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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

 

(1)        NOT REPORTABLE

(2)        NOT OF INTEREST TO OTHER JUDGES

(3)        REVISED

Case number: A 829/2016

Date: 7 May 2018

Delivered: 18 May 2018

 

In the matter between:

 

PALAMENT ANDRIES DIALE                                                                              1^st Appellant

WANDERBOY JAJA TAOANE                                                                              2^nd Appellant

 

And

 

THE STATE                                                                                                              Respondent

JUDGMENT

SWANEPOEL, AJ:

1.          Appellants were charged in the Vereeniging Regional Court with the following charges:

1.1       Count 1: Murder: In that on or about 15 June 2014 they unlawfully and intentionally killed Donoon Peter Levi.

1.2       Count 2: robbery with aggravating circumstances: In that on or about 15 June 2014 they unlawfully and intentionally assaulted Denoon Peter Levi and with force and violence did take 3 cellphones and cash, which was the property or in the lawful possession of Donoon Peter Levi and that they used a dangerous weapon whilst doing so, to wit a knife.

 

2.          Both appellants pleaded not guilty. Both were convicted after evidence was led, on both counts. They were both sentenced to 15 years' imprisonment on the first count of murder, and to 8 years' imprisonment on the second count of robbery with aggravating circumstances. This appeal is against conviction only.

 

THE PLEA PROCEEDINGS

3.          First appellant proffered the plea explanation that on 15 June 2014 both he and second appellant met Donoon Peter Levi ("the deceased") in the street. They wanted to rob him, and after they searched him, first appellant took his cellphone. He then wanted to leave, but second appellant wanted money from the deceased. First appellant tried to stop him, but second appellant stabbed the deceased.

4.         Second appellant's plea explanation was that first appellant attacked the deceased, and second appellant tried to prevent him from attacking the deceased by kicking first appellant.

5.         It was common cause that the deceased died on 15 June 2014 as a result of a penetrating incised stab wound of the chest. The deceased suffered a number of stab wounds but only one wound penetrated the chest. It is that wound that caused his death.

 

THE EVIDENCE

6.          On behalf of the State, one Buseletso Maruane testified that he went to the tavern with the deceased sometime after 18h00. He was sitting drinking with the deceased when second appellant arrived. Maruane saw him going outside with the deceased. Maruane followed them and was told that second appellant was escorting the deceased home. Maruane went along with them, and at a shop about 200m from the tavern the deceased sat down and said he did not want to go home. Second Appellant threatened to kick the deceased unless he went to sleep.

7.          First appellant arrived on the scene and second appellant told Maruane to go home. He left and when he got to the back of the shack he saw the deceased running a distance away. The area was lit by an Apollo light. Both appellants were chasing the deceased, and Maruane saw the deceased fall to the ground. Both appellants kicked him. There were no other persons present. Maruane then went home and did not see anything further.

8.          Maruane was confronted with his statement we made to the police in which he had said that first appellant had a knife and that he stabbed the deceased several times whilst the deceased was lying on the ground. Maruane conceded that he did not have a good recollection of the events, principally because on his own version he was very drunk on the night in question.

9.          On behalf of first appellant it was put to Maruane that he, the first appellant, did not chase the deceased. Maruane veered from first stating that he did not know if that were so, to saying that he did see both appellants chasing the deceased. It was also put to Maruane that first appellant would deny kicking the deceased. Maruane initially agreed with that proposition, but then reiterated that first appellant had kicked the deceased. What is clear is that the incident that he describes happened some 200 to 250 meters away from him. He agreed that there was a lot that he did not remember of the incident. Maruane could not explain why he had deviated from his statement in which he stated that second appellant had kicked the deceased.

10.        Under cross examination on behalf of second appellant Maruane said he had not seen the first appellant stabbing the deceased, although in his statement to the police he had said that he did see the stabbing. His averment in the statement that only second appellant had kicked the deceased was also wrong.

11.        By agreement, the State handed in the record of a pointing out which first appellant made to the police on 9 October 2014. The scene where the deceased was found was pointed out, and the following statement was recorded:

"... pointed where the deceased was stabbed and fell, his name unknown. Suspect know him facially from town. Deceased stabbed by Wanda, who is also known to me as Yaya. After he stabbed the deceased he searched the deceased. When he came close to me he had a cell phone, either a Nokia or a Samsung. Wanda wanted to give the set to me, I refused. He also had cash of two ten rand notes and one five rand coin. Wanda had a three star Okapi knife which he used to stab the deceased. I only saw one blow, the deceased fell."

 

12.         That completed the State case.

13.        First appellant testified that on the night in question he was walking along the road when he encountered second appellant. He was with another person. First appellant asked him where he was going to which he replied that he was going home. Second appellant asked him to wait. He saw second appellant go up to a person in the street and he could see that second appellant was robbing that person. First appellant screamed at second appellant to leave the person alone, but was told to keep quiet. First appellant didn't want to search this unknown person, and second appellant threatened to hit him if he did not do so. First appellant resisted but was slapped with the open hand. At that stage the deceased was lying down, and second appellant was holding a knife, which he put into his pocket.

14.        First appellant testified that he was scared of second appellant. First appellant denied killing or assaulting the deceased. He also denied searching or robbing the deceased. He stated that he was forced to take the deceased's cell phones.

15.        In cross-examination he was asked why, if he were scared of second appellant, did he then approach him to reprimand him. He could not provide a sensible explanation. He was also confronted with his plea explanation, and asked why it had been recorded that he and second appellant wanted to rob the deceased and that he (first appellant) had taken the deceased's cell phone. He denied taking the cell phone. He could not explain why his evidence deviated from his plea explanation.

16.        It was put to first appellant that second appellant would say that he was at the tuck shop and decided to go and fetch a jersey. He heard a scream and upon his return he found first appellant hitting the deceased with fists. Second appellant tried to stop him by kicking him. When first appellant got off the deceased, the latter ran away and was again chased by first appellant. First appellant denied this version.

17.        In cross-examination by the State, first appellant admitted seeing second appellant putting the knife away. He admitted that his version that they wanted to rob the deceased was true, but he denied stabbing the deceased. It was put to first appellant that he and second appellant had acted together to rob the deceased. He admitted that in robbing the deceased they made a mistake, but he accused second appellant of being the one who was saying what must be done. First appellant was asked if he had chased the deceased and he admitted walking fast after the deceased.

18.        Second appellant says he was playing pool at the tavern when he saw Maruane, the deceased, and deceased's wife sitting there. An incident happened between deceased and his wife. Maruane came to him and asked him to take the deceased home. He agreed to escort the deceased. At a point the deceased refused to go further. Second appellant decided to go back to the tavern where he played more pool. The deceased returned to the tavern. He was injured on his head. He left again. Second appellant then left the tavern accompanied by one Buseletso. As they exited the gate they· met first appellant who was holding a bottle of alcohol. They agreed to go to JS, apparently another tavern. At some stage (exactly when is unclear) they met up with Maruane. When they approached the passage leading to second appellant's house, Buseletso said that he was going to buy cigarettes. It must be said that this version of events is not clear at all.

19.        When Buseletso went to buy cigarettes, second appellant went to his house to fetch a jersey. As he arrived there he heard a scream, and upon arriving where he had left the others, he found first appellant hitting the deceased. He wanted to avoid the situation but nevertheless he went to try and stop first appellant from continuing the assault by kicking first appellant on the leg. He also reprimanded first appellant. First appellant apparently had some dispute with deceased, but second appellant managed to convince him that he had the wrong person.

20.        First appellant stopped the assault, but when second appellant turned around again, he was surprised to see first appellant chasing deceased. He could see first appellant holding something, but he didn't pay much attention. He wanted to leave the scene with Maruane, but he refused and said he would meet up with him at JS.

21.       In cross-examination second appellant admitted seeing an Okapi knife in first appellant's possession. He said that it was this knife that was used to stab the deceased. He alleged that he had only seen the knife the following day when he went to see first appellant. He denies ever giving first appellant a cell phone.

22.       I must mention that the above version of the second appellant was never put to the State witness, Maruane.

23.       The evidence of Maruane must be assessed with caution for two reasons. Firstly, he is a single witness, and although section 208 of the Criminal Procedure Act, Act 51 of 1977 provides that one can convict on the evidence of a single witness, his evidence must be approached with caution. (See: State v Mokoena 1932 OPD 79 at 80) In my view his evidence should only be accepted where it is corroborated by other acceptable evidence.

24.       Secondly, on his own version Maruane was very intoxicated on the day in question, and his memory was impaired. He testified more than a year after the incident. His evidence contradicted his statement to the police in material respects. However, it cannot be said that his evidence was utterly untrustworthy, and it might be that he was trying not to implicate the appellants more than he had to.

25.        The general rule relating to the evidence of accomplices was enunciated in R v Ncanana 1948 (4) SA 399 (AD) at 405, which is that the evidence of an accomplice must be viewed with caution. An accomplice might not only have a motive to implicate the accused, and possibly in so-doing exonerate himself, but might also, because 9f his inside information relating to the crime, be able to convince the court of the guilt of his co-accused. (See also: S v Dladla 1980 (1) SA 526 (AD))

26.       Generally, an extra-curial statement is only admissible against the person who made it. Where the appellants however acted with common purpose, the evidence of the acts and the statements of each is admissible against both. See: R v Victor 1965 (1) SA 249 (S.R. A.D.)

27.      The plea explanation by first appellant, to the effect that he and second appellant had planned to rob the deceased, is not evidence by first appellant, but is still probative material, and it goes " into the scale, to be weighed with everything else there." See: S v Mjoli 1980 (3) SA 172 (D) at 179 H.

28.       The evidence of Maruane, that second appellant accompanied him, (Maruane), and the deceased from the tavern is common cause. The undisputed evidence was that the deceased had money on him, and that he had been buying drinks for other people. Maruane's evidence, that on their way home they encountered the first appellant, is corroborated by first appellant.

29.      First appellant also corroborates Maruane's version that the deceased fell down on the ground, and that second appellant robbed him. First appellant testified that he himself was forced by appellant to search the deceased. His version is that second appellant hit him with an open hand because he would not participate in the robbery. He also testified that he saw second appellant holding a knife.

30.        First appellant's version, that he was present but that he did not participate in the robbery, is contradicted by Maruane, is unlikely and is in contradiction of his plea explanation that they had planned to rob the deceased together. .

31.        Second appellant's version, that he only arrived on the scene after hearing a scream, and that he then saw first appellant hitting the deceased is equally unlikely. Second appellant testified that he was reluctant to go to the scene because his sister doesn't like such things. The question is then why did he go there in the first place? Having decided to assist the deceased by kicking first appellant, why did he then simply leave when his attempt to placate the first appellant did not succeed?

32.       First appellant places himself and second appellant squarely on the scene, thereby corroborating Maruane's evidence. Both appellants testify that an Okapi knife was used on the scene. First appellant alleged that he had seen second appellant holding a knife as he was attacking the deceased. Second appellant closed the knife and put it in his pocket. Second appellant testified that first appellant showed him a knife the day after the incident and that he explained that he had used that knife to attack the deceased.

33.        Finally, first appellant testified that he did in fact obtain a Samsung cellular telephone from second appellant, but that was three or four days after the incident. He could not explain his plea explanation that he had taken the deceased's cell phone.

34.        Both appellants place themselves on the scene. Both also have tried to distance themselves as much as possible from the murder. First appellant corroborates Maruane's evidence that second appellant also attacked the deceased. First appellant's attempt to distance himself from the attack in evidence, whilst he had given a plea explanation that placed him squarely in the attack, rings hollow.

35.      First appellant made an extra-curial statement to the police to the effect that second appellant actually stabbed the deceased. On the basis of S v Victor (supra), that evidence must be weighed together with the rest of the evidence.

36.        In argument second appellant's counsel seemed to concede that the robbery had been proved against second appellant, but it was contended that it had not been proved that second appellant associated himself with the murder.

37.        In Burchell's Principles of Criminal Law (4^th Edition) at page 467, the principle of common purpose is defined as follows:

 

"Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific conduct committed by one of their number which falls within their common design. Liability arises from their 'common purpose' to commit the crime."

 

38.       The above definition was accepted by the Constitutional Court in S v Thebus and another [2003] ZACC 12; 2003 (6) SA 505 (CC).

39.        In S v Mgedezi 1989 (1) SA 687 (A) the requirements for a finding that the appellants acted with common purpose was established:

39.1   The party must be present at the scene;

39.2   He must be aware of the assault;

39.3   He must have the intention to make common cause with the person perpetrating the offence;

39.4   He must manifest his sharing of a common purpose with the perpetrators of the assault by performing some act of association with the conduct of the others;

39.5   He must have the requisite mens rea, in this instance he must have intended for the deceased to be killed, alternatively have foreseen the possibility that the deceased may die, and have performed the act of association reckless of that foresight.

 

40        The court must determine in respect of each appellant, the location, timing, sequence, duration, frequency and nature of the conduct of the appellant to establish whether it constitutes active association. (See: Thebus supra at 531 (E))

41         There is, in my view evidence beyond a reasonable doubt that appellants had decided to rob the deceased, and that they had carried out that common purpose together. Both were actively involved, and both continued the attack until their objective was reached.

42        It is not, in my view, of importance to establish who wielded the knife. Both appellants foresaw that violence would be used to subdue the deceased. It was imminently foreseeable that during such an attack, the victim might be killed. Both appellants participated in the attack, reckless of whether the deceased was killed or not.

43         In my view the State has proved that both appellants formed a common cause to subdue the deceased by violence, and to rob him of his belongings. They both associated themselves directly with the attack, and foresaw the possibility that the attack may result in the death of the deceased.

44         In the result I make the following order:

The appeal against conviction is dismissed.

 

 

 

Swanepoel AJ

Acting Judge of the High Court,

Gauteng Division

 

 

I agree:

 

 

 

TEFFO J

Judge of the High Court

Gauteng Division

DATE OF HEARING:                               7 MAY 2018

DATE OF JUDGMENT:                            18 MAY 2018

ATTORNEY FOR APPELLANT:              LEGAL AID

ADVOCATE FOR APPELLANT:             ADV M MOLOI

ATTORNEY FOR RESPONDENT:          STATE ATTORNEY

ADVOCATE FOR RESPONDENT:          ADV ROSSOUW

 

 

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