SACR 133 (NC): referred to G S v Majosi and Others 1991 (2) SACR 532 (A): S v Maxaba en Andere 1981 (1) SA 1148 (A): referred to S v Mbanyaru and Another 2009 (1) SACR 631 (C): referred to S v Mgedezi and Oth......
  • S v Mkhize
    • South Africa
    • Invalid date
    ...failure to give evidence that he abandoned his intention to commit the robbery is relevant. (See, for example, S v Majosi and Others 1991 (2) SACR 532 (A) at 537f-g.) He relied on an alibi which was correctly rejected as false which is also a D relevant, although not decisive, factor. (See,......
  • S v Mofokeng
    • South Africa
    • Invalid date
    ...those which are mitigating. As was said so concisely by Nienaber JA concerning an unblemished record (in S v Majosi and Others E 1991 (2) SACR 532 (A) at '. . . (T)hat factor, weighty as it undoubtedly is, must yield to considerations of retribution and deterrence when the horror of the cri......
  • S v Motloba
    • South Africa
    • Invalid date
    ...testify. In this respect the position of the appellant differs from that of the second appellant in the case of S v Majosi and Others 1991 (2) SACR 532 (A), who failed to tender evidence to meet State evidence and what were described as 'overwhelming probabilities' pointing towards his guil......
  • Request a trial to view additional results
24 cases
  • S v Mzwempi
    • South Africa
    • Invalid date
    ...S v Madlala 1969 (2) SA 637 (A): discussed and not followed S v Maelangwe 1999 (1) SACR 133 (NC): referred to G S v Majosi and Others 1991 (2) SACR 532 (A): S v Maxaba en Andere 1981 (1) SA 1148 (A): referred to S v Mbanyaru and Another 2009 (1) SACR 631 (C): referred to S v Mgedezi and Oth......
  • S v Mkhize
    • South Africa
    • Invalid date
    ...failure to give evidence that he abandoned his intention to commit the robbery is relevant. (See, for example, S v Majosi and Others 1991 (2) SACR 532 (A) at 537f-g.) He relied on an alibi which was correctly rejected as false which is also a D relevant, although not decisive, factor. (See,......
  • S v Mofokeng
    • South Africa
    • Invalid date
    ...those which are mitigating. As was said so concisely by Nienaber JA concerning an unblemished record (in S v Majosi and Others E 1991 (2) SACR 532 (A) at '. . . (T)hat factor, weighty as it undoubtedly is, must yield to considerations of retribution and deterrence when the horror of the cri......
  • S v Motloba
    • South Africa
    • Invalid date
    ...testify. In this respect the position of the appellant differs from that of the second appellant in the case of S v Majosi and Others 1991 (2) SACR 532 (A), who failed to tender evidence to meet State evidence and what were described as 'overwhelming probabilities' pointing towards his guil......
  • Request a trial to view additional results

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