S v Nkosi
Jurisdiction | South Africa |
Judge | Mpati P, Shongwe JA and Majiedt JA |
Judgment Date | 22 September 2015 |
Citation | 2016 (1) SACR 301 (SCA) |
Docket Number | 20727/14 [2015] ZASCA 125 |
Hearing Date | 09 September 2015 |
Counsel | M van Wyngaard for the appellant. E Sihlangu for the state. |
Court | Supreme Court of Appeal |
Majiedt JA (Mpati P and Shongwe JA concurring):
E [1] 'Fair is foul and foul is fair,' said the three witches in the opening scene of Shakespeare's Macbeth. In the course of an armed robbery gone horribly wrong for the robbers, one of them, Mr Bongani Jabulani Skhosana, was fatally wounded by the robbery victim, Mr Dennis Sikhumbuso Ngobese, who lawfully shot Mr Skhosana in self-defence. F The question that arises is whether the appellant, Mr Thabo Macbeth Nkosi, who was part of the gang of armed robbers and who was accused number two at the trial, was correctly held criminally liable by the court below (North Gauteng High Court, Pretoria, Molopa J sitting as court of first instance) for Mr Skhosana's death. What is fair and what is foul in these circumstances, with regard to the appellant's culpability for his G fellow robber's death at the hands of the victim, is the vexed question that confronts us.
[2] The facts are largely common cause or uncontroverted. Gleaned from Mr Ngobese's testimony, they are as follows. Mr Ngobese owned a coalyard in Wattville, Benoni. When he was about to close his business H at around 18h00 on that fateful day, a vehicle with five occupants arrived. Two of the occupants entered his office. Mr Ngobese had been busy cashing up the day's takings in his office and he intimated to the robbers, who demanded money, that they should take the cash lying on his office desk. His suggestion to the robbers that they search him was I disdainfully brushed aside, with dire consequences for the robbers. On his own accord, Mr Ngobese removed his cellphones and his wristwatch and placed them on the table. The deceased entered the office after his two fellow robbers. Like them, he was in possession of a firearm which he waved around, issuing threats and eventually firing a shot which hit one of the coalyard employees, Mr Dennis Mabaso, in the elbow. J Mr Ngobese described the deceased's appearance as wild and agitated.
Majiedt JA (Mpati P and Shongwe JA concurring)
Mr Ngobese was lying down, as he had been instructed, when a struggle A ensued between him and the deceased. In the process he grabbed the deceased's wrist and a shot went off from the deceased's firearm and passed Mr Ngobese's left side. Mr Ngobese was able to draw his firearm and shot the deceased twice in his chest. Thereafter he shot back at the three robbers who were firing at him. It appears on the evidence to have B been a wild shoot-out in that small office. In the end, the deceased was fatally wounded, the erstwhile accused number one was shot in the pelvis and Mr Ngobese sustained a gunshot wound to the leg. The appellant was convicted on one count of murder, two counts of robbery with aggravating circumstances and one count each for the unlawful possession of a firearm and ammunition. C
[3] The only issue before us is whether the trial court had correctly convicted the appellant of the murder of his fellow robber. The appeal is with leave of this court. The broad thrust of the appellant's contentions is that the deceased had embarked on a 'frolic of his own' which caused his own death, and that the state had failed to prove that the appellant D had the requisite intent for murder. The conviction appears to have been based on dolus eventualis, an aspect which becomes apparent only in the judgment on sentence. Regrettably the learned judge said nothing about this central issue in the judgment on the merits, save for the finding that 'the guilt of all three accused has been proved [on all five counts]' and E that '(t)he accused participated/acted in pursuance of a common purpose'. The rest of the evidence led at the trial was broadly consonant with the version advanced by Mr Ngobese. It is against this factual backdrop that the narrow, circumscribed issue must be decided. The appellant and his co-accused all denied having been present at the scene and relied on alibi defences which were rejected by the trial court. F
[4] Counsel for the appellant placed strong reliance on S v Molimi and Another 2006 (2) SACR 8 (SCA) ([2006] ZASCA 43). In Molimi, however, the facts were materially different. In the course of an armed robbery at a shopping mall one of the robbers took a young man hostage G inside a store. A bystander fired at the robber but struck the hostage instead, fatally wounding him. The robbery itself had been completed, albeit not without complications. One of the charges against the accused was in respect of the murder of the hostage. As is the case here, the primary contention on behalf of the defence was that the death of the hostage was not foreseeably part of the common purpose to perpetrate H the armed robbery. In upholding this contention Cachalia AJA made the following findings in paras 35 – 36:
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2016 index
...62S v Nkomo 2007 (2) SACR 198 (SCA) ................................................. 71-2, 198S v Nkosi 2016 (1) SACR 301 (SCA) .................................................... 59, 61S v Nomzaza 1996 (2) SACR 14 (A) ..................................................... 77S v NS [2015] ......
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2016 index
...62S v Nkomo 2007 (2) SACR 198 (SCA) ................................................. 71-2, 198S v Nkosi 2016 (1) SACR 301 (SCA) .................................................... 59, 61S v Nomzaza 1996 (2) SACR 14 (A) ..................................................... 77S v NS [2015] ......