S v Mgedezi and Others

• Jurisdiction: South Africa
• Judgment Date: 30 September 1988
• Citation: 1989 (1) SA 687 (A)

S v Mgedezi and Others
1989 (1) SA 687 (A)

1989 (1) SA p687

Citation	1989 (1) SA 687 (A)
Court	Appellate Division
Judge	Botha JA, Smalberger JA, M T Steyn JA
Heard	September 12, 1988
Judgment	September 30, 1988

Flynote : Sleutelwoorde E

Criminal law — Murder — Mens rea — Common purpose — Group violence in mine compound where four team leaders killed — Salient feature of case was that no State witness saw any of the accused inflicting any injury upon any of the deceased — Trial Court convicting all accused on charge of murder and adopting global approach F of liability — On appeal Court finding trial Court had misdirected itself in not considering the evidence of each accused separately and individually and weighing up that evidence against the particular evidence of the individual State witnesses who implicated that accused — In the circumstances, accused could be liable only if certain G prerequisites are satisfied, namely (1) accused must be present where the violence was committed; (2) he must have been aware of the assault on the victim(s); (3) he must have intended to make common cause with those perpetrating the assault; (4) he must have manifested his sharing of the common purpose with the perpetrators of the assault by himself H performing some act of association with the conduct of the others; and (5) he must have had the requisite mens rea.

Criminal law — Murder — Mens rea — Common purpose — Inherent in the concept of imputing to an accused the act of another is the indispensable notion of acting in concert — Accused must share the common purpose consciously with the other person — A 'common' I purpose which is merely coincidentally and independently the same in the case of the perpetrator is not sufficient to render the latter liable for the act of the former.

Criminal procedure — Appeal — Appeal Court imposing sentence for an offence other than the one for which the accused was sentenced by J the trial Court (ie where conviction was altered on appeal) —

1989 (1) SA p688

A Appeal Court cannot antedate sentence in terms of s 282 of Criminal Procedure Act 51 of 1977 — Court only able to impose sentence from day of judgment and no effect can be given to the time which the accused has already spent in prison — Semble: the Legislature should give its urgent attention to this deficiency in the provisions of the B Criminal Procedure Act.

Headnote : Kopnota

In the absence of proof of a prior agreement, an accused who was not shown to have contributed causally to the killing or wounding of the victims (in casu, group violence on a number of victims) can be held liable for those events on the basis of the decision in S v Safatsa C and Others 1988 (1) SA 868 (A) only if certain prerequisites are satisfied. In the first place, he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of the assault on the victims. Thirdly, he must have intended to make common cause with those who were actually perpetrating the assault. Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others. Fifthly, the requisite mens D rea ; so, in respect of the killing of the deceased, he must have intended them to be killed, or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue.

Inherent in the concept of imputing to an accused the act of another on the basis of common purpose is the indispensable notion of an acting in concert. From the point of view of the accused, the common purpose must be one that he shares consciously with the other person. A E 'common' purpose which is merely coincidentally and independently the same in the case of the perpetrator of the deed and the accused is not sufficient to render the latter liable for the act of the former.

A sentence of imprisonment imposed by the Court of appeal for an offence other than the one for which the accused was sentenced by the Court a quo cannot be antedated in terms of s 282 of the Criminal Procedure Act 51 of 1977; the wording of the section does not permit of its application in the circumstances of this case, where an F accused's conviction of murder was altered to a conviction of assault with intent to do grievous bodily harm. This appears to be a serious deficiency in the provisions of the Act, which requires the urgent attention of the Legislature. The Court has no power to antedate a sentence otherwise than in accordance with the provisions of the section. The result is that if the appeal Court were now to impose a sentence of imprisonment of eighteen months, that sentence would commence to run from the date of this judgment and no effect can be G given to the time the accused has already spent in prison. This is a result that cannot be countenanced. If the time already spent in prison by the accused is taken into account in the sentence to be imposed now by making a deduction from the period of imprisonment to be fixed, the sentence will be artificial and will create a false impression on the accused's record of previous convictions in the future.

The appellants were convicted on four counts of murder and one count H of attempted murder. Accused Nos 1, 2 and 3 were sentenced to death on each of the murder charges and fifteen years' imprisonment on the attempted murder. Appellant No 4 was sentenced to 10 years' imprisonment on each of the five counts, the sentences to run concurrently. Accused Nos 5 and 6 were sentenced to seven years' imprisonment on each of the five counts. The trial arose as a sequel to a night of unrest in a mine compound. Tension had been running high on the mine between the workers and the team leaders, who were regarded as informers. Accused No 1, a I union leader, had repeatedly threatened the demise of team leaders at the union meetings. On the night in question groups of men, armed with an arsenal of home-made weaponry, had marauded various parts of the compound chanting songs of the imminent execution of leaders. In the course of the attack on a room shared by six team leaders, windows were stoned, beds upturned, inflammable glue had been poured over the door in an attempt to ignite it, the door had been hacked down and the room had been set alight. In the course of the attack four team leaders had J died. Two escaped, surviving the attack. There were two salient features of the

1989 (1) SA p689

A State case. The first point was that each of the State witnesses who identified a particular accused was well acquainted with the accused. The second was that no State witness saw any of the accused inflicting any injury upon any of the deceased which caused or contributed causally to the death of any of the deceased or of the person who had been assaulted in count 5. The trial Court had taken a global approach and rejected the defence versions en masse and it had drawn two inferences, namely (a) that each accused was present at the scene and participated in the execution of the team leaders and (b) the defences of all B were false beyond reasonable doubt. On appeal, the Court found that the trial Court had erred in precluding itself from performing its duty to consider the evidence of each accused separately and individually, to weigh up that evidence against the particular evidence of the individual State witness or witnesses who implicated that accused, and upon that basis then to assess the question whether the accused's evidence could C reasonably possibly be true. By assessing liability in respect of all the accused en bloc the trial Court had seriously misdirected itself. The Court then assessed the evidence against each accused and altered the verdict and sentences where appropriate.

Case Information

Appeal from convictions and sentences in the Transvaal Provincial D Division (Strydom J). Facts not material to this report have been omitted from the judgment of Botha JA.

DA Kuny SC (with him D A Smith) for the appellants referred to the following authorities: S v Khoza 1982 (3) SA 1019 (A); S v Daniëls en 'n Ander 1983 (3) SA 275 (A); S v Thomo 1969 (1) SA 385 (A); S v Madladla 1969 (2) SA 637 (A) at 640F - 641A; R v Mgxwiti 1954 (1) SA 370 (A); R E v Masuka 1965 (2) SA 40 (SR); S v Williams 1980 (1) SA 60 (A) at 63; S v Maxaba 1981 (1) SA 1148 (A); S v Dlamini 1984 (3) SA 360 (N); S v Shezi 1948 (2) SA 119 (A); S v Malinga 1963 (1) SA 692 (A); R v Chenjere 1960 (1) SA 473 (FC) at 476C - 477H; R v Bergstedt 1955 (4) SA 186 (A) at 188D - G; S v Kubeka 1982 (1) SA 534 (W) at 537D - H; S v Munyai 1986 (4) SA 712 (V) at 715D - J; S v Manyathi 1967 (1) SA 435 (A) at 439B - F F; S v Sigwahla 1967 (4) SA 566 (A); S v Bowens 1971 (4) SA 646 (A); S v Babada 1964 (1) SA 26 (A) at 27E - F; S v M 1976 (3) SA 644 (A); R v Balla and Others 1955 (3) SA 274 (A); S v Sebeko 1968 (1) SA 495 (A); S v Mmusi 1968 (1) SA 545 (A); S v Dladla 1980 (1) SA 1 (A) at 3G - 4; S v Zinn 1969 (2) SA 537 (A); S v Ivanisevic 1967 (4) SA 527 (E); S v G Hlapezula 1965 (4) SA 439 (A) at 444; S v Whitehead 1971 (4) SA 613 (A) at 618H; S v Fazzie 1964 (4) SA 673 (A) at 684; S v Pillay 1977 (4) SA 531 (A); Burchell and Hunt South African Criminal Law and Procedure vol I at 430 - 1; Hiemstra Suid-Afrikaanse Strafproses 3rd ed at 597 and 598.

A F du Toit for the State referred to the following authorities: R v Dhlumayo and Another 1948 (2) SA 677 (A) at 705; R v Dladla and H Others 1962 (1) SA 307 (A) at 310C - E; S v Daniëls en 'n Ander 1983 (3) SA 275 (A) at 323E - F; S v Dlamini and Others 1984 (3) SA 360 (N); S v Khoza 1982 (3) SA 1019 (A) at 1049A - 1053D; S v Letsolo 1970 (3) SA 476 (A) at 476F - H; S v Mafela 1980 (3) SA 825 (A); S v Madlala 1969...