S v Mzwempi

• Jurisdiction: South Africa
• Citation: 2011 (2) SACR 237 (ECM)

S v Mzwempi
2011 (2) SACR 237 (ECM)

2011 (2) SACR p237

Citation	2011 (2) SACR 237 (ECM)
Case No	284/2004
Court	Eastern Cape High Court, Mthatha
Judge	Alkema J, Ebrahim J and Maqubela AJ
Heard	September 17, 2010
Judgment	April 28, 2011
Counsel	KD Qitsi (instructed by the Legal Aid Board) for the appellant.; WM Siyo (DPP, Mthatha) for the State.

Flynote : Sleutelwoorde

General principles of liability — Common purpose — State of law as to common purpose, as affirmed by Constitutional Court, set out — Distinction to be drawn between liability based on prior agreement and liability based on active association — Bases of liability on each described — Actus reus of accused constituted either by conclusion of prior agreement or by F accused's active association in crime — Affirmation of these principles by Constitutional Court rendering earlier Supreme Court of Appeal decision in S v Nzo and Another 1990 (3) SA 1 no longer binding.

Headnote : Kopnota

The state of the law in respect of criminal liability under the common purpose G doctrine seems to have become settled by the rule and approach adopted in S v Safatsa and Others 1988 (1) SA 868 (A); and S v Mgedezi and Others 1989 (1) SA 687 (A) — affirmed in S v Thebus and Another 2003 (2) SACR 319 (CC) (2003 (6) SA 505; 2003 (10) BCLR 1100). The salient features of the rule may perhaps be summarised as follows: First, a distinction needs to be drawn between liability based on a prior agreement, and liability based on active association. On either basis, the conduct imputed to the accused H is the conduct of the participants in the execution of their joint venture. Second, in the absence of a prior agreement, only the active association of the accused in the particular events which contributed to, or caused, the crime, triggers the principle of imputation in the manner described above. In this sense, liability arising from active association is much more restrictive. Such association will depend on the factual context of each case, I and must be decided with regard to the individual actions of each accused. In the assessment of the individual actions of each accused, the first four requirements for active association, as set out in S v Mgedezi at 705I – 706B, must be satisfied. Third, the other definitional elements of the crime, such as unlawfulness and culpa, must be present. The jurisprudential objections to liability under the common purpose doctrine was, to a great extent, met by the approach and rule in Safatsa/Mgedezi, in that the definitional element J

2011 (2) SACR p238

A of causation was replaced with active association with the conduct which caused the death or other crime. The causal element thus remained between the conduct and the death. The actus reus constitutes either the conclusion of the prior agreement, or the active association. Either of these events triggers the imputation principle. In this sense, the invasion of common-purpose liability into the common-law requirement of causation is B limited and serves the need for criminal expediency. (Paragraphs [75] – [79] at 253e – j.)

Following the judgments in S v Thebus and Another 2002 (2) SACR 566 (SCA); and S v Thebus and Another 2003 (2) SACR 319 (CC) (2003 (6) SA 505; 2003 (10) BCLR 1100), a court, in dealing with criminal liability under the common purpose doctrine, must follow the rule in Safatsa/Mgedezi in C preference to the extension of that rule in S v Nzo and Another 1990 (3) SA 1 (A). In the light of the judgments in Thebus (SCA) and Thebus (CC), the judgment in Nzo is no longer binding on a court. The development of the common purpose doctrine in South African criminal law since the judgment in Nzo, and particularly the constitutional development as formulated by Thebus (CC), has overtaken the judgment in Nzo. Notwithstanding, it D bears repetition that the Supreme Court of Appeal or Constitutional Court will undoubtedly have the last say on the subject. (Paragraphs [117] and [118] at 260h–j.)

Annotations:

Cases cited

Reported cases

Magmoed v Janse van Rensburg and Others 1993 (1) SACR 67 (A) (1993 (1) SA 777): referred to E

McKenzie v Van der Merwe 1917 AD 41: considered

Rex v Duma and Another 1945 AD 410: referred to

R v Garnsworthy and Others 1923 WLD 17: referred to

F Rex v Mkize 1946 AD 197: referred to

Rex v Shezi and Others 1948 (2) SA 119 (A): referred to

Rex v Tsosane and Others 1951 (3) SA 405 (O): referred to

S v Jama and Others 1989 (3) SA 427 (A): referred to

S v Khumalo en Andere 1991 (4) SA 310 (A): referred to

S v Madlala 1969 (2) SA 637 (A): discussed and not followed

S v Maelangwe 1999 (1) SACR 133 (NC): referred to G

S v Majosi and Others 1991 (2) SACR 532 (A): compared

S v Maxaba en Andere 1981 (1) SA 1148 (A): referred to

S v Mbanyaru and Another 2009 (1) SACR 631 (C): referred to

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

S v Molimi 2008 (2) SACR 76 (CC) (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 to

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 1990 (3) SA 1 (A): discussed and not followed I

S v Safatsa and Others 1988 (1) SA 868 (A): discussed and applied

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

S v Thebus and Another 2002 (2) SACR 566 (SCA): applied

S v Thebus and Another 2003 (2) SACR 319 (CC) (2003 (6) SA 505; 2003 (10) BCLR 1100): discussed and applied

S v Williams en 'n Ander 1980 (1) SA 60 (A): referred to. J

2011 (2) SACR p239

Case Information

Appeal to a full bench from a conviction and sentence in the Eastern A Cape High Court (Tshiki AJ). The facts appear from the reasons for judgment, particularly from the summary contained in para [36].

KD Qitsi (instructed by the Legal Aid Board) for the appellant.

WM Siyo (DPP, Mthatha) for the State. B

Cur adv vult.

Postea (April 28).

Judgment

Alkema J: C

[1] One of the archaic remnants of tribal life in the deep rural areas of South Africa is faction fighting. Reminiscent of the massacre of the McDonald clan by the Campbells in Glencoe, Scotland, during the night of 13 February 1692, the Manduzini clan attacked the Makhwaleni clan at Lusikisiki before sunrise, early in the morning of 3 October 2000.

[2] On the version of the McDonalds, the Campbell clan arrived at their D village, Glencoe, earlier that evening. Masquerading as peaceful travellers and capitalising on the misguided hospitality of the McDonalds, they occupied the latter's homes for the night. At the given hour and whilst their hosts were asleep, the Campbells massacred almost the entire McDonald clan. (On the version of the Campbells, they were simply E giving effect to the order from King William, to 'fall upon the rebels, the McDonalds of Glencoe, and put all to the sword, under 70'.) (Prologue: The Glencoe Song.)

[3] The Manduzini, sometimes referred to by the Makhwaleni as F 'Nombola's' (meaning the 'illiterate people'), used less stealth. They announced their attack before sunrise on 3 October 2000 by blowing on horns, firing shots in the air and shouting war cries. The Campbells used knives and swords; the Manduzini used rifles, shotguns and spears. The McDonalds were massacred in their sleep; the Makhwaleni fled their huts and ran into the bush, followed by their assailants. G

[4] It is not known whether the Makhwaleni fled in one group, or whether they broke up in groups and scattered in different directions. The impression I get from a reading of the record is that they scattered in different directions, some being followed and others not. H

[5] In the course of the next few hours, five of the Makhwaleni were killed, seven were severely wounded, and 28 of their huts were burnt down. Four accused from the Manduzini attacking force were duly charged with five counts of murder, seven counts of attempted murder and 28 counts of arson. The trial eventually started on 8 April 2006 before the High Court, sitting as a circuit court in Bizana, and I presided over by Tshiki AJ (as he then was).

[6] Based on the doctrine of common purpose, all the accused were found guilty as charged. Each accused was sentenced to life imprisonment in respect of each count of murder; 10 years' imprisonment in respect of each count of attempted murder; and five years' imprisonment J

2011 (2) SACR p240

Alkema J

A in respect of each count of arson. The court ordered all the counts to run concurrently with the sentence of life imprisonment imposed in respect of the murder counts.

[7] The accused applied for and were granted leave to appeal to the full bench of this division. Only accused No 4 prosecuted the appeal. The B others abandoned their appeal. I will refer to accused No 4 as the appellant in this judgment. His appeal is against conviction only. This is the judgment on appeal.

[8] The facts of the case are relatively straightforward and do not present any difficulties. As always, the difficulty lies with the application of the C facts to the legal principles. The broad issue in this appeal concerns the proper approach to the application of the common purpose doctrine on the proven facts. The narrow issue is more daunting and worthy of early identification. It is entirely a legal issue. The background thereto is the following:

D [9] The leading cases on the subject of common purpose remain the judgments of Botha JA in S v Safatsa and Others 1988 (1) SA 868 (A); and S v Mgedezi and Others 1989 (1) SA 687 (A). To avoid repetition and for the sake of convenience I will in the course of this judgment refer to the approach by the Appellate Division (as it was then known) in the E aforesaid two...