S v Musingadi and Others

JurisdictionSouth Africa
Citation2005 (1) SACR 395 (SCA)

S v Musingadi and Others
2005 (1) SACR 395 (SCA)

2005 (1) SACR p395


Citation

2005 (1) SACR 395 (SCA)

Case No

22/95

Court

Supreme Court of Appeal

Judge

Farlam JA, Mthiyane JA and Comrie AJA

Heard

August 31, 2004

Judgment

September 23, 2004

Counsel

J P Barnard for the appellants.
J H C van Heerden for the State.

Flynote : Sleutelwoorde F

General principles of liability — Common purpose — Dissociation from common G purpose — Appellants by departing from scene and leaving helpless deceased to her probable fate must be taken to acquiesce in expansion of common purpose unless they effectively take steps to dissociate themselves — Not every act of apparent disengagement will constitute effective dissociation and much will depend on circumstances — Greater accused's H participation, and further commission of crime progressed, much more required of accused to constitute effective dissociation — Accused may even be required to take steps to prevent commission of crime or its completion — It is in this sense a matter of degree and in borderline case calls for sensible and just value judgment. I

Headnote : Kopnota

The four appellants were convicted of murder and robbery with aggravating circumstances. They were found guilty of killing the deceased by assaulting and strangling her to death and attempting to poison her, whereafter they took cash from the safe from her parents' house. The third and fourth appellants purported to disassociate themselves from the murder as they J

2005 (1) SACR p396

averred that they, after tying up and blindfolding the deceased, refused to partake in poisoning her. A They then left the scene while the first and second appellants attempted to poison the deceased. The first and second appellants were sentenced to death for the murder and to 12 years' imprisonment each for the robbery. The third and fourth appellants were sentenced to effective terms of imprisonment of 18 and 20 years each. The trial Court granted them leave to appeal against their convictions only. B

Held, that the third and fourth appellants, by departing the scene, and leaving the helpless deceased to her probable (and actual) fate, must have been taken to have had acquiesced in the expansion of the common purpose unless they effectively took steps to disassociate themselves from that development. (Paragraph [34] at 407c.)

Held, further, that not every act of apparent disengagement would constitute an effective disassociation. Much would depend on the C circumstances: On the manner and degree of an accused's participation; on how far the commission of the crime had proceeded; on the manner and timing of disengagement; and, in some instances, on what steps the accused took or could have taken to prevent the commission or completion of the crime. The list of circumstances was not exhaustive. To reduce this composite of variables to a workable rule of law may be artificial, even unwise. (Paragraph [35] at 407h - i.) D

Held, further, that the greater the accused's participation, and the further the commission of the crime had progressed, then much more would be required of an accused to constitute an effective disassociation. He may even be required to take steps to prevent the commission of the crime or its completion. It is in this sense a matter of degree and in a borderline case calls for a E sensible and just value judgment. (Paragraph [39] at 409g - h.)

Held, further, that in casu, the third and fourth appellants did not do enough to disassociate themselves. (Paragraph [40] at 409i.)

Held, further, that the appeals of all four appellants against their convictions for murder and robbery with aggravating circumstances were dismissed, and those convictions were confirmed. The F appeal of the first and second appellants against their sentences for murder succeeded. The sentence of death was set aside and replaced by a sentence of 16 years' imprisonment and life imprisonment respectively to be served concurrently with the sentences of 12 years' imprisonment each for the robbery. (Paragraph [54] at 413f - h.) G

Annotations:

Cases cited

Reported cases

Minister van Polisie v Ewels 1975 (3) SA 590 (A): referred to

R v Becerra and Cooper (1976) 62 Cr App R 212 (CA): compared

R v Bezuidenhout 1954 (3) SA 188 (A): referred to H

R v Blom 1939 AD 188: referred to

R v Chimbamba and Another 1977 (4) SA 803 (RA): referred to

R v Grundy [1977] Criminal Law Review 543 (CA): compared

R v Valachia and Another 1945 AD 826: considered

S v A en 'n Ander 1993 (1) SACR 600 (A): dictum at 606g - h applied

S v Beahan 1992 (1) SACR 307 (ZS): applied I

S v Cloete 1994 (1) SACR 420 (A): applied

S v Dlamini; S v Dladla and Others; S v Joubert; S v Schietekat 1999 (2) SACR 51 (CC) (1999 (4) SA 623; 1999 (7) BCLR 771): referred to

S v Lungile and Another 1999 (2) SACR 597 (SCA): applied

S v Makwanyane and Another 1995 (2) SACR 1 (CC) (1995 (3) SA 391; 1995 (6) BCLR 665): referred to J

2005 (1) SACR p397

S v Mcasa and Another 2005 (1) SACR 388 (SCA): referred to A

S v Nduli and Others 1993 (2) SACR 501 (A): referred to

S v Nkomo and Another 1966 (1) SA 831 (A): referred to

S v Nomzaza 1996 (2) SACR 14 (A): referred to

S v Nzo and Another 1990 (3) SA 1 (A): referred to

S v Singo 1993 (1) SACR 226 (A) (1993 (2) SA 765): applied

S v Zuma and Others 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401): applied B

White v Ridley (1978) 140 CLR 342: applied.

Case Information

Appeal against a decision of a Circuit Court sitting at Louis Trichardt (Marais J). The facts appear from the reasons for judgment, which was handed down by Comrie AJA, Farlam JA and Mthiyane JA concurring. C

J P Barnard for the appellants.

J H C van Heerden for the State.

Cur adv vult.

Postea (September 23). D

Judgment

Comrie AJA:

[1] In December 1994 the four appellants were convicted by a Circuit Court, comprising Marais J and assessors, sitting at Louis Trichardt, of:

(1)

Murder; and E

(2)

robbery with aggravating circumstances.

A fifth accused, Ms Martha Mahtshemule, was acquitted. The first and second appellants were sentenced to death for the murder and to 12 years' imprisonment each for the robbery. In terms of s 316A of the Criminal Procedure Act 51 of 1977, as it then stood, they enjoyed an automatic right of appeal to this Court, which they exercised. The third and fourth appellants were sentenced to effective terms of F imprisonment of 18 and 20 years each. The trial Court granted them leave to appeal against their convictions only. Now, almost ten years later, the appeal is before this Court. G

[2] Upon our enquiry counsel were unable to furnish a full or complete explanation for this highly regrettable delay. Mr Van Heerden for the State undertook to bring the matter to the attention of the Director of Public Prosecutions, Pretoria, and to institute inquiries, all with a view to avoiding a repetition. It is often said that justice delayed is justice denied. While this may be an overstatement in some contexts, it does underline the need for H reasonable expedition. The present is not a case where leave to appeal was granted late or the appeal itself noted late. In the ordinary course it should have come before this Court eight or more years ago. The unexplained delay is to be deprecated.

[3] The events giving rise to the convictions occurred in early July 1993. By the end of October practically all the evidence upon I which the State eventually sought to rely had been assembled. That was before the interim Constitution (the Constitution of the Republic of South Africa Act 200 of 1993) came into force. The trial itself, however, was heard during the last quarter of 1994, and thus under that Constitution. In J

2005 (1) SACR p398

Comrie AJA

S v Makwanyane and Another 1995 (2) SACR 1 (CC) (1995 (3) SA 391; 1995 (6) BCLR 665) the Constitutional Court A declared the death sentence unconstitutional. By a subsequent amendment to the Criminal Procedure Act the death sentence was removed from the statute book (see the Criminal Law Amendment Act 105 of 1997, s 34). Counsel were correctly agreed that in the event of the murder convictions of first and second appellants being sustained, their death sentences must be set aside and replaced by other proper sentences. B (See s 1(10) of Act 105 of 1997.)

[4] Appellants 3 and 4 were both arrested in Randburg on 30 August 1993. They were conveyed to Louis Trichardt where, later that same day, they made statements to magistrates Gericke and Boshoff respectively. The admissibility of these statements was contested on C the ground that they had not been made freely and voluntarily. After a trial within a trial the Court below received the statements in evidence, although at the same time it rejected statements made to magistrates by appellants 1 and 2. All four statements complied with the requirements of s 217(1)(b) of the Criminal Procedure D Act, with the consequence that the onus rested upon the appellants to prove on a balance of probabilities that their statements were not freely and voluntarily made (the so-called reverse onus). The trial Court held that appellants 3 and 4 had not discharged that onus. The reverse onus was subsequently held to be unconstitutional: S v Zuma and E Others 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401). The declaration of invalidity does not apply to the present matter: See para [44] of the judgment of Kentridge AJ. It should be noted, moreover, that the trial Court also said:

'Dit is onnodig om op die bewyslas te steun. Ons bevind dat die bekentenisse bo redelike twyfel vrywilliglik deur beskuldigdes 3 en 4 gemaak is.' F

[5] The deceased, Mrs Dercksen, was a middle-aged woman who, with her husband, lived on the farm Doornspruit in the Louis Trichardt...

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11 practice notes
  • 2015 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...52S v Muller 2012 (2) SACR 545 (SCA) ................................................... 122S v Musingadi 2005 (1) SACR 395 (SCA)............................................. 80-81S v Mvelase 1969 (4) SA 121 (N) ......................................................... 370S v Myende 1985 (1......
  • S v Mzwempi
    • South Africa
    • Invalid date
    ...(2008 (3) SA 608; 2008 (5) BCLR 451): H referred to S v Motaung and Others 1990 (4) SA 485 (A): referred to S v Musingadi and Others 2005 (1) SACR 395 (SCA): referred S v Nduli and Others 1993 (2) SACR 501 (A): referred to S v Ngobozi 1972 (3) SA 476 (A): referred to S v Nzo and Another 199......
  • 2012 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...433, 439-440, 443-444S v Mudau 1999 (1) SACR 636 (W) .................................................... 392, 397S v Musingadi 2005 (1) SACR 395 (SCA) ............................................ 402-403S v Mzimba 2012 (2) SACR 233 (KZP) ................................................ 405......
  • 2010 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...425S v Mukwevho 2010 (1) SACR 349 (GSJ) .............................................. 272-273S v Musingadi 2005 (1) SACR 395 (SCA) ............................................. 124,164S v Myende 1985 (1) SA 805 (A) .................................................................. 290S v M......
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5 cases
  • S v Mzwempi
    • South Africa
    • Invalid date
    ...(2008 (3) SA 608; 2008 (5) BCLR 451): H referred to S v Motaung and Others 1990 (4) SA 485 (A): referred to S v Musingadi and Others 2005 (1) SACR 395 (SCA): referred S v Nduli and Others 1993 (2) SACR 501 (A): referred to S v Ngobozi 1972 (3) SA 476 (A): referred to S v Nzo and Another 199......
  • S v Mahlangu and Others
    • South Africa
    • Invalid date
    ...56 (W): referred to B S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222; [2001] 3 All SA 220): applied S v Musingadi and Others 2005 (1) SACR 395 (SCA): referred to C S v Obisi 2005 (2) SACR 350 (W): Case Information Imposition of sentence in respect of a number of accused convicted of a......
  • S v Mcasa and Another
    • South Africa
    • Invalid date
    ...regards the question of sentence the respondent applied to the Full Court to increase the sentence. That application was rejected upon 2005 (1) SACR p395 Mthiyane the basis that that trial Court had properly exercised its discretion in the matter. No request for an increase in A the sentenc......
  • S v Kekala
    • South Africa
    • North West High Court, Mafikeng
    • 1 January 2009
    ...to commit the crime. The law relating to withdrawal or disassociation has been stated by Comary AJA in S v Msigingadi & Others 2005 (1) SACR 395 (SCA) 407 C to 408 D as "That our law recognises the defence of dissociation (in some other jurisdictions called withdrawal) is clear. S v Singo; ......
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6 books & journal articles
  • 2015 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...52S v Muller 2012 (2) SACR 545 (SCA) ................................................... 122S v Musingadi 2005 (1) SACR 395 (SCA)............................................. 80-81S v Mvelase 1969 (4) SA 121 (N) ......................................................... 370S v Myende 1985 (1......
  • 2012 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...433, 439-440, 443-444S v Mudau 1999 (1) SACR 636 (W) .................................................... 392, 397S v Musingadi 2005 (1) SACR 395 (SCA) ............................................ 402-403S v Mzimba 2012 (2) SACR 233 (KZP) ................................................ 405......
  • 2010 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...425S v Mukwevho 2010 (1) SACR 349 (GSJ) .............................................. 272-273S v Musingadi 2005 (1) SACR 395 (SCA) ............................................. 124,164S v Myende 1985 (1) SA 805 (A) .................................................................. 290S v M......
  • 2005 index
    • South Africa
    • Juta South African Criminal Law Journal No. , August 2019
    • 16 August 2019
    ...397S v Moya 2004 (2) SACR 257 (W) ............................................................ 369–371S v Musingadi and Others 2005 (1) SACR 395 (SCA) .............................. 340–341S v Muruven 1953 (2) SA 779 (N) ........................................................... 96S v Mvam......
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