S v Malinga and Others

• Jurisdiction: South Africa
• Judge: Steyn CJ, Holmes JA and Williamson JA
• Judgment Date: 27 August 1962
• Citation: 1963 (1) SA 692 (A)
• Hearing Date: 20 August 1962
• Court: Appellate Division

A Holmes, J.A.:

The four appellants (and one other who was accused No. 4, and who was not granted leave to appeal), were convicted of the crime of murder by KENNEDY, J., and two assessors in the Durban and Coast Local Division and were sentenced to death. As the appellants do not all have the same numbering as they had in the Court a quo, I shall, to avoid B confusion, refer to them where necessary as accused and with their original numbering.

The trial Court found that the five accused, together with one Stephen Mabaso, who gave evidence for the State and was discharged from liability to prosecution, acting in concert, set out in a motor car to commit the crime of house-breaking with intent to steal and theft; that C one of them (accused No. 4) was to the knowledge of the other accused armed with a loaded revolver; that, in endeavouring to shake off the subsequent pursuit of the car by the police, accused No. 4 shot and killed a policeman, Warrant Officer Werner, who was in a flying squad car which had managed to draw alongside; that the other accused must D have foreseen the likelihood of such occurrence and were a party to and equally guilty of the murder; and that there were no extenuating circumstances.

The main points raised on appeal were that the trial Court erred in not regarding Stephen Mabaso as a trap; that there was insufficient proof of any common purpose existing at the time when the deceased was shot; E alternatively that it could not be said that the use of the revolver by accused No. 4 was a possibility foreseeable by the other accused; and that in any event there were extenuating circumstances in respect of those who did not fire the shot.

With that prelude I turn more fully to the facts.

(The learned Judge then dealt with the evidence and proceeded.)

F The trial Court held that Mabaso was not a police trap. I agree with this finding because, as indicated in Gardiner and Lansdown on the South African Criminal Law and Procedure, 6th ed. vol. 1 pp 659 - 60, a trap is a person who, with a view to securing the conviction of another, proposes certain criminal conduct to him, and himself ostensibly takes G part therein. In other words he creates the occasion for someone else to commit the offence. In the present case the plot had been hatched before Mabaso got in touch with Sergeant Botha on 13th and 20th November, 1961. It is true that No. 3 accused only came into it on 21st November, but that was at...