S v Mavhungu

• Jurisdiction: South Africa
• Citation: 1981 (1) SA 56 (A)

S v Mavhungu
1981 (1) SA 56 (A)

1981 (1) SA p56

Citation	1981 (1) SA 56 (A)
Court	Appellate Division
Judge	Rumpff CJ, Trollip JA and Diemont JA
Heard	August 28, 1980
Judgment	September 23, 1980

Flynote : Sleutelwoorde

Criminal procedure — Appeal — Against conviction — Appellant having pleaded guilty — Not precluded from appealing against his conviction — Act 51 of 1977 ss 121 (5) (b), 315, 316 — Proviso to s 121 (5) (b) — Effect where an accused has been sentenced to death.

1981 (1) SA p57

Criminal procedure — Appeal — Against conviction of murder — Appellate Division entitled to have regard to evidence adduced, after conviction, on A issue of extenuating circumstances in considering whether the verdict was right — Act 56 of 1955 s 330 (1) — Act 51 of 1977 s 277 (2).

Criminal law — Murder — Trial on charge of — Twofold procedure of inquiry into accused's guilt or innocence and further inquiry into presence or B absence of extenuating circumstances — But there is only one overall proceeding and, upon a conviction, a single, composite verdict of guilty with or without extenuating circumstances — Act 51 of 1977 s 277 (2).

Criminal law — Murder — Accessory after the fact to — Appellant and others conspiring to murder a certain person — Other participants in conspiracy C murdering a different victim — Appellant arriving on the scene after murder committed but taking part in removing parts of deceased's body and disposing of body — Not proved that appellant had the requisite dolus alternativus or indeterminatus in respect of the deceased — Appellant not guilty of murder or culpable homicide — Verdict of guilty of being an D accessory after the fact in respect of the murder of the deceased substituted on appeal for trial Court's verdict of murder.

Criminal law — Murder — Accessory after the fact to — Sentence — Appellant and others conspiring to murder a certain person — Other participants in conspiracy murdering a different victim — Appellant arriving on the scene after murder committed but taking part in removing parts of deceased's E body and disposing of body — Conspiracy constituting a contravention of s 18 (2) of Act 17 of 1956 — Appellant could not be convicted of such conspiracy in present proceedings — But such conspiracy ought to be taken F into account in aggravation of offence of being an accessory after the fact of deceased's murder — Appellant sentenced accordingly.

Headnote : Kopnota

There is nothing in ss 315 and 316 of the Criminal Procedure Act 51 of 1977 precluding an appeal against the appellant's conviction of murder where the appellant, at his trial, pleaded guilty to murder, a fortiori now that the proviso in s 121 (5) (b) of the Act says that, despite a plea of guilty, the sentence of death shall not be imposed unless the guilt of the accused has been proved "as if he had pleaded not guilty".

G In R v Mamba 1957 (2) SA 420 (A) at 422A it was said that it would only be "in exceptional cases" that one who had pleaded guilty and been convicted in accordance with his plea would be granted relief on appeal. But because of the proviso in s 121 (5) (b) of Act 51 of 1977 that limitation now no longer applies where the accused is sentenced to death. In such an appeal he can now be granted relief in the ordinary way if the facts warrant it.

H In S v Shabalala 1966 (2) SA 297 (A) it was held that s 330 (1) of the old Criminal Procedure Act 56 of 1955 involved a twofold procedure: first an inquiry into the accused's innocence or guilt of the alleged murder, and, if his guilt was found proved, then a further inquiry into the presence or absence of extenuating circumstances. But, despite that procedural dichotomy, it was affirmed at 300B of that case and in S v Sparks and Another 1972 (3) SA 396 (A) at 404E that in reality, where the accused is convicted of murder, there is only one overall proceeding and a single, albeit composite, verdict of guilty of murder with or without extenuating circumstances, as the case may be. The trial only ends when such a verdict is delivered. That also applies now

1981 (1) SA p58

under the corresponding s 277 (2) of the present Act 51 of 1977, since its relevant wording remains substantially the same. It follows that, for the purpose of an appeal against that verdict, the record of the evidence of A the entire proceedings must be laid before the Appellate Division for its consideration. And in considering whether the verdict was right or wrong the Appellate Division can also have regard to the evidence adduced in extenuation.

The appellant had been convicted in a Circuit Court of murder without extenuating circumstances and sentenced to death. The appellant had not testified at his trial prior to his conviction, but had testified thereafter on the question of extenuating circumstances. In an appeal B against his conviction of murder, it being contended that the proper verdict should be that appellant was guilty of being an accessory after the fact in respect of the murder of the deceased, it appeared from the evidence, including the appellant's evidence adduced in extenuation, that the appellant and three others (one of whom was a woman, N) had conspired to murder N's mother-in-law for the purpose of removing certain parts of C her body in order to make medicine therewith. On a certain day N reported that her mother-in-law would be at N's home that night and that it would be an opportune time for implementing the plan. Appellant was delayed that night but, on arriving at N's home, he saw N emerge from her house, announcing that she had finished the job. N had however not killed her mother-in-law, but a man. Appellant and the other conspirators then removed certain parts of the deceased's body and thereafter disposed of the body.

Held, that, in all the circumstances, the State had not proved that the D appellant had the requisite dolus alternativus or indeterminatus, either directus or eventualis, in respect of the deceased before or at the time he was killed. Held, accordingly, that the verdict of guilty of murder of the deceased and the sentence of death had to be set aside.

Held, further, assuming without deciding that a verdict of culpable homicide was an available alternative in this kind of case, that the accepted evidence did not establish that the appellant ought reasonably E to have foreseen that N, in carrying out the agreed, common purposes, would kill someone other than the mother-in-law.

Held, further, that the only appropriate, competent alternative verdict to substitute was that the appellant was guilty of being an accessory after the fact in respect of the murder of the deceased.

F Held, further, that the appellant had also contravened s 18 (2) of Act 17 of 1956 by conspiring with the others to murder the mother-in-law, but this was a separate and different offence of which he could not be found guilty in the present proceedings.

Held, further, that the unlawful conspiracy could and ought to be taken into account as aggravation of the present offence because of its direct and close causal relation with the latter: the appellant would not be prejudiced thereby as he had duly and fully confessed to having entered G into the conspiracy, and, because it was now being taken into account, he would most probably never be charged therewith.

Held, accordingly, that the verdict should be altered to one of guilty of being an accessory after the fact of the murder and a sentence of 12 years' imprisonment substituted for the death sentence. H

Case Information

Appeal from a conviction and sentence of death imposed in the Northern Transvaal Circuit Local Division (VAN REENEN J). The facts appear from the judgment of TROLLIP JA.

T D Hopf for the appellant at the request of the Court: Die eerste vraag wat ontstaan is wat die getuieniswaarde van die getuienis deur die appellant afgelê ter versagting van die vonnis is vis-à-vis die getuienis van Tshinakaho Ndou op die meriete van die saak. Uit art 274 (1) van Wet 51 van 1977 wil dit prima facie voorkom asof sodanige getuienis gelyke waarde het met getuienis aangevoer op die meriete van die saak. In S v Fisher en 'n Ander 1969 (2) SA 362 het die probleem van getuienis ter

1981 (1) SA p59

versagting teenoor dié op die meriete onder bespreking deur hierdie Hof gekom. Hoewel die omstandighede van die Fisher- saak met dié van die huidige saak verskil, geld die beginsel aldaar geformuleer (te 636D) ook A ten opsigte van hierdie saak. V G Hiemstra in sy werk Suid-Afrikaanse Strafproses 2de uitg te 489 ondersteun hierdie standpunt. Die optrede van die geleerde Verhoorregter in casu skyn in ooreenstemming te wees met die beginsels soos hierbo uiteengesit, deurdat hy verlof verleen het om te appelleer en dat hierdie Hof dus die getuienis van appellant soos aangebied ter versagting behoort te oorweeg. Dit is immers duidelik dat B die Hof a quo beslis meer waarde geheg het aan die getuienis van appellant as dié van Ndou.

Indien appellant se weergawe van die gebeure dus aanvaar word, ontstaan die vraag wat die regstegnieskorrekte bevinding hier behoort te gewees het. Dit is 'n erkende beginsel van ons reg dat strafregtelik C blaamwaardigheid slegs aan 'n handeling of gevolg kleef indien dit aan mens rea by die dader gekoppel kan word. Vide S v Mtshiza 1970 (3) SA te 752A. Die blote feit dat appellant saamgesweer het om Ndou se skoonmoeder dood te maak beteken nie dat hy noodwendig skuldig is ten aansien van die moord op oorledene nie; sy opset in die verband moet nog bewys word. Sien D J H Hugo in 1969 SALJ te 396. Sien ook in hierdie verband S v Thomo and Others 1969 (1) SA te 398D-F. Vgl ook S v Madlala 1969 (2) SA te 640G-H; S v Mongalo 1978 (1) SA te 417F-H. Uit hoofde hiervan is duidelik dat appellant nie op grond van die leerstuk van "common purpose" aandadig was by die doodmaak...