| 1st |
Appellant |
| 2nd |
Appellant |
| 3rd |
Appellant |
| 4 th |
Appellant |
| 5 th |
Appellant |
| 6 th |
Appellant |
| 7 th |
Appellant |
| 8 th |
Appellant |
| 9 th |
Appellant |
| 10th |
Appellant |
and
THE STATE
Respondent
MR. ATTORNEY A. MODIMO FOR THE APPELLANTS MR. ATTORNEY K.N. SEBOTHO FOR THE STATE^
JUDGMENT
CORAM: SCHREINER J.A LORD WYLIE J.A LORD COWIE J.A
SCHREINER J.A.
The Appellants were charged together with another man against whom the charge was withdrawn with murder of an elderly
2 man MALETISA PINARE on the 21st March 1993 at Molepolole. They
were all found not guilty of murder but guilty of an offence in
terms of Section 227 of the Penal Code. This section covers a
number of possible offences and specifies particular forms of
intention including an "intent to maim, disfigure or disable any
person or to do some grievous harm to any person..." The form
of the acts which constitute the offence include unlawfully
wounding or doing "any grievous harm to any person by any means
whatever." "Harm" is defined in Section 2 as "any bodily hurt,
disease or disorder whether permanent or temporary" and "grievous
harm" means, unless the context otherwise requires, "any harm
which amounts to a maim or dangerous harm or seriously or
permanently injures health or which is likely to injure health
or which extends to permanent disfigurement or to any permanent
or serious injury to any external or internal organ, membrane or
sense."
One Anthony Mosweu was the sixth witness to give evidence
at the trial of the Appellants. He spoke of a commotion near his
house on the night of the 20th/21st March 1993 when someone was
being beaten up by certain persons including the First and Second
Appellants. He did not intervene and went to bed without going
outside to investigate what was going on. On the following
morning he found the deceased in a bad condition lying near to
3 where he had seen someone being assaulted the night before.
After trying to enlist the help of the First, Second and Fifth
Appellants he reported the presence of the deceased and his
condition to the police who came and took a statement from the
deceased and then took him to hospital where he died.
A post mortem report on the body was drawn up by Dr. Maramreddy whose examination took place on the 24th March 1993. The doctor also gave viva voce evidence. He found two bruises on the skull with subdural haemorrhage. In the chest area the sternum was broken with a haemorrhage immediately in front of the fracture and covering the heart area. There were eleven broken ribs on the right side with consequent damage to the lung underneath the fractures. The doctor was of the opinion that an external injury to the back of the chest may have been connected with the broken ribs and damaged lung. The liver was damaged causing blood to collect in the abdominal cavity. The witness expressed the view that any one of these injuries could have caused death. He identified the external injuries which were associated with the potentially fatal internal injuries. I will call these injuries the critical injuries.
Apart from the critical injuries the upper part of the body of the deceased showed a very large number of abrasions - about thirty in all. The situation, cause and seriousness of these
4 abrasions was not debated with the doctor presumably because the
State was concerned at the stage when he gave his evidence with
the murder charge and thus with those injuries which could have
caused death. It is therefore not possible to make any finding
on the matter of whether or not any of the abrasions constituted
"grievous harm" within the meaning of those words in section 2
of the Penal Code. They do however constitute "harm" as defined
in that section so that any person responsible for inflicting
such harm could possibly be found guilty of committing an assault
occasioning actual bodily harm in terms of Section 247.
I proceed to give a short summary of the evidence adduced by the State concerning the circumstances which gave rise to inflicting the injuries upon the deceased. The deceased was not a native of the area where he met his death. He lived with a Ms. Mmamiki Konti. On the 20th March 1993 four men arrived at the house of Ms. Konti and took him away against his will saying that they had been sent by their parents to do so. When the deceased left in the company of the four men he said to the person at whose house he was staying Mr Manganaakatse; "... If I am dead tomorrow you should know that it is them [that is the persons taking him away] that killed me."
The story is then taken up by the fifth witness for the State, Mrs. Dipotsonyana Letoboko. She was on the way to a vigil
5 and at some point which is not clearly defined she came upon the
deceased "being beaten by people." She had heard noise and
people shouting and saying: "We are beating a thief." She
identified in Court the persons in the dock as having been there
but stated that the Eleventh Accused, (the 10th Appellant), was
not there. She stated that all the others took an active part
in the beating which was carried out using a stick, a sjambok and
a mokgwapha leaf. The last mentioned is the leaf of a large aloe
plant which grows in the area. From the photograph shown to the
Court it would seem to be sufficiently large to inflict some
injury upon a person who was hit with it. Whether it could or
did, inflict "grievous harm" or "harm" as defined in the Code has
not been established. Mrs. Letoboko left the place of the
assault before it was over.
The scene now shifts to the house of the sixth witness, Mr.
Anthony Mosweu. He arrived at his home at Molepolole between 8
and 9 p.m. on the evening of the 20th March and heard the noise
of people. He was inside his yard and tried to ascertain the
cause of the noise without leaving it. He said that he saw some
people whom he knew in the headlights of a car owned by one
Nchief whom he saw together with the First and Second Appellants.
He says that the First and Second Appellants were assaulting a
person whom he did not know. They were using their hands and
6
kicking him. There were between ten and fifteen other people
present. The following morning at about 5 a.m. he heard his dogs barking and went outside with a torch. He saw a man lying next to a dust bin about thirty to thirty-five metres from where he had
seen someone being assaulted the night before. The man was bleeding from the nose and the front of his trousers and his clothes were covered in blood. Mr. Mosweu did not see any wound on the injured man. He spoke to him and tried to find out what had happened and who was responsible for his condition. He then went to see both the First and Second Appellants presumably because he believed that the person whom he had seen being assaulted by the two Appellants on the previous evening was the person whom he found on the following morning. They were not helpful. He eventually reported the presence of the deceased to the police who came and, after taking a statement from him, took him to hospital.
Those Appellants who elected to give evidence i.e. Appellant 2,3 and 5 gave a different version of the events in which the Appellants were cast in the role of defenders of the deceased against attack by others and, in particular, one Mothibi who they allege, assaulted the deceased by kicking him and knocking him with a bicycle which he Mothibi, had been riding.
On the version of the Appellants who gave evidence Mothibi
7 would probably have been responsible for inflicting the critical
injuries though they stated that other members of the public also
assaulted the deceased. The Appellants, it was said, either did
not take any part in the fracas or attempted to rescue the
deceased from the anger of the persons who were alleging that the
deceased was a thief.
In a judgment which is both comprehensive and carefully considered Mr. Justice Nganunu acquitted the Appellants on the charge of murder but convicted them of the offence of unlawfully causing grievous harm to the deceased and sentenced them to various terms of imprisonment some part of which was usually suspended and to be operative from differing dates. At the time of the hearing of this Appeal all but two had been discharged from gaol. However, Mr. Modimo who appeared before us to argue the appeal acted for all the convicted accused.
Not unnaturally the main part of the judgment deals with the murder charge. His Lordship discussed the question of whether the State had established from the evidence of Mrs Letoboko and Mr. Mosweu that any of the Appellants had personally inflicted one of the critical injuries and came to the conclusion that the evidence did not establish this. He accepted the evidence of both Mrs Letoboko and Mr. Mosweu but was faced with the problem of whether any of the Appellants could be connected with at least
8
one of the critical injuries. On these issues Mrs Letoboko and
Mr. Mosweu were, it would seem, unable to assist the Court. The fracas had taken place at night and though at the first incident Mrs Letoboko said that the Fifth Appellant had a torch and Mr. Mosweu said that at the scene of the second incident there was a motor car with its lights on, it is not surprising that neither of the two witnesses could say what, if any, harm was caused by the activities of a particular Appellant. For example, the use of the aloe leaf may well not in all the circumstances of its use have caused any harm at all. Though the learned Judge did not accept the evidence tendered on behalf of the Appellants, there was one aspect of it which he found might reasonably be true. That is the presence of Mr. Mothibi and his involvement in the affair. This finding does not necessarily mean that the reliability of Mrs Letoboko became suspect because she says that she arrived after the beating had started and left the scene before it had ended. The hesitation of the Court to convict on the charge of murder on the ground of lack of direct evidence connecting any of the Appellants with inflicting of any of the critical injuries would therefore appear to be correct.
In dealing with the evidence of Mrs Letoboko the learned Judge made the point that it was straightforward and she knew these people beforehand as neighbours. He continues:
9
"She was extremely detailed as to what happened, what they said as they repeatedly assaulted the deceased. Some of the exhibits she identified were admitted in this court
There was no reason why she should lie against any of
the accused persons .... Bearing in mind that all 4 took part in bringing out the accused late at night and clearly regarded him as a thief, it is unbelievable that they did not at least participate with others to assault him even if they were not the ones that initiated the assault."
I consider that the learned Judge overstated the position regarding the degree of detail which Mrs Letoboko was able to give concerning
the assault which she saw. This does not mean that she was not honest in the evidence which she gave, but it would appear likely that, understandably, she could not give a detailed picture of the events. For example she did not connect any of the Appellants with the use of any particular weapon. She did not state the order in which the three weapons were used and the persons who used them and the injuries, if any, which resulted from the use of each weapon by each of the Appellants. Furthermore the learned Judge's finding that because the first four Appellants took the deceased at night from where he was living rendered it unbelievable that they would not have participated in the assault with others is not in my view a correct conclusion. The four persons who were responsible for taking the deceased away were intent, it must be assumed, in taking him to some place which may or may not have been the place where a beast had been killed. Why they should take part in an
10
attack by others upon the deceased while they were proceeding
with him to their destination is to me unclear. If they had
wished to assault him they could have done so immediately and
before taking him some distance from the house he was living in.
The fact that they took him in custody and at night away from his
place of residence would, in my view, tend to show that they had
no intention of doing him bodily harm with weapons which, apart
from the sjambok, seem to have been haphazardly acquired near the
scene of the assault.
Considerations of the problem arising from positive
identification of persons involved in a group assault leads in
the present case in my view to the conclusion that any conviction
based upon the evidence of Mrs Letoboko and Mr. Mosweu would be
dangerous. As VAN DER HEEVER JA said in R V MASEMANG 1950 (2)
SA 488 (A) AT 493:
"The positive assurance with which an honest witness will sometimes swear to the identity of an accused person is in itself no guarantee of the correctness of that evidence."
The above passage was quoted in S. KHUMALO EN ANDERE 1991 (4) SA 310 (A) AT 328 C together with the admonition that a witness's honesty and own conviction must not be allowed to confuse the separate investigation
as to the reliability of the identification ( See too S V MLATI 1984 (4) SA 629 (A)).
It follows from the above that though the assessment of the
11
State witnesses' credibility by the trial Court must in the present case be accepted by this Court, this does not mean that the identification of the Appellants as the persons who inflicted harm upon the deceased must be accepted as having been established beyond reasonable doubt. Both incidents occurred at night in the presence of a number of other persons and in circumstances of considerable excitement and emotion. It seems likely that others, and particularly Mothibi, were incensed by the allegations made against the deceased.
Though the question of whether it had been proved that any of the Appellants had inflicted any of the critical injuries on the deceased is not the same as that which arises in relation to crimes involving assault where all the injuries, critical as well as minor, fall to be considered, the principles to be applied are
the same. In my view, if this is done, the proper verdict on a charge of assault of any kind should be one of not guilty.
In conclusion I should deal shortly with the issue of common purpose which Counsel for the State who, like Counsel for the Appellants, argued with considerable skill and clarity, raised during argument for the first time. The learned Judge dealt with it in relation to the murder charge and rejected it in the ground that though there was prima facie evidence that the Appellants were acting together he was unable conclusively to say that they
12
had a common purpose. The requirements for conviction on the
basis of common purpose are dealt with in S V. MQEPEZI AND OTHERS
1989 (1) SA 687 (A) AT 705 & 706. The case concerned a group
attack at a mine compound where a large number of people were
involved. The charge was murder. Botha J.A. said:
"In the first place, he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of the assault . . . Thirdly, he must have intended to make common cause with those who were actually perpetrators
of the assault by himself performing some act of association with the conduct of the others. Fourthly he must have had the requisite mens rea.• so in respect of the killing of the deceased he must have intended them to be killed or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue."
The same requirements would, suitably adapted, apply to an
allegation of common purpose in relation to an assault.
In a case such as the present where there is no proved prior agreement to commit an offence it is not easy to establish the necessary common intent. In the present case all the State was able to prove was that there was a gathering of people around the deceased who had been taken by certain of the Appellants from where he lived and, it must be assumed, was in their custody when the crowd collected. I do not think that in these circumstances the requirements of MGEDEZI'S case (supra) can be said to be satisfied.
I would therefore allow the appeal in respect of all the
13
Appellants and set aside the convictions and sentences
W.H.R. SCHREINER JUDGE OF APPEAL
I AGREE:
LORD N. WYLIE JUDGE OF APPEAL
I AGREE:
W.I.K. COWIE JUDGE OF APPEAL
DELIVERED IN OPEN COURT THIS 2ND DAY OF FEBRUARY 1996.
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