S v Nzo and Another

• Jurisdiction: South Africa
• Judge: Hefer JA, Nestadt JA and M T Steyn JA
• Judgment Date: 08 March 1990
• Citation: 1990 (3) SA 1 (A)
• Hearing Date: 23 November 1989
• Court: Appellate Division

Hefer JA:

From the second half of 1981 to May 1983 a group of terrorists operated in Port Elizabeth. They had been sent by the African National Congress ('the ANC') and had infiltrated the country from Lesotho. First to arrive, were James and Walk Tall. They were followed in November 1982 F by the present first appellant and two confederates, Joe and Mkuseli. Shortly thereafter Walk Tall returned to Lesotho and from then onwards first appellant was the leader of the group. Second appellant, a member of the ANC who was employed in the city, acted as the group's so-called underground contact. In that capacity he arranged for their accommodation in the homes of local residents and took charge of and saw G to the concealment of considerable quantities of arms and explosives despatched to him from Lesotho for use by the terrorists. True to custom the group concentrated its attention on public buildings like those in which the magistrates' courts and the administration board were situated; through its activities these buildings as also a shopping H centre and a railway track at Swartkops were extensively damaged by explosions in which a number of people were injured. A fuel depot was selected as the next target but before it could be attacked certain incidents occurred which caused a dramatic turn of events.

James was killed in January 1983 in the explosion in the I administration board building in New Brighton. Before his death he had been billeted in the house of Vukile Tshiwula. On 10 April 1983 Mrs Tshiwula, whose marriage had suffered as a result of her husband's association with the group, threatened to lay a charge against Tshiwula for having harboured James. The threat was uttered in the house where first appellant was staying and was overheard by him. He reported it to J Joe who warned Mrs

Hefer JA

A Tshiwula that he would shoot her were she to 'combine her family affairs' with the terrorists since she knew that he was a terrorist himself. Shortly afterwards Tshiwula left his wife and three weeks later, on the evening of 8 May 1983, Joe murdered Mrs Tshiwula.

During the morning of 8 May 1983 first appellant happened to pass B through Aliwal North en route to Lesotho when he was accosted by members of the local security branch and found to be in possession of an identity document that had apparently been tampered with. Upon being questioned about the document he revealed to the police that he had been trained as a terrorist and that he had been involved in the terrorist campaign in Port Elizabeth. (His disclosures will later be dealt with in C detail.) As a result of information that he gave the police the following day, second appellant was arrested. Several other arrests followed but Joe managed to escape to Lesotho and was never brought to justice.

The appellants (as accused Nos 1 and 2) and nine co-accused were subsequently charged in the Eastern Cape Provincial Division with a variety of offences including the murder of Mrs Tshiwula. On the murder D charge (count 7) the appellants alone were convicted. With leave granted by the trial Judge they have now appealed against their convictions and sentences on that count.

The trial Court rightly found that the appellants could not be E convicted of the murder as co-perpetrators since neither of them had taken any part therein. The crime was nevertheless found to have been committed with the aim of preventing the deceased from giving information to the police that could compromise the members of the group and their local supporters and impede the successful performance of their task. It was committed, the Court found, in the execution of the common purpose. Since the murder had been foreseen by the appellants and F since they had associated themselves with and persisted in furthering the common design despite such foresight, it was an act for which they were legally responsible. How the conclusion was arrived at that they had foreseen the possibility of the murder and were responsible for it appears from the following passages from the Court's judgment:

G 'Turning to the facts, there is no evidence here of a common purpose to kill or to attack or injure, whether aimed at the deceased or anyone else. What did exist, however, was a common purpose on the part of the terrorists and some accused to commit acts of sabotage, in the execution of which design the possibility of certain categories of fatality must have been foreseen and, by inference, were foreseen by the participants H to that common purpose. This conclusion is based on the extent and locality of the acts of sabotage proved to have been attributable to the group concerned, the fact that these were going to be effected by explosives, and the possession by the terrorists of lethal weaponry.'

Having indicated further that the parties to the common purpose must have foreseen the possible - if not the probable - death of those who might come within the range of the explosions and others who might try I to forestall them, the trial Judge proceeded as follows:

'As to what must have been foreseen as regards potential or likely informers there is evidence that ANC pamphlets have described as traitors certain persons who have given evidence as State witnesses in prosecutions in which the accused have been ANC members or supporters. In those pamphlets it has been urged that such witnesses be killed. Other ANC publications have advocated that informers

Hefer JA

A be treated as traitors.... The conclusion is justified that the attitude of the organisation towards informers would have been no less belligerent towards anyone who threatened to give information about its activities, or about its supporters and what they were doing. Indeed, in that sort of situation, there would be even more reason to take action before any disclosure were made rather than afterwards. The organisation's attitude in these general respects must have been known to the terrorists and to accused Nos 1 and 2, all of whom were members B of the ANC and must have been known from the inside, as it were, how those at the head of the organisation thought and acted.

In the context of the mission itself, on which the terrorists concerned were engaged, the need to prevent disclosure being made by a threatening informer would clearly have been keenly felt. They stood to be exposed far away from their base and the secrecy and success of their C mission would thereby be endangered. This risk was one that they must have foreseen before ever they entered South Africa on this mission.... Another person who would necessarily have been aware of the problem of what can be called a security leak was accused No 2 who was responsible, with Mavimbela (an ANC official with whom second appellant dealt in Lesotho), for organising the mission and who was thereafter responsible for seeing to the storage of its armoury and explosives and for finding D the terrorists accommodation. The matter of safe accommodation was of particular importance. Obviously he had to make every endeavour to find households among the members of which there was the least possibility of loose talk and any security risk. He must necessarily have been as much on the watch for that sort of danger materialising, as were the terrorists themselves.... In all these circumstances the inference is overwhelming that the terrorists and accused No 2 foresaw that a E threatening informer would probably, or at least might possibly, be dealt with drastically before he could contact the police. Drastic action in this situation, we consider, involved the foreseen possibility of the person concerned being killed.'

It will be noticed that the death of a 'threatening informer' was thus F found to be a foreseen possibility even before Mrs Tshiwula had threatened to expose her husband and before Joe had warned her of the possible consequence of her threat. In regard to the threat and Joe's warning the learned Judge said:

'That foreseen possibility was confirmed by Joe's warning on 10 April which was heard by accused No 1. The compelling inference, undisturbed G by evidence from accused No 2, is that he also knew of that warning.... To sum up, we find beyond reasonable doubt that accused No 1 must, on all the evidence and at all material times from 10 April onwards, have foreseen the killing of the deceased possibly occurring in the prosecution of the common purpose. In other words, he must have foreseen the possibility that it might become necessary for Joe to kill her in order to preserve the security and success of the mission on which they were engaged. With that foresight, and reckless as to whether such death H occurred, he continued to associate in the common purpose right up to the time of his arrest eight hours before the murder.... On the same line of reasoning indicated in respect of accused No 1, we find that beyond reasonable doubt the circumstances were such that accused No 2 must have foreseen the possibility that the deceased might implement her threat to make her report to the police, and he must have contemplated I that in such event fatality might well result, if not would result. Aware of these considerations, he continued in the furtherance of the common purpose, and was still so associating in it at the time of the murder.'

As will presently appear the finding that the appellants foresaw the possibility of the murder is crucial. Yet their counsel did not seriously challenge it; and it is plainly correct. When the terrorists J came to South

Hefer JA

A Africa and when second appellant became associated with them they must, as the trial Judge has shown, all have foreseen the possibility that people who threatened the secrecy of their mission and the proper performance of their task might have to be killed. That possibility became a very real one when Mrs Tshiwula uttered the threat. Of this both the...