S v Mshumpa and Another

• Jurisdiction: South Africa
• Citation: 2008 (1) SACR 126 (E)

S v Mshumpa and Another
2008 (1) SACR 126 (E)

2008 (1) SACR p126

Citation	2008 (1) SACR 126 (E)
Case No	CC27/2007
Court	Eastern Cape Division
Judge	Froneman J
Heard	May 11, 2007
Judgment	May 11, 2007
Counsel	G Cilliers for the first accused.; T Price for the second accused.; M Marais for the State.

Flynote : Sleutelwoorde

B Murder — Attempted murder — What constitutes — Pregnant woman shot in abdomen with intent to kill unborn child — Risk of death by shooting someone in abdomen foreseeable — Direct intent to kill child not excluding dolus eventualis in respect of mother — Accused guilty of attempted murder of mother.

C Murder — Attempted murder — What constitutes — First accused shooting second accused in shoulder as part of conspiracy to make attack on third party seem genuine — Neither suicide nor attempted suicide constituting crimes — Second accused not guilty of attempted murder as co-perpetrator — First accused guilty, since he must have foreseen risk of death D resulting from shooting of second accused — Second accused's consent to shooting not rendering first accused's conduct lawful.

Murder — What constitutes — Intentional killing of unborn child by third party — Court refusing to extend definition of murder to include killing of unborn child — Would offend against constitutional principle of legality — Legislature better suited to effect such change — Constitution, s 35(3)(l).

E Evidence — dmissibility — Privilege — Statement to clergyman — Accused asking clergyman to convey contents of their conversation to victim and to accused's own family — For purposes of legally protected privilege (on assumption that such privilege existing in respect of spiritual advisors or as F aspect of right to privacy), fact that accused relinquished confidentiality of conversation meaning that clergyman obliged and entitled to divulge to court what had been said during conversation with accused.

Evidence — Admissibility — Statement to police officer — Whether defence may compel ruling on admissibility of statement before deciding whether to call accused to testify in trial-within-trial — Situation not analogous to G application for discharge of accused — Underlying consideration that person should not be prosecuted in absence of a minimum of evidence not normally arising in trial-within-trial held to determine admissibility of statement, where issue not guilt but voluntariness of statement — Accused not prejudiced by having to testify — If anything bearing upon guilt (as H opposed to voluntariness of statement) arising from his evidence, presiding judicial officer entitled to order that evidence not be used to accused's detriment in main trial — Criminal Procedure Act 51 of 1977, s 174.

General principles of liability — Conspiracy — Accused conspiring with two others to commit various offences — Accused himself convicted of same offences — Amounting to duplication to convict accused of conspiracy in I addition to his convictions on actual offences — Accused also guilty of inciting another to commit murder — Fact that other not agreeing to do it, or that proposed method impractical, no defence to charge of incitement.

Sentence — Imposition of — Factors to be taken into account — Psychopathy — Accused a sociopath with psychopathic traits — Disorder not constituting J mitigating factor.

2008 (1) SACR p127

Contempt of court — What constitutes — Two inappropriate reports appearing A in local newspapers concerning the sentences to be imposed in widely reported trial — Semble: Reports amounting to contempt in sense of publication of information/comment tending to prejudice outcome of case — Press and those interviewed by them urged to act responsibly, especially when case not yet finalised.

Headnote : Kopnota

Following an incident in which a pregnant woman, S, was shot in the abdomen, B resulting in the death of her unborn child, and in which the father of the child, one B, was shot in the shoulder, the alleged assailant, M, and B were arraigned on a variety of charges. M and B were both charged with the murder of the unborn child, with the attempted murder of S and the attempted murder of B, with attempting to defeat or obstruct the course of C justice, and with the unlawful possession of a firearm and ammunition. B faced two further charges of statutory conspiracy, incitement, instigation or procurement of other persons to commit, firstly, the offences listed above and, secondly, to kill two other people, HJ and RS. Both accused pleaded not guilty to all the charges. M, however, did not dispute his participation in the events, but averred that he had acted under compulsion and threats D from B and an associate of B, one T. The shootings and the events following thereon were largely common cause; what had preceded these events required determination. In addition, a number of legal questions fell to be decided. Among these were: whether the intentional killing of an unborn child in the womb of its mother constituted murder; whether certain statements made by B to a clergyman and to a senior police officer were E admissible; and whether it was appropriate for the defence to attempt to obtain a ruling on the admissibility of the statement to the police officer before deciding whether or not to call B in the trial-within-a-trial held to determine its admissibility.

Held, regarding the admissibility of B's statement to a clergyman, that the fact F that B had elected not to testify in the trial-within-a-trial held to determine the admissibility meant that there was no basis on which to reject the evidence of the State witnesses. The clergyman had met with B with the latter's permission, and B had asked him to convey the contents of their conversation to S and to his own family. For the purposes of legally protected privilege, assuming - without deciding - that such a privilege G might exist in respect of spiritual advisors or as an aspect of the right to privacy, the fact that B had relinquished the confidentiality of the conversation meant that the clergyman had been obliged and entitled to divulge to the court what had been said during that conversation. With no basis to suggest that the statement had not been made freely and voluntarily, and without undue influence, it was admissible in evidence. (Paragraph [12] H at 135 g–136d.)

Held, further, regarding the defence's attempt to obtain a ruling on the admissibility of the statement to the police officer before deciding whether or not to call B to testify in the trial-within-a-trial, that the situation was not analogous to an application for the discharge of an accused at the end of the State's case under s 174 of the Criminal Procedure Act 51 of 1977. In a I s 174 application the underlying consideration was that a person should not be prosecuted in the absence of a minimum of evidence. This consideration did not normally arise in a trial-within-a-trial held to determine the admissibility of a statement, where the issue was not the accused's guilt, but merely the voluntariness of the statement. The same arguments for inadmissibility could be raised after the accused had made his decision J

2008 (1) SACR p128

A whether to testify or not. If admissibility could be determined on an objective basis alone the accused's testimony, or lack of it, would not change the position. On the other hand, if the enquiry had a subjective side the reason for a purely objective enquiry fell away entirely. Either way the accused would not suffer any prejudice. If anything bearing upon his guilt, as opposed to the mere voluntariness or otherwise of his statement, arose B from his evidence, any prejudice flowing therefrom could be addressed by the presiding judicial officer ordering that the evidence should not be used to the detriment of the accused in the main trial. (Paragraph [16] at 137c–g and 138d–f.)

Held, further, that the version ultimately testified to by B in the trial-within-a-trial was neither credible nor coherent. He claimed that he had made the C statement only in response to threats by a senior police officer; however, B claimed further that the statement he had made was not an incriminating one, and that the officer had written down certain things that he had not said. This was simply being too clever by half. While it often happened that an accused claimed to have been forced to make an untrue incriminating statement, for B to state that he had been forced by threats to make a true, D non-incriminating statement, made little sense. There was, in addition, no reason to reject the evidence of the police officers concerned, which had not been seriously challenged in cross-examination. The suggestion that the officer who had taken down the statement, and who was himself not involved in the investigation of the case, had somehow fabricated incriminating details, was unconvincing. Accordingly, the statement had been E shown beyond reasonable doubt to have complied with the requirements for admissibility under s 217 of the Criminal Procedure Act. (Paragraphs [17]–[19] at 138f–139f.)

Held, further, returning to the main trial, that it was common cause that M, B and T all knew each other well. On the morning of the incident B had brought M and T to town in his vehicle. Later that morning, when M shot F S and B, B had not protested. When M and T were arrested a week later, they had admitted their involvement to the police. T had agreed to meet B and the conversation between them was taped; nowhere in that conversation had B protested his innocence. B had made certain arrangements with T concerning payment for both T and M, and had discussed what needed to be done with certain items taken by M from S and himself; B had G also enquired about what had happened to the gun that M had used. On these undisputed...