S v Memani

• Jurisdiction: South Africa
• Judge: Goldin JA
• Judgment Date: 31 July 1990
• Citation: 1990 (2) SACR 4 (TKA)
• Hearing Date: 31 July 1990
• Counsel: P J M Suulivan for the appellant at the request of the Court P J Loubser for the State
• Court: Transkei Appellate Division

Goldin JA:

The petitioner applied to the Chief Justice for leave to appeal in terms of s 322(6)(a) of the Criminal Procedure Act 13 of 1983 (Tk) against his conviction and sentence on one count of murder and one count of attempted murder. Such a petition 'may be considered in Chambers by the G Chief Justice or by any other Judge of the Court of Appeal to whom it may be referred by the Chief Justice' (s 322(7) of the Act). The Chief Justice referred this petition to the Judges of this Court. In order to avoid delay which would occur between a decision to grant leave to appeal in Chambers and the hearing of the appeal, the petition was set down and heard by this Court. Leave to appeal was granted and the Court thereupon proceeded to hear the appeal.

The appellant was charged together with another accused, namely H Tembile Stanford Memani who was found not guilty because there was no admissible evidence against him. The Court a quo found that the only evidence possibly implicating (appellant) is a statement which he made before the magistrate. This statement reads:

'I met one Tembile on a certain Saturday. There was a tribal dance and there was a circumcision ceremony with liquor. I greeted Tembile I by taking his hand. I asked his condition of health. Thereafter we proceeded to the hut. We consumed liquor. I went out to pass water and Tembile followed me. He said somebody was going to be in a problem. He showed me electrical wires. He said he wanted to plant these wires to blast his (also my) paternal aunt. I asked him why he wanted to do that. He said they had quarrelled and he was going to do that. We went back to J the hut. Inside the hut he told me that he

Goldin JA

A would give me R50 if I kept silent about this. He said he was going to the labour centres on the following morning with his wife. About 19:00 on the same Saturday, Tembile asked me to accompany him to plant these wires to blast the said people. He first peeped at the doorway and found that there was no-one inside. He planted these wires on both windows and B on the doorway. I asked him again why he was doing this. He said he knows the reason. After he had set these wires we then left and he said he was going to detonate those wires by setting them on fire at dawn. He said I would hear a bang at dawn and I should realise that he had detonated these wires. At dawn I went to Alfred to borrow a hat. I went via Nobendibe's home. I went there to drink water. I then proceeded to Tembile's home. I knocked but I found that all the huts were locked. I C could notice a group of people at deceased's place. I then went to the homestead where there was a tribal ceremony. After getting my hat I went back to deceased's home. I saw that the windows were burnt. Deceased was lying next to the fireplace already dead. I then went back home.'

The Court a quo applied the doctrine of common purpose and held:

'Accused No 1 must have realised that these activities of accused D No 2 would result in the death of a person or persons in that hut and, although he did not do anything, the act of...