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384/87 /mb
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
ENOCH MAKHOSONKE MAZIBUKO APPELLANT 1
PHILLIP TLHAPANE APPELLANT 2
BARNEY HAYNES APPELLANT
3
RALPH HAYNES . APPELLANT 4
and
THE STATE
RESPONDENT
CORAM : VAN HEERDEN, NESTADT et KUMLEBEN, JJA
HEARD : 18
MARCH 1988 DELIVERED : 29 March 1988
JUDGMENT/
2. JUDGMENT
KUMLEBEN, JA
The four appellants, to whom I shall refer
as accused nos 1 to 4, stood trial in the Witwaters-
rand Local Division. They were charged with: count
1 - murder; count 2 - robbery with aggravating cir-
cumstances; counts 3 and 4 - unlawful possession of
a firearm and its ammunition; and count 5 - theft.
The indictment alleged
in reference to these charges:
that on 22 February 1985 at or near
Randfontein the
accused intentionally and unlawfully killed the
de-
ceased, Charl Petrus Marais, by fatally injuring him
w'ith a
sub-machine gun; that they unlawfully possessed
this firearm and its
ammunition; that they robbed him
of R14 100,69; and that a Cortina motorcar
was stolen
by/
4
by them in order to carry out this planned robbery. Accused no 1 was initially represented by pro deo counsel (Mr Katzew) but after the close of the State case was unrepresented. Pro deo counsel acted for the others throughout: Mr Liebowitz for
accused no 2 and Mr Robinson for accused nos 3 and 4.
Notwithstanding
their pleas of not guilty, each was convicted on some or all counts. Accused no
1 was found guilty on count 1 of murder
with the ancillary finding that the
degree of intent was dolus directus. However, when the court came to the
consi-der whether there were extenuating circumstances, it, for reasons which
will be discussed
in due course, concluded that this accused had acted dolo
eventuale
and/
4. and that this lesser degree of intent in the circum-
stances amounted to extenuation. On this count,and
on counts 3, 4, and 5, on which he was also convic-
ted, prison sentences were imposed. On count 2 this
accused was found guilty as charged and in the exer-
cise of his discretion the learned Judge, Mc Creath J,
imposed the death sentence. The other three accused
were each convicted on counts 1, 2 and 5 as charged but
were found not
guilty on counts 3 and 4. As regards
count 1, the murder charge, the Court held that the
degree of intent was dolus eventualis and extenuating
circumstances were found to be present. Prison sen-
tences were imposed in respect of each of the counts
on which they were found guilty.
The/
5. The following facts giving rise to these
convictions were common cause or indisputably
proved.
Accused no 3 came to know that a certain Mr Lowe re-
gularly sent
someone by car on Friday afternoons with
money to be paid to employees. It
was conveyed from
his business premises in Randfontein to the Cook
Re-
duction.Works in the district. The four accused and
one Goosen decided
to intercept the car and rob its
driver. The five of them discussed in detail
how
this was to be done. Accused no 4 obtained a sub-
machine gun to be
used in the robbery. On Friday
22 February 1985 it took place. Goosen stole a
Cor-
tina motorcar. He drove it to the business premises
of Mr Lowe.
Accused nos 1 and 2 joined him and sat
in the/
6. in the car. Accused nos 3 and 4 were in the vicinity
to see that things went according to plan. In due
course the deceased left in a Mercedes Benz motorcar.
He was followed by
Goosen driving the Cortina with
accused nos 1 and 2 still in it. At a point
shortly
before the Mercedes Benz reached an intersection the
Cortina
overtook it and, when it stopped at the in-
tersection, blocked its passage.
Accused nos 1 and
2 alighted from the Cortina. No 2 accused struck the
deceased on the jaw
with his fist. Accused no 1 shot
the deceased with the sub-machine gun as he
sat slumped
in the driver's seat as a result of the blow he had
received.
(Accused no 1 initially denied but later
admitted that he had shot the
deceased.) The post-
mortem/
7. mortem examination revealed that one bullet had
entered the right shoulder of the deceased and pene-
trated the skull
where it lodged. The course of the
other was through his chest, the bullet
being found
lodged in the arm rest between the two front seats.
Shortly
before or at the time the shots were fired,
the Mercedes Benz moved forward,
collided with the
left hand side of the Cortina and came to rest on
the
far side of the intersection. Accused no 2 took
an attaché case,
containing the money, from the rear
seat of the car. Goosen drove the Cortina
to a sëclu-
ded spot. The money was removed from the
attaché
case before it and the car were abandoned. Later
Goosen and
the four accused met at the house of
Goosen's/
8.
Goosen's mother and most of the money was divided
amongst them.
Goosen was the key witness for the State. He recounted in
detail the events, which I have brief-ly summarised, and explained the role
played by each accused. He in fact featured as an accused at the trial before a
separation of trials was ordered. At the time he
testified he had been convicted
on counts 1, 2 and 5 for which the death sentence, twelve years' imprison-ment
and five years' imprisonment
respectively were imposed (The facts and decision
in his appeal, which was heard immediately after this one, appear from the
judgment
of my Brother van Heerden - S v Goosen.(Appeal 278/87))
He said that a number of discussions took place on how the robbery was to be
carried out and the part each one was to play. Nothing
was left to
9. the
independent judgment of a participant. It was
explicitly agreed that the
firearm was only to be
used to intimidate the driver and that it was
not
to be fired. They confidently expected that the blow
to be delivered
by accused no 2, who was apparently
a man of formidable physique, would
immobilize the
driver. During the discussions no 3 accused had
told them
that it was the policy of the company to
instruct its couriers hot to offer
resistance if way-
laid and attacked. (Mr Lowe in his evidence
confirmed
this.) They therefore expected little or no resistan-
ce. That
afternoon as they travelled in the car, at
a distance of about 500 metres
from the intersection,
accused no 1 took the sub-machine gun out of' a
haver-
sack./
10. sack. He was seated next to the witness, who was
driving. He
instructed accused no 1 to steer
whilst he (Goosen) took the sub-machine gun
from
him, removed the magazine and operated the breech
mechanism two or
three times to ensure that there
was no cartridge in it. Had there been, it
would
have been ejected. He said he did this to make sure
that the driver
would not be injured or killed by
the firearm during the robbery. He handed
the sub-
machine gun back to accused no 1 and placed the maga-
zine on the lap of no 1 accused. When the car had
stopped in the way of
the Mercedes Benz, the two
passengers alighted from the Cortina, accused no
1
armed with the sub-machine gun. Accused no 2, as
planned,/
11.
planned, struck the deceased on the jaw with his fist. The witness noticed that he seemed dazed; his head was resting on his shoulder. He next saw accused no 1 pointing the firearm at the driver and moving to-wards him as accused no 2 retreated. He heard what he took to be one shot being fired by accused no 1. (If Goosen's evidence on the detachment of the magazine is accepted, accused no 1 must have re-placed it and cocked the sub-machine gun.) Accu-sed no 2 reacted to this by heading back to the Cortina. Accused no 1 shouted at him telling him to take the money from the back seat. This he did. The witness said that the Mercedes Benz was stationary when the "shot" was fired but
he was/
12. he was not all that certain about the precise sequen-
ce
of events. During cross-examination, when asked
whether the forward movement
of the Mercedes Benz
preceded the shot or shots, he said he did not think
so. ("Nee, ek glo nie.")
Mindful of the caution to be exercised in
evaluátihg the evidence of an accomplice,
the Court,
after a close examination of his evidence, concluded
that
Goosen was a reliable witness. His evidence was
accepted: though with a
measure of scepticism as
regards the removal of the magazine. As pointed
out
in the judgment, his evidence was corroborated in
various respects by
other reliable witnesses and was
not effectively controverted by any evidence on the
Part/
13. part of the defence. Accused no 1 gave patently
false
evidence on the part he played in the commission
of the offences. The
evidence of accused no 2 large-
ly corroborated that of Goosen. Where it differed
the Court concluded that
Goosen's evidence was to
be preferred. Accused nos 3 and 4 declined to
give
evidence. In short - and on appeal this was impli-
citly conceded -
for the purposes of this appeal
Goosen's evidence is to be accepted in all
material
respects.
Two special entries were made on the re-
cord in terms of sec 317 of the
Criminal Procedure
Act, 51 of 1977, to which I shall refer as "the
Act".
Although the application for the second entry was
made/
14. made by counsel representing certain of the accused,
once recorded it was taken to have been made on be-
half of all of them.
During the course of the trial the learned Judge
ruled that Mr Liebowitz, representing accused no 2, and Mr
Robinson, for accused nos 3 and 4,were not permitted to cross-examine
accused no 1 on his previous convictions.. The first special entry avers
that,
having regard to the provisions of sec 197 of the Act, this constituted an
irregularity.
The following passage in the cross-exami-
nation of accused no 1 reflects
how this issue arose:
"You were forced to participate in the robbery because of your fear of Accused 2? .... My Lord, I said so.
And/
15.
And as regards robbery itself, you did not go near the sub-machinegun or rather you did not handle the sub-machinegun in
any manner whatsoever? No, My Lord,
I never touched it.
And further that you had never possessed a firearm in your life? -— No, My Lord, I never possessed a firearm.
You had never handled a firearm of any
description in your whole life? No,
I had never held a firearm.
And you were entirely ignorant of fire-arms at all?
COURT: Of the workings of firearms.
MR LIEBOWITZ: Of the workings of a fire-
arm, sorry, My Lord. Even now, My
Lord, I have no knowledge of handlinq
a firearm."
(My underlining)
Mr Liebowitz thereupon informed the Court that he intended cross-examining accused no 1 on his
previous/
16. previous convictions, submitting that the provisions
of sec 197(b) and (d) of the Act entitled him to do
so. This section, omitting sub-paragraphs (a) and
(c),reads as follows:
"An accused who gives evidence at criminal proceedings shall not be asked or required to answer any question tending to show that he has committed or has been convicted of or has been charged with any offence other than the offence with which he is charged, or that he is of bad character, unless-
(b) he gives evidence against any other person charged with the same offence or an offence in respect of the same facts;
(d) the proof that he has committed or has been convicted of such other offence is admissible evi-dence to show that he is guilty of the offence with which he is charged."
Mr Robinson/...
17. Mr Robinson associated himself with the
claim to cross-examine as aforesaid and presented
argument on behalf of the three accused concerned.
Although not explicitly stated at the
start of the argument, it emerged that counsel wished
to put to this
accused certain of his previous con-
victions which would disclose that he
had been convicted
of offences involying a firearm. The learned
Judge,
although he heard the argument on this issue in the
absence of the
assessors, did not allow counsel to
furnish details of the previous
convictions on which
he wished to cross-examine. However, counsel
said
that they would show that no 1 accused had knowledge
of firearms and
had committed offences involving
their/
18. their use. It was submitted, with reference to sub-
paragraph (d) of sec 197, that these previous con-
victions, if admitted
or proved, would, or might,
refute the assertion that no 1 accused had no
ex-
perience in the handling of firearms, and would also
be relevant to
the defence raised by him at that
stage of the trial, namely, that he had
been forced
to take part in the robbery, was not a willing parti-
cipant
and had not fired the shots. Counsel further
submitted that, apart from
considerations of relevancy,
sub-paragraph (b) of sec 197 in any event
authorised
such questioning since this accused had given
evidence
implicating all his co-accused. (As a matter of fact
his previous
convictions, which were admitted when put
to him/
19. to him after conviction,show that of the fifteen,
seven were for robbery involving the use of a
firearm, one was for theft of a pistol and one for
unlawful possession of a firearm.) At the conclu-
sion of argument the application to thus cross-exa-
mine was refused on
the ground, as Mc Creath J put
it,
"that there should be the prima facie evidence in view of the denial of an actual use of a firearm by whatever means that prima facie evidence is ob-tained. But not merely a document which is in itself not proof if it is denied."
This ruling, so it appears, was based on
the fact
that the customary SAP form recording the
previous convictions was not
regarded as prima facie
evidence/
20. evidence of the fact that the accused had actually
handled a firearm. In thus deciding the learned Judge
erred for the simple reason that the only point at
issue was whether the accused could be cross-examined
on his
previous convictions. Were they to be denied
then, and then only, would any
questions arise as to
whether evidence to refute the denial could be
adduced
and, if so, the form it should take. In this regard
it is to be
noted that sec 272 of the Act expressly
provides that a fingerprint record of
previous con-
victions emanating from the South African Criminal
Bureau
shall be prima facie proof of the facts
contained therein. This,
however, is by the way,
since, as I have said, the question of proof formed no
part/
21.
part of the inquiry.
In the judgment on the conviction the
reason given at the time of the
ruling was repeated
and another added, as appears from the following
ex-
tract:
"After hearing argument, I ruled that the majority of the questions sought to be put in regard hereto were irrelevant in that, although Counsel wished to refer to pre-vious convictions in regard to crimes in-volving the use of a firearm, it appeared that others were also involved in the alleged previous offences committed by accused number 1 and that in those cif-cumstances the relevance of the questions as to accused number l's knowledge of firearms in general and the possible con-sequent lack of any reluctance on his part to participate in crimes of this na-ture had not been shown to exist.
It appears that there may have been one offence in which the accused personally was involved in the use of a firearm,but
accused/
22.
accused number 1 indicated that he did not admit any such previous conviction and I was of the view that in the absen-ce of Counsel being in possession of information to substantiate the fact that accused number 1 had previously made use of a firearm, cross-examination of this nature was not permissible unless and until such information was available. It was for this reason that I ruled that at that stage cross-examination of the nature sought to be embarked upon, was not to be permitted."
I mention in passing that there are
two
inaccuracies in this passage. Firstly, as has been
pointed out, nine
of the fifteen previous convictions
involved the unlawful acquisition, use or
possession
of a firearm and, secondly, there was no clear in-
dication
from the accused that he did not, or would
not, admit his previous
convictions. What he said
was/
23.
was "My Lord, I have never used a firearm. My Lord,
I do
not dispute that (sic) my previous convictions, but My Lord, I say that I have
never used in the past a firearm." Be that as
it may, in the judg-ment
irrelevancy is relied upon as an additional reason for not permitting
cross-examination on any of the previous
convictions. This ground is
necessa-rily based on the supposition that the court has a discretion in this
regard. None is conferred
by the language of sec 197(b). If an accused gives the
evi-dence against a co-accused charged with the same offen-ce - as accused
no 1
plainly did in this case - the immunity is forfeited and he is required to
answer any question tending to show that he has been
convicted
of/
24.
of any offence other than the offence with which he is charged. There is a considerable body of autho-rity which supports the view that a court, when cross-examination is authorised by sec 197(b), has no gene-ral or residual discretion to prohibit or restrict such cross-examination on grounds of irrelevancy or at all. (See Rex v Bagas 1952(1) SA 437(A) at 44CE -441A, in which the similarly worded sec 295(b) of Act 31 of 1917 was considered; Hoffmann and Zeffertt' South African Law of Evidence (3rd ed) 71; Hiemstra Suid-Afrikaanse Strafproses (4th ed) 423; and Schmidt Bewysleer (2nd ed) 299. It is, however, in the in-stant case unnecessary to decide this question since, firstly, the initial ruling was not based on the
exercise/....
25.
exercise of any judicial discretion and, secondly,
as I have indicated, nine of the previous convic-
tions are clearly relevant.
For these reasons, having regard to sec
197(b) of the Act, counsel for accused nos 2, 3 and
4 ought to have been allowed to cross-examine accu-
sed no 1 as requested
by them. This counsel for re-
spondent on appeal did not dispute. In the
light
of this conclusion it is unnecessary to decide whet-
her the
provisions of sec 197(d) also thus entitled
them.
The irregularity was not of the order
which per se vitiates a
trial. In the words of the
judgment in The State v Naidoo 1962(4) SA 348(A)
at/
26.
at 353 D - F, it cannot be said that there was "so
gross a
departure from established rules of procedure" that the accused were not
properly tried. It follows that the irregularity
can only influence the
convic-tion of these three accused if it can be shown that they were prejudiced.
(Cf. S v Gaba 1985(4) SA 734(A) at 750 G - H.) The purpose of this
proposed cross-examination, as I have said, was to prove that the accused had
experience of firearms, acted voluntarily and was an untrustworthy witness. The
Court in convicting him, found that he handled, in
fact fired, the sub-machine
gun; that he was a willing participant; and that his evi-dence was false. Thus,
on the face of it, no
prejudice could
have/
27. have risen. After his conviction accused no 1 ad-
mitted
that he had shot the deceased but said that
he had done so accidentally.
Mr Potgieter, who
appeared for accused no 2 on appeal, submitted
that
the proposed cross-examination may have elicited
this admission and
explanation from accused no 1
whilst he was in the witness-box and before he
closed
his case and that this might have significantly affec-
ted the
course of the trial. This appears to me to
be a purely speculative ground of
potential prejudice.
(Cf. S v Gaba (supra)). It is, however, unnecessary
to express a
final view in this regard in the light
of the decision I have reached on the
merits of the
second special entry, which I now turn to consider,
and/
28.
and the resultant order I propose making.
This special
entry is in substance that the presiding Judge failed to have due regard to a
statement made by accused no 1 when addressing
the Court on the merits of his
defence and that he ought to have construed the statement as an application on
no 1 accused's part
to re-open his case, bearing in mind that he was a layman
and at that stage unrepre-sented.
The events giving rise to, and related to,
this special entry are important:
(i) It was initially accused no l's case that he had remained in the car and had not shot the deceased. He gave evidence to that effect. It was convincingly
refuted by the evidence of Goosen and accused no 2.
Accused/
29. Accused no 1 no doubt came to realise this.
(ii) Thus it was that during argument on the merits he said "Ek wil nou die Hof die waarheid vertel"; ek het die man geskiet en ek wil die Hof vertel hoe dit gebeur het." The learned Judge did not react to this statement by explaining to the accused his procedural rights or by asking him whether he wished to apply to reopen his case to explain what he con-tends actually happened. Instead it was decided, in the interests of the accused, not to take into account his admission that he had shot the deceased but no attention was directed at the rest of his statement, which may have presaged an exculpatory explanation.
(iii) In the course of the judgment following upon
argument the court
referred to this statement by
accused no 1 and said:
"In/
30.
"In view of the fact that this was men-
tioned by accused number 1 during the
course of argument, this Court came to
the conclusion that that admission
should not be held against accused num-
ber 1, but that in fairness to him the
case should be adjudicated upon the
evidence before the Court and ignoring
that admission. The Court has accor-
dingly approached the matter along these
lines."
(iv) Having been found guilty on the murder charge
(and on certain others), accused no 1, in the course
of giving evidence in
mitigation of sentence, testi-
fied to the alleged inadvertent discharge of
the
sub-machine gun. He said that he did not know how
to operate it and
that he had no intention of firing
it. When they arrived at Goosen's place
after the
robbery,/
31. robbery, he told them, Goosen and his co-accused,
that he had fired it accidentally. He repeated this
explanation to a police officer at the Brixton Po-
lice Station. He said in evidence that when the
Mercedes Benz came towards
him he thought that he
would be pinned between the two cars and in a
state
of panic he accidentally fired. He added that he
was surprised that
the bullet did not strike accused
no 2. This evidence was not really, or at
least
not effectively, challenged by cross-examination.
Mr de Kock,
who appeared for the State at the trial,
merely asked him whether he had
perhaps fired the
shot to prevent the Mercedes Benz driving off. This
he emphatically denied, reiterating that it was not
his/
32.
his intention to shoot at the car or the deceased.
(v) In the judgment on extenuating circumstances
the Court, after
referring to three decisions of
this Court in which the significance of
dolus even-
tualis as an extenuating factor is. discussed,
said:
"It is against the background of these principles that the Court approaches the issue of extenuating circumstances in the present case and in doing so, the Court bears in mind the findings of fact which were made by the Court in dealing with the facts of the case. In its pre-vious judgment the Court found as a fact that at the time the robberý was planned, it was known to the accused that the de-ceased would not offer resistance if he were to follow the policy of his firm and that that policy was to avoid risk of life as the payroll monies had been insured.
The Court also bears in mind the fact that as part of the planning, it had been
arranged/
33.
arranged that accused number 2 would render the deceased incapable of offering resistance by striking him a blow with the fist.
The Court also bears in mind the war-nings which were given and, more par-ticularly, in the Cortina immediately prior to the robbery, by Goosen and by accused number 2. It is the view of the Court that, if regard is had thereto, then the possibility of re-sultant death of the deceased in conse-guence of the activities of the accused was foreseen as being remote and that, therefore, in the light of the dicta to which I have referred, this is a fac-tor which must be taken into considera-tion in assessing whether extenuating circumstances exist or not.
Mr Liebowitz, on behalf of accused number 2, was good enough to be of assistance to the Court in relation to the position of accused number 1, in view of the fact that the said accused is unrepresented, and in this connection referred the Court to the case of S v SEFUTI 1985 (1) S.A. 9 (AD).
He/
34.
He raised what was said in that case, in dealing with the evidence of accused num-ber 1 in respect of this issue of extenu-ating circumstances to the effect that he did not intend to fire the sub-machine gun and that in consequence of the sudden for-ward jerking movement of the Mercedes Benz, and his 'running away' as a result there-of, the shots went off in error.
The Court has given consideration to this factor, but does not consider that it is an element which detracts from the for-seeability of the consequences of their conduct in respect of any of the accused and that it does not operate to disturb the finding of dolus eventualis."
This judgment
concludes with a finding that in the
case of all four accused extenuating
circumstances
were proved, and that the death of the deceased was
forseen as no more than a remote possibility. (In
the case of accused nos 3 and 4 additional grounds
for/
35.
for extenuation were found to exist.) In the light
of the conclusion in
this judgment that in the case of each accused the degree of intent was dolus
even-tualis, I have difficulty with the statement in the last
paragraph of the passage quoted in so far as it suggests that the finding of
dolus eventualis in re-spect of any of the accused was not
disturbed. In the judgment on the merits, as mentioned at the start of this
judgment, the Court, quite correctly
on the evidence before it at that stage,
found no 1 accused guilty of murder "the requisite intent being that of dolus
directus". Thus the judgment on extenuation does in fact alter this finding
in the case of accused no 1 by substituting
one/
36.
one of dolus eventualis. A further difficulty
the
judgment on extenuation presents is that it is not made at all clear
whether this substitution is based on a finding of fact that an
accidental killing was proved (either on a balance of probabilities or as a
reasonable possibility) or whether, for the purposes
of reconsidering the degree
of intention in the case of accused no 1, it was assumed that he did not
delibe-rately kill the deceased.
In the first two paragraphs of the quoted
passage certain relevant findings of fact are set out. However, from what was
said in the
last paragraph, one cannot infer with any degree of certainty
whether "this factor" was held to have been proved or is merely assumed.
What is
subsequently
said/
37. said in the judgment for leave to appeal strengthens
the
view that there was no such finding of fact. I
refer to the following passage
in that judgment
giving reasons for allowing the second special entry:
"Die rede hoekom ek dit sê, is dat ek van oordeel is dat 'n ander Hof wel tot die slot-som mag kom dat indien die omstandighede waaronder die skote afgegaan het vanuit die vuurwapen wat beskuldigde 1 hanteer het, verder ondersoek word, die Hof moontlik tot 'n ander slotsom sou gekom het, wat betref die aanklag van moord en of dit moord sou wees en of strafbare manslag en/of selfs iets wat 'n novus actus uitgemaak het, en wat tot gevolg sou hê dat die beskuldigdes on-skuldig bevind sou word op daardie beson-dere aanklag."
In the circumstances, and particularly since
this
defence was raised after conviction and not fully
canvassed by
cross-examination, to my mind the correct
approach/
38.
approach is to conclude that no such finding of fact
was made in the Court a quo.
In the light of what accused no 1 said
in argument (as set out in para (ii) above) his rights
ought to have been
explained to him and, had he de-
cided to apply for a re-opening of his case,
as in
all probability he would have, the merits of such
an application
ought have been considered. This
Mr Jordaan, who appeared for the
respondent on appeal,
conceded. It is consequently unnecessary to
consider
whether the evidence given by the accused in extenua-
tion (see
para (iv) above) could also to be taken into
account in deciding whether an application to re-open
ought to have been entertained. (Cf. S v Mavhungu
1981(1)/
39. 1981(1) SA 56(A) at 65F - H; but see S v Theron
1984(2) SA 868 (A) at 879 C - H.)
Whether this irregularity resulted in
prejudice to the four accused depends upon whether the Court a quo was
correct in deciding that, even if the shots were accidentally fired, the accused
were nevertheless guilty of murder.
This question must in the first instance
be examined with reference to the causitive element in the crime of murder.
Viewed factually
the planned robbery and unlawful assault upon the deceased were
conditions sine qua non of the fatal end result. It is, however,
generally acknowledged that causation in that sense is inadequate to determine
legal liability:
It/
40. It would extend liability beyond reasonable and rea-
listic limits. As Jansen JA in S v Daniëls en Ander
1983(3) SA 275 (A) at 331 B - G observes:
"Daar kan weinig twyfel bestaan dat in ons regspraak die bepaling van 'feitelike' oor-saaklike verband op die grondslag van die conditio sine qua non geskied (vgl S v Van As en 'n Ander 1967(4) SA 594(A) op 602D; en wat die onregmatige daad betref, Minis-ter of Police v Skosana 1977 (1) SA 31 (A)). Sonder sodanige verband tussen die dader se handeling en die beweerde, gewraakte gevolg is daar in die algemeen geen aanspreeklik-heid nie. Aan diè ander kant is dit ook dui-delik dat 'n dader nie aanspreeklik gestel be-hoort te word vir alle gevolge waarvan sy handeling 'n conditio sine qua non is nie -sy aanspreeklikheid sou dan te wyd strek en die grense van redelikheid, billikheid en regverdigheid oorskry. Beleidsoorwegings verg dat iewers 'n grens gestel moet word.
Oor hoe die grens bepaal moet word, is daar geen eenstemmigheid onder ons skrywers oor die strafreg nie. 'n Paar voorbeelde sal dit
illustreer./...
41.
illustreer. Volgens De Wet en Swanepoel Strafreg 3de uitg op 63 -64 geskied be-grensing met aanwending van die skuldver-eiste. Snyman Strafreg op 54 - 55 verg dat die handeling adekwaat ten opsigte van die gevolg moet wees (wat blykbaar onder andere daarop kan neerkom dat daar geen novus actus interveniens aanwesig moet wees nie - vgl op 49, 55, 59). F F W van Oosten Oorsaaklikheid by Moord en Strafbare Manslag (proefskrif 1981) meen dat daar naas skuld ook na wederregtelik-heid gekyk moet word (op 584 ev). Hunt South African Criminal Law and Procedure band II ("Common Law Crimes') op 327 vereis benewens voldoening aan die sine qua non-toets ook voldoening aan
'a further test of legal causation which may require X's conduct' (nl die van die dader) 'to be not only a sine qua non but a 'decisive' or 'substantial' or 'proximate' or 'direct' or 'ade-quate' cause of Y's death; or, otherwise put, it may require that no novus actus interveniens inter-rupt the chain of effects which can be traced back to X's act'."
The/
42.
The same view is expressed by P M A Hunt, in a comment
on S v Masilela and Another, 1968(2) SA 558(A) in The
South African Law Journal Vol 85 (1968) 383 at 385:
"But the sine qua non is obviously in-sufficient as a general test of causation, for it spreads the net of liability ab-surdly wide. It serves as a test of 'fac-tual' causation, but in addition a test of 'legal' or 'policy' causation must be for-mulated. X's conduct must be not only a sine qua non of Y's death, but also the 'proximate' or an 'adequate' cause of it. Expressed negatively: not only must X's conduct operate as a sine qua non, but there must be no novus actus interveniens. What is a novus actus interveniens depends very much on the circumstances. See, ge-nerally, J.C. Smith and B. Hogan, Criminal Law (1965), pp. 171-3; R.M. Perkins, Cri-minal Law (1957)), pp. 596 ff.; H.L.A. Hart and A.M. Honoré, Causation in the Law (1959), ch. XII. Even X's own subsequent conduct may rank as a novus actus if it takes the form of an innocent or even neg-
ligent/.....
43.
ligent act which is completely inde-pendent (in conception and execution) of his original conduct...."
Thus, should a proper investigation of the issue
establish as a reasonable possibility that the shots
were fired
accidentally, it may well be, depending
on the proved facts,that the shots
were, adopting
Hunt's phrase, "completely independent (in
concep-
tion and execution) of his original conduct." (Cf.
S v Masilela and Another (supra) at 571D, 573A and
D - E, and
574A.) If the causitive link is not for-
ged in the case of accused no 1 (he
being a person
who, albeit accidentally, fired the shots) there is
a
fortiori scope - again depending on the proved facts
- for a cogent argument that the other accused are not
to be/
44.
to be found guilty of murder on an application of
the
doctrine of common purpose.
There is a further ground on which the conviction
of murder might be challenged, if it is accepted that the killing was
accidental.
Dolus eventualis is attributed to an accused person when-ever
the possibility of death as a consequence of the unlawful act is foreseen (and
is persisted
in), whether or not the precise manner in which death eventuated
was foreseen or contemplated. See R v Lewis, 1958(3) SA 107 (A) at 109H;
S v Msiza 1984 (1) P.H. H116 (AD) and S v Nhlapo and Another
1981(2) SA 744(A) at 750 F - G. In the last mentioned decision Van Heerden
JA posed the question in this form:
"whether/
45. "whether the unforseeh manner in which a foreseen consequence was caused is legally relevant; in other words, whether dolus eventualis requires fore-sight not only of a consequence but also of the causal sequence leading to the consequence."
Thus,with reference to the requirement of
forsee-
ability as well, an argument may be profitably ad-
vanced on
behalf of the accused, should it appear
that the shots were accidentally
fired.
In the circumstances, since the possibility
of prejudice arising from the
irregularity cannot be
ruled out, the conviction and sentence on count 1
cannot
stand and the matter is to be remitted to the trial
Court to give
no 1 accused the opportunity of applying
to re-open his case and, should the
application be
granted,/
46. granted, to allow further evidence to be led on the
question whether the deceased was accidentally shot.
Councel were all agreed that, should there be a risk
of prejudice, the matter ought to be remitted. (If
this results in a finding that no 1 accused acted
negligently in killing the deceased, the question whether
his co-accused ought also be found guilty of culpable
homocide will arise - cf. S v Nkwenja en 'n Ander
1985(2) SA 560 (A).)
All four accused were granted leave to
appeal against their convictions and sentences on
count 1. The decision on the second special entry
requires that they be set aside. This decision is
also pertinent to the sentences imposed on count
2, the robbery charge since one may infer that
the finding that the deceased was deliberately
killed/....
47. killed (murder: dolus eventualis) was,or may
well
have been, taken into account as an aggravating fac-
tor in deciding on an
appropriate sentence for the
robbery conviction. But leave to appeal against
sen-
tence on count 2 was restricted to accused no 1. It
is, however,
unnecessary todecide whether this pre-
sents a difficulty in setting aside
the sentences on
count 2 in respect of accused nos 2, 3 and 4 which
cannot
by the exercise of the wide powers conferred
by the provisions of sec 22 of
the Supreme Court Act,
59 of 1959, be overcome. Mr Jordaan, very
properly,
agreed that in the special circumstances the matter
should be
dealt with as if they too had been granted
such leave to appeal and that
their sentences on the
robbery/
48. robbery charge ought also to be set aside.
In the result:
1. The appeals are allowed. 2. In the case of each accused the con-viction and sentence on count 1 and the sentence on count 2 are set aside. 3. The matter is remitted to the Court a quo to consider the re-opening
of the case of accused no 1, if so requested by him, and, should the application be granted, to hear further evidence.
M E KUMLEBEN JUDGE OF APPEAL
VAN HEERDEN) JJA -Concur
NESTADT
) JJA -Concur
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