S v Makhubela and Another

• Jurisdiction: South Africa
• Judgment Date: 29 September 2017
• Citation: 2017 (2) SACR 665 (CC)

S v Makhubela and Another
2017 (2) SACR 665 (CC)

2017 (2) SACR p665

Citation	2017 (2) SACR 665 (CC)
Case No	216/15; [2017] ZACC 36
Court	Constitutional Court
Judge	Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Mojapelo AJ, Pretorius AJ and Zondo J
Heard	September 29, 2017
Judgment	September 29, 2017
Counsel	L Hodes SC for the applicant (Makhubela) at the request of the court.; U Mokone for the state.

Flynote : Sleutelwoorde

Arms and ammunition — Unlawful possession of firearms and ammunition — Joint possession — By individual members of group of robbers, of firearms held by other members of group — No evidence from which it could be inferred that accused intended to possess firearms through perpetrators C who had firearms in their possession, or that intended to hold firearms on behalf of co-accused — Convictions set aside.

Headnote : Kopnota

The two applicants were part of a group of seven men who were convicted in the High Court of robbery with aggravating circumstances, murder, and the D unlawful possession of firearms and ammunition. They admitted that they were present at the scene of the murder and robbery but contended that they had not participated in it. Their convictions were based on the application of the doctrine of common purpose and this was the only issue for decision (other than a necessary application for condonation that was granted by the court) in the present applications for leave to appeal. E

It appeared that the applicants had spent the afternoon together and had then left with their co-accused in the same car and travelled together to the town where the offences were committed. They spent some time in the same tavern upon their arrival, before going to the home of the deceased, a warrant officer in the police. When the deceased arrived at home he was shot three times by intruders in the presence of his daughter. The intruders also took the deceased's service pistol. F

The court held that the fact that the two applicants were at the scene of the crime was no chance event; the facts suggested that it was coordinated. There was furthermore no evidence that the applicants were at any stage forced to travel and remain with the group. If they had not known about the plan or had not intended to be involved in any manner, then they should have enquired of their co-accused what their intentions were when they parked G the vehicle at a distance from the scene of the fatal shooting. Or, at least, they should have raised questions once they became aware that their co-accused had been carrying firearms when they alighted and proceeded to the house, and they should have then distanced themselves from their co-accused. Upon their return, they did not ask why the vehicle had to be driven at a very high speed from the scene or where the extra firearm had come from. It was reasonable to infer that the two applicants, far from being H caught up unawares in illicit conduct, had an intention to commit a crime with their co-accused. (See [39] – [40].)

The court held further that the applicants had made common cause with those committing the armed robbery and had the requisite mens rea to commit this offence, and their convictions in respect of the robbery charge had to I stand. Although the applicants may not have intended the criminal result of murder, they had to have foreseen the possibility of the criminal result of murder ensuing by virtue of the fact that the other perpetrators were carrying firearms, which they must have known would be used if the plan went awry. They had nonetheless actively associated themselves with the criminal acts and it followed that their convictions in respect of the murder charge also had to stand. (See [43] – [44].) J

2017 (2) SACR p666

In A respect of the charges of the unlawful possession of firearms and ammunition, however, the court held that it was clear that awareness alone was not sufficient to establish the intention of jointly possessing a firearm or the intention of holding a firearm on behalf of another. There was no evidence from which it could be inferred that the applicants had the intention to exercise possession of the firearms through the perpetrators who had those B firearms in their possession, or that those persons had the intention to hold the firearms on behalf of all of the co-accused. The fact that the applicants had conspired with others to commit armed robbery, even if they were aware that some of the co-accused possessed firearms, did not lead to the conclusion beyond reasonable doubt that they had possessed the firearms jointly with their co-accused. The appeal against these convictions accordingly had to be upheld and the convictions and sentences for these offences C set aside. (See [55] – [57].)

Cases cited

Grootboom v National Prosecuting Authority and Another 2014 (2) SA 68 (CC) (2014 (1) BCLR 65; [2013] ZACC 37): dictum in para [23] applied

Head D of Department, Department of Education, Limpopo Province v Settlers Agricultural High School 2003 (11) BCLR 1212 (CC) ([2003] ZACC 15): referred to

S v Bolo [2014] ZAECGHC 99: followed

S v Dewnath [2014] ZASCA 57: dictum in para [15] applied

S v Dingaan [2012] ZAECGHC 42: followed

S E v Khanye and Another 2017 (2) SACR 630 (CC) ([2017] ZACC 29): referred to

S v Kwanda 2013 (1) SACR 137 (SCA) ([2011] ZASCA 50): followed

S v Litako and Others 2014 (2) SACR 431 (SCA) (2015 (3) SA 287; [2014] 3 All SA 138; [2014] ZASCA 54): referred to

S v Matjeke and Others [2013] ZANWHC 95: upheld in part on appeal

S F v Mbuli 2003 (1) SACR 97 (SCA) ([2002] ZASCA 78): followed

S v Mercer 2004 (1) SACR 1 (CC) (2004 (2) SA 598; 2004 (2) BCLR 109; [2003] ZACC 22): referred to

S v Mgedezi 1989 (1) SA 687 (A): dicta at 705I – 706C applied

S v Mhlongo; S v Nkosi 2015 (2) SACR 323 (CC) (2015 (8) BCLR 887; G [2015] ZACC 19): referred to

S v Modiba [2013] ZAGPJHC 14: followed

S v Molaudzi 2015 (2) SACR 341 (CC) (2015 (8) BCLR 904; [2015] ZACC 20): referred to

S v Molimi and Another 2006 (2) SACR 8 (SCA) ([2006] ZASCA 43): dictum in para [33] applied

S H v Ndhlovu and Others 2002 (2) SACR 325 (SCA) (2002 (6) SA 305; [2002] 3 All SA 760; [2002] ZASCA 70): applied

S v Ngwane and Another [2015] ZAGPJHC 166: followed

S v Nkosi 1998 (1) SACR 284 (W): followed

S v Ramoba 2017 (2) SACR 353 (SCA) ([2017] ZASCA 74): followed

S v Thebus and Another 2003 (2) SACR 319 (CC) (2003 (6) SA 505; I 2003 (10) BCLR 1100; [2003] ZACC 12): applied.

Case Information

L Hodes SC for the applicant (Makhubela) at the request of the court.

U Mokone for the state.

Applications for leave to appeal, and condonation for the late filing of J such applications, from convictions in the North West Division,

2017 (2) SACR p667

Mahikeng, for murder, robbery with aggravating circumstances, and the A unlawful possession of firearms and ammunition.

Order

1.

Condonation is granted.

2.

Leave to appeal is granted. B

3.

The appeals are partially upheld.

4.

The order of the full court of the High Court of South Africa, North West Division, Mahikeng, is set aside only to the extent set out below:

'(a)

The appeal by the applicants against their convictions on counts 4 and 5 is upheld. C

(b)

Their convictions and sentences on these counts are set aside.'

Judgment

Mhlantla J (Mogoeng CJ, Nkabinde ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mojapelo AJ, Pretorius AJ and Zondo J concurring):

Introduction

[1] The two applicants, Mr Thabo Matjeke (Matjeke) and Mr George Makhubela (Makhubela), seek leave to appeal against an order of the E High Court of South Africa, North West Division, Mahikeng (full court). The full court dismissed their appeal against their convictions and sentences. The applicants, who were accused numbers one and three, respectively, in the trial court, and their five co-accused, [1] were convicted of the murder of a police officer, robbery with aggravating circumstances and unlawful possession of firearms and ammunition. F These convictions were based on the doctrine of common purpose. They were sentenced to life imprisonment for murder, 15 years' imprisonment for robbery and six years' imprisonment for possession of firearms and ammunition. [2] The issues for determination before this court are whether leave to appeal should be granted and whether the convictions of the applicants based on the doctrine of common purpose can be sustained. G

[2] Although the two applications were lodged in this court on different occasions, the circumstances of the applicants' cases relate to the same

2017 (2) SACR p668

Mhlantla J

incident A and they were tried together in the trial court. The same sentences were imposed and the grounds of appeal are similar. Therefore, it is appropriate to prepare one judgment dealing with both applications. It is necessary at this stage to outline the background.

Factual background

[3] On 3 August 2002, WO Dingaan Makuna (deceased) arrived at his home with his service pistol tucked in his waist. He was subsequently shot three times by intruders in the presence of his daughter. It was alleged that the applicants were part of a group of men who had shot the deceased and planned to steal his bakkie. The deceased was taken to C hospital where he died later that night. His pistol was never found.

[4] Following this incident, Messrs Matjeke and Makhubela and their five co-accused were arrested and charged with murder, robbery with aggravating circumstances and unlawful possession of firearms and ammunition. After their arrest, some of the accused made extra-curial D statements to the investigating officer and to the magistrate. Matjeke and another accused also pointed out the house of the deceased and the tavern where they...