S v Safatsa and Others

• Jurisdiction: South Africa

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

1988 (1) SA p868

Citation	1988 (1) SA 868 (A)
Court	Appellate Division
Judge	Botha JA, Hefer JA, Smalberger JA, Boshoff AJA and M T Steyn AJA
Heard	November 2, 1987
Judgment	December 1, 1987

Flynote: Sleutelwoorde

E Murder — Mens rea — Common purpose — Act of one participant in causing death of deceased imputed as matter of law to other participants — Causal connection between act of each participant in causing death of F deceased need not be proved.

Criminal procedure — Evidence — Witnesses — Calling, examination and refutation of — Cross-examination of witness on privileged statement on grounds that it might assist accused in his defence — Privilege arising G out of making statement to attorney in course of obtaining professional legal advice — Witness refusing to waive privilege — Relaxation of rule of privilege (assuming rule can be relaxed) arising only in context of an exercise of judicial discretion by trial Judge — Minimum requirements to enable discretion to be exercised enumerated.

Criminal law — Public violence — Accused convicted of both public H violence and subversion under s 54(2) of Internal Security Act 74 of 1982 — In substance, punishable conduct same for both offences and nature of acts constituting basis for both convictions very similar in particular circumstances of case — Proof of one offence necessarily I constituting proof of other offence — Court on appeal holding that considerations of common sense and fairness dictating that accused should not be convicted of both offences — Conviction for public violence set aside.

Headnote: Kopnota

The principle applicable in cases of murder where there is shown to have been a common purpose is that the act of one participant in causing the death of the deceased is imputed, as a matter of law, to the other J participants (provided, of course, that the

1988 (1) SA p869

necessary mens rea is present). A causal connection between the acts of every party to the common purpose and the death of the deceased need not be proved to sustain a conviction of murder in respect of each of the participants.

Where in a criminal case it is sought to cross-examine a State witness on a statement which is privileged because it was made by the witness to an attorney in the course of obtaining professional legal advice, and such witness has refused to waive his rights to claim the privilege, and cross-examination has been sought on the grounds that it might assist B the accused in defending the charges against him, the question of relaxation of the rule of privilege (assuming that the rule of privilege can be relaxed) can arise only in the context of the exercise of a discretion by the trial Judge, based upon a consideration of all the information relevant to the question. The mere allegation on behalf of the accused that cross-examination may enure to his benefit, without more, cannot be sufficient to enable the discretion of the trial Judge to come into play. Minimum requirements would include information as to C how the statement came to be in the possession of the legal representative of the accused; whether the legal advice sought related to the trial itself and, if so, in what way; what the contents of the statement are (the statement could be handed up to the trial Judge for his perusal); and in what manner and with what prospect of success the cross-examination could avail the accused in countering the charges against him.

Where certain accused had been convicted in a Provincial Division both D of public violence (as a competent verdict where they had been charged with, but found not guilty of, murder) and of subversion under s 54(2) of the Internal Security Act 74 of 1982, the Court on appeal set aside their conviction of public violence on the grounds that it had not been proper for the accused to have been convicted of both crimes where, in substance, the punishable conduct had been the same for both. Not only were the acts of the accused which constituted the basis for each of the E convictions exactly the same, but the nature of those acts, in the particular circumstances of the case, was in substance very similar for the purposes of either of the convictions. The causing of 'general dislocation and disorder' and the preventing or hampering of 'the maintenance of the law and order' for the purposes of paras (a) and (e) of s 52(4) of the Act simultaneously involved the forceful disturbance of the public peace and security and invasion of the rights of others for the purposes of public violence. On the particular facts of the case F in casu, proof of the former necessarily constituted proof of the latter. The Court accordingly held that considerations of common sense and fairness dictated that the accused ought not to have been convicted of both crimes.

Case Information

Appeal from convictions and sentences in the Transvaal Provincial Division (Human AJ). The facts appear from the judgment of Botha JA.

G J Unterhalter SC (with him I Hussain) for the appellants referred to the following authorities: Tranter v Attorney-General and Another 1907 TS 415 at 422 - 3; R v Du Plessis 1924 TPD 103 at 124; R v Mokoena 1932 OPD 79 at 80; R v Rose 1937 AD 467; R v Difford 1937 AD 370 at 373; R v Cohen 1942 TPD 266 at 272; R v Steyn 1954 (1) SA 324 (A) at 335D; R v H Cele 1958 (1) SA 144 (N) at 153B - C; S v Sitwayi and Others 1961 (4) SA 538 (E); S v Nkosiyana and Another 1966 (4) SA 655 (A) at 658H - 659A; S v Thomo and Others 1969 (1) SA 385 (A) at 399H; S v Letselo 1970 (3) SA 476 (A); S v Moorman 1976 (3) SA 510 (A) at 512F; S v Bergh 1976 (4) SA 857 (A) at 864 et seq ; S v Prins en 'n Ander 1977 (3) SA 807 (A) at 814H; S v Williams en Andere 1980 (1) SA 60 (A) at 63F; S v Hlolloane I 1980 (3) SA 824 (A); S v Felix 1980 (4) SA 604 (A) at 611E; S v Maxaba 1981 (1) SA 1148 (A) at 1156H; S v Sauls 1981 (3) SA 172 (A) at 179G - 180H; S v Lombaard 1981 (3) SA 198 (A) at 199E; S v Witbooi 1982 (1) SA 30 (A) at 33H, 34A; S v Khoza 1982 (3) SA 1019 (A) at 1032 - 5, 1044H, 1051D, 1052F, 1054H; S v Daniëls 1983 (3) SA 275 (A) at 325D, 331B; S v Leepile and Others (1) 1986 (2) SA 333 (W); Wheeler v Le J Marchant (1881) 17 CD

1988 (1) SA p870

675 at 681; Marks v Beyfus (1890) 25 QBD 494 at 498; R v Snider (1953) 2 DLR 9; Ex parte Brown: Re Tunstall and Another 1966 - 67 vol 67 State Report NSW 1; Butler v Board of Trade [1970] 3 All ER 593 at 1073b - c ; D v NSPCC [1977] 1 All ER 589 (HL) at 601d, 602d ; Waugh v British Railways Board [1979] 2 All ER 1169 (HL); Sankey v Whitlam and Others (1979) 53 B ALJR 11 at 21 - 4, 28; Baker v Campbell (1984) 49 ALR 385 at 395; R v Richardson 3 F & F 693 (176 ER 318); R v Barton [1972] 2 All ER 1192; Wigmore on Evidence vol 8 paras 2291, 2292; Glanville Williams Textbook of Criminal Law (1978) at 338; S v Smith 1984 (1) SA 583 (A) at 596D; R v Mgxwiti 1954 (1) SA 370 (A) at 374A; S v Shenker 1976 (3) SA 57 (A) at 60A; R v Melozani 1952 (3) SA 639 (A) at 643F; R v Jantjies 1958 (2) SA 273 (A) C at 275A; S v Williams en 'n Ander 1970 (2) SA 654 (A) at 655G; S v Sikosana 1980 (4) SA 559 (A) at 563A; S v E 1965 (4) SA 526 (A) at 530D; S v Siwesa 1957 (2) SA 223 (A) at 225H; S v Mofokeng 1962 (3) SA 551 (A) at 559G; S v Nkwenja en 'n Ander 1985 (2) SA 560 (A) at 567B; S v Tsotsobe and Others (unreported judgment of Appellate Division, case D No 169/82); Criminal Procedure Act 51 of 1977 ss 319(1), 322(1).

E Jordaan for the State referred to the following authorities: Hiemstra Suid-Afrikaanse Strafproses 3rd ed at 725 in fine ; Schmidt Bewysreg 2nd ed at 542, 545; Hoffmann and Zeffertt South African Law of Evidence 3rd ed at 204; Van Niekerk, Van der Merwe and Van Wyk E Privilegies in die Bewysregat 96 - 7; Cross on Evidence 6th ed at 399 - 400; Phipson on Evidence 13th ed para 15-13; (1973) New Law Journal vol 123 at 517; May 1980 THRHR ; May 1980 SALJ ; Hunt SA Criminal Law and Procedure 2nd ed vol II at 77, 78; Snyman Strafreg at 49; R v Jackelson 1920 AD 486; R v Mgxwiti 1954 (1) SA 370 (A); R v Cele and Others 1958 (1) SA 144 (N) F at 153B - C; R v Jantjies 1958 (2) SA 273 (A) at 275A; R v H en 'n Ander 1959 (3) SA 648 (T); R v Chanjere 1960 (1) SA 473 (FC); R v Dladla and Others 1962 (1) SA 307 (A); S v Williams en 'n Ander 1970 (2) SA 654 (A) at 655H; S v Cooper en Andere 1976 (2) SA 875 (T) at 878; S v Mushimba en Andere 1977 (2) SA 829 (A) at 841A - C; S v Williams en 'n Ander 1980 (1) SA 60 (A) at 63; S v Sikosana 1980 (4) SA 559 (A) at G 563A - B; S v Maxaba en Andere 1981 (1) SA 1148 (A) at 1156 in fine - 1157; S v Khoza 1982 (3) SA 1019 (A) at 1030C - E, 1035B - E, 1044B - E, 1054 - 5; S v Daniëls en 'n Ander 1983 (3) SA 275 (A) at 325D; S v Dhlamini and Others 1984 (3) SA 360 (N) at 365H; Euroshipping Corporation of Monrovia v Minister of Agricultural Economics and H Marketing and Others 1979 (1) SA 637 (C) at 643H - 644C; Burnell v British Transport Commission [1955] 3 All ER 822 (CA); R v Barton [1972] 2 All ER 1192; R v Chisvo and Others 1968 (3) SA 353 (RA) at 354G - H.

Cur adv vult.

Postea (December 1). I

Judgment

Botha JA:

On 3 September 1984 Mr Kuzwayo Jacob Dlamini, the deputy mayor of the town council of Lekoa, was murdered outside his house in Sharpeville, near Vereeniging. A mob of people numbering about 100 had attacked his house, first by pelting it with stones, thus breaking the J windows, and then by hurling petrol bombs through the windows, thus

1988 (1) SA p871

Botha JA

A setting the house alight. Mr Dlamini's car was removed from the garage, pushed into the street, turned on its side, and set on fire. As his house was burning down Mr Dlamini fled from it and ran towards a neighbouring house. Before he could reach it he was caught by some members of the mob, who disarmed him of a pistol that he had with him. He...