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IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between
RUFUS NATO NZO FIRST APPELLANT
DOUGLAS MNYISILE TYUTYU SECOND APPELLANT
and
THE STATE RESPONDENT
CORAM : HEFER, NESTADT et STEYN JJA.
HEARD : 23 NOVEMBER 1989.
DELIVERED : 8 MARCH 1990.
JUDGMENT BY J J F HEFER JA.
1.
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 A N C") and
had infiltrated the country from Lesotho. First to ar-
rive, were James and Walk Tall. They were followed in November 1982 by the present first appellant and two con-federates, Joe and Mkuseli. Shortly thereafter Walk Tall returned to Lesotho and írom then onwards first appellant was the leader of the group. Second appellant, a member of the A N C 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 to
/2
2. 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 situ-ated; through its activities these buildings as also a shopping centre and a railway track at Swartkops were ex-tensiveiy damaged by explosions ín which a number of people were injured. A fuel depot was selected as the next tar-get but before it could be attacked certain íncidents oc-curred which caused a dramatic turn of events.
James was killed in January 1983 in the explosion in the Administration Board building in New Brighton. Be-fore his death he had been billeted in the house of Vukile
/3
3.
Tshiwula. On 10 April 1983 Mrs Tshiwula, whose mar-riage had suffered as a result of hér husband's asso-ciation with the group, threatened to lay a charge a-gainst 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 Joe who warned Mrs Tshiwula that he would shoot her were she to "combine her family affairs" with the terrorists since she knew that he was a terrorist him-self. 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 appel-iant happened to pass through Aliwal North en route to
/4
4. Lesotho when he was accosted by members of the local security branch and found to be in possession of an identity docu-ment 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 invol-ved in the terrorist campaign in Port Elizabeth. (His disclo-sures will later be dealt with in detail.) As a result of information that he gave the police the following day,se-cond 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-ac-cused were subsequently charged in the Eastern Cape Provincial Division with a variety of offences including the murder of Mrs Tshiwula. On the murder charge (count 7) the appellants
/5
5.
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 appel-lants could not be convicted of the murder as co-perpe-trators since neither of them had taken any part there-in. The crime was nevertheless found to have been com-mitted with the aim of preventing the deceased from giv-ing information to the police that could compromise the members of the group and their local supporters and im-pede the successful performance of their task. It was corrmitted, the court found, in the execution of the com-mon purpose. Since the murder had been foreseen by the appel-lants and since they had associated themselves with and
/6
6.
persisted in furthering the common design despite such fore-
sight, it was an act for which they were legally responsible. How the conclusion was arrived at that they had foreseen the possibiiity of the murder and were responsible for it appears
from the following passages from the court's judgment:
"Turning to the facts, there is no evidence here of a common purpose to kill or to attack or in-jure, 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 exe-
cution of which design the possibility of cer-tain categories of fatality must have been fore-seen and by inference, were foreseen by the par-ticipants to that common purpose. This conclu-sion is based on the extent and locality of the acts of sabotage proved to have been attribu-table 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
/7
7. 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 to forestall them, the trial judge proceeded as follows:
As to what must have been foreseen as re-gards potential or likely informers there is evi-dence that ANC pamphlets have described as trai-tors certain persons who have given evidence as State witnesses in prosecutions in which the ac-cused have been ANC members or supporters. In those pamphlets it has been urged that such wit-nesses be killed. Other ANC publications have advocated that informers be treated as traitors.
The conclusion is justified that the at-
titude of the organisation towards informers would have been no less belligerent towards any-one 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 af-terwards. The organisation's attitude in these general respects must have been known to the ter-
8.
rorists and to accused nos. 1 and 2, all of whom were members of the ANC and must have 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 threate-ning informer would clearly have been keenly felt. They stood to be exposed far away from their base and the secrecy and success of their mission would thereby be endangered. This risk was one that they must have foreseen before ever they entered
South Africa on this mission Another per-
son 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 the mission and who was thereafter responsible for seeing to the storage of its armoury and explosives and for find-ing the terrorists accomodation. The matter of safe accomodation 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 secu-rity risk. He must necessarily have been as much on the watch for that sort of danger materialising,
/9
9.
as were the terrorists themselves In
all these circumstances the inference is over-whelming that the terrorists and accused no. 2 foresaw that a threatening informer would pro-bably, 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 in-
former" was thus 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
iníerence,
undisturbed by evidence from accused no.2,
is
that he also knew of that warning To
/10
10.
sum up, we find beyond reasonable doubt that accused no. 1 must, on all the evidence and at all materlal times from 10 April onwards, have foreseen the killing of the deceased possibly occurring in the prosecution of the common pur-pose. 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 occurred, he continued to associate in the conrmon purpose right up to the time of his arrest 8 hours be-
fore the murder On the same line of
reasoning indicated in respect of accused no.l, we find that beyond reasonabie doubt the cir-cumstances 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 that in such event fatality might well result, if not would result. Aware of these conside-rations, he continued in the furtherance of the corrmon purpose, and was still so associating in it at the time of the murder."
/11
11.
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 came to South 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 missíon and the proper performance of their task might have to be killed. That possibility became a very real one when Mrs Tshiwula ut-tered the threat. Of thís both the appellants were aware. They were, moreover, aware of Joe's warning and, when mat-ters came to a head s.ix days later when Tshiwula finally left his wife, they must have appreciated the increased
/12
12.
risk of her going to the poíice and the need for preven-ting her from doing so. News of her death could hardly have come as a surprise to either of them. Their coun-sel suggested that they might have been under the impres-sion that Joe's threat might be sufficient to dissuade Mrs Tshiwula from doing what she had threatened to do and that it might accordingly not become necessary to silence her forcibly. But apart from there being no evidence of such an impression, first appellant was the leader of the group and second appellant "the key local figure"; Joe's attitude was that she shouid be killed and, had the appellants thought differently, it is hardly likely that his view would haye been allowed to prevail.
The finding that the murder was committed in the
/13
13. execution of the connmon purpose was not challenged either. Appellants' counsel suggested at one stage of his argu-ment that ]oe might have killed the deceased for his own undisclosed reasons, but rightly conceded that such a sug-gestion is not supported by the evidence and is entirely unrealistic. The evidence overwhelmingly points to her being killed in order to silence her and thus to remove the threat that she posed to the group and to the continu-ation of its activities.
What appellants' counsel did challenge - in a way that will presently be seen - was the finding that his clients associated themselves with and persisted in the furtherance of the common purpose. This finding must be viewed in the light of the following facts which are
/14
14. not in issue.
First appellant was responsible, first with 3ames and later with Joe, for planting the bombs that exploded in New Brighton and at Swartkops and thus ac-tively participated in the execution of the common purpose. He was the one who informed Joe of Mrs Tshiwula's threat By doing so he set the train of events in motion that eventually led to her death. It will be recalled, more-over, that he became the leader of the group in about No-vember 1982 and when he was on his way to Lesotho on 8 May 1983 his purpose was to receive further instructions in regard to the group's activities. Before leaving he had told one of the State witnesses that he would be back after a few months with "many others". To what has
/15
15.
been said earlier about second appellant's role may be added that he visited Maseru during May 1932 after James and Walk Tall had been in the area for some time and ur-ged the A N C officials to step up the campaign in Port Elizabeth. It was after this visit that he started re-ceiving regular consignments of arms and explosives and It was no doubt as a result of his urging that the number of terrorists was increased. The trial judge described him as the "key local figure in the setting up and fur-therance of the terrorism campaign in Port Elizabeth and in the receipt, storage and concealment of ammunition and explosives". Second appellant constructed a table with a hidden compartment in which explosives
/16
16. were kept. At the time of Mrs Tshiwula's threat the table was in the house where first appellant stayed and where the threat was uttered. I mentioned earlier that first appellant overheard the threat and that he repor-ted it to Joe when the latter arrived at the house short-ly afterwards. I also referred to Joe's counter-threat. Having warned Mrs Tshuwila in the way described earlier
Joe left the house with first appellant. The trial
court found that they must have gone to inform second appellant for no sooner had they left than second appel-lant arrived and had the table with the explosives re-moved to another house.
In view of this clear evidence of the appellants' continuing participation in the execution of the comrr,on
/17
17. design despite theír foresight of the possibility of the murder they would appear to fall squarely under paragraph (c) of the well-known dictum in S v Madlala 1969(2) S A 637 (A) at 640H to the effect that the parties to a com-mon purpose are liable for every foreseen offence commit-ted by any of them in the execution of the design if they persist, reckless as to its possible occurrence. Appel-lants' counsel argued, however, that this principle does not apply in a case like the present one. His argument went as follows: The A N C is an organisation with thou-sands of members in this country and several others. Some of its members are known to have committed a multitude of crimes in the execution and furtherance of its objec-tives. It is foreseeable that they may also do so in
/18
18. future. But, since liability cannot conceivably be im-puted to every member for every foreseen crime so com-mitted by all other members, the imputed liability of a member is limited to crimes with which he specifical-lý associates himself. This is so because liability on the basis of the doctrine of corrmon purpose arises from the accused's association with a particular crime and is not imputed to him where he associates himself, not with a particular crime, but with a criminal cam-paign involving the commission of a series of crimes. In such a case he can be convicted, apart from crimes in which he personally participated, only of those with which he specifically associated himself. And in the present case, although the appellants were actively
/19
19. involved in the campaign, there is no evidence that they associated themselves with Mrs Tshiwuia's murder.
I am unable to agree. The argument is shrouded in a veil of irrelevant matter. We are not concerned in the present case with the general question of the liability of members of the A N C for crimes corrmitted by other members nor with the appel-lants' liability merely as members of the organisation. The introduction of these questions into the enquiry only serves to cloud the issue and to obscure the fact that what we are really dealing with concerns the actions of three individuals - Joe and the two appel-lants - who formed the active core of the A N C ceíl in Port Elizabeth after Walk tail had left and James had
/20
20.
been killed. It can be inferred from all the available evidence (eg of their conduct when Mrs Tshiwula uttered the threat) that the three of them functioned as a cohe-sive unit in which each performed his own allotted task. Their design was to wage a localised campaign of terror and destruction; and it was in the furtherance of this design and for the preservation of the unit and the pro-tection of each of its membérs that the murder was ccm-mitted. This being the narrow ambit within which their liability falls to be decided it is clear that they can-not derive material assistence from McKenzie v_Van_der Merwe 1917 A D 41 in which the plaintiff unsuccessfully sought to hold the defendant (who had joined a rebel corrmando during the 1914 rebellion) liable in damages
/21
21 .
by virtue of the doctrine of common purpose for delicts
committed by other rebels. All the members of the court
were agreed in that case that the claim could only suc-
ceed if it had been shown that the defendant had autho-
rized the acts in question and the majority took the view
that this had not been done. As INNES CJ pointed out
at 47 -
" where it is sought to affix liability on an
accused for a delict, whích he neither instigated,
perpetrated, aided nor abetted, it must be shown that he aúthorised it, so as to make the act com-plained of his act. And that must depend upon the circumstances of each case; do they or do they not justify the inference that the perpe-trator was the agent of the accused to do the particular act? "
There is no resemblance between the facts in McKenzie's
/22
22.
case and the facts of the present case, Remarks such as those of INNES CJ (at 45) that a rebel's mere act of joining a commando could not confer upon his fellow in-surgents a mandate "to seize horses and stock or to de-stroy property in furtherance of his operations" and (at 47) that "every member of a commando is (not), by the mere fact of his membership, liable for the acts of every other member'within the scope of the objects of the rebellion ' " do not assist the appel-lants.
Be that as it may,the nub of the argument is that the appellants' participation in the execution of the common design is insufficient and that evidence of their association with the murder as such is required to
/23
23.
render them liable. This submission entails a dis-avowal of the principles stated in Madlala's case (supra) at 640 G-H. It i s trite that the parties to a corrmon purpose to corrmit murder may be convic-ted of that offence once it is corrmitted by one of them . This is what paragraph(b) of the relevant passage says. But there is also paragraph (c) to which I referred earlier and with which the submission can-not be reconciled. Appellants' counsel sought to overcome this difficulty by submitting that the re-ference in paragraph (c) to "some other crime" was intended as a reference to a particular crime and not a series of crimes. This is plainly not so.
/24
24.
In a case like the present one there is no logical distinction between a common design relating to a particular offence and one relating to a series of offences and I can conceive of no reason for draw-
ing such a distinction. ( Cf S v Motaung and
Another 1961(2) S A 209 (A) at 210H - 211A ; S v Nhiri 1976(2) S A 789 (R A D ) at 790E-791H. ) In my judgment the appellants' liabili-y ty in terms of paragraph (c) of Madlala's case has been established. I say this, however, subject to what follows.
In an alternative argument appellants' counsel challenged first appellant's conviction on
/25
25. the ground that he had aiready dissociated himseif from the corrmon purpose by the time that the murder was corrmitted. First appeilant, it will be recal-ied, left Port Elizabeth for Lesotho on the very day of the murder but was detained at Aliwal North in connection with his identity document. (As will pre-sently appear he was not formally arrested at Aliwal North but for convenience I shall refer to his "de-tention" there.) Mrs Tshiwulawas murdered about ten hours after his detention. The court a guo considered the question of hís possible withdrawal from the common purpose in the context of
/26
26.
his departure for Lesotho. His departure as such, it was found, cannot be regarded as an act of dissoci-ation since he had every intention of returning to con-tinue the campaign. His counsel submitted, however, that his dissociation came after his detention when he confessed to being a trained terrorist and his involve-ment in some of the explosions in Port Elizabeth. The court a quo's view of this part of his conduct will be mentioned after the evidence has been reviewed.
During the morning of 8 May 1983 Lieutenant De Lange and Warrant Officer Bezuidenhout of the security branch at Aliwal North were on patrol when they encoun-tered a Mikrobus on the outskirts of the town. Having
/27
27.
ordered the driver to stop De Lange requested the pas-
sengers to produce their identity documents. First ap-pellant was one of the passengers. The document that he produced had been issued to Ndima Saliwa and appeared to De Lange to have been tampered with since the offic-ial stamp of the issuing authority did not cover the photograph. He decided to take first appellant to his office pending further investigation. On the way he informed first appellant of his suspicion about the document and asked him for his corrment. First appel-lant's reply was that he wanted to tell De Lange the truth about his military training and the explosions at New Brighton and the Swartkops railway track. De Lange did not think at first that first appellant was
28.
serious. In his office he asked him to elaborate on his al-legations where upon first appellant told him that his friend James had died in the explosion in New Brighton; that he (first appellant) had lost the magazine of a She-Peterson (a sub-machine gun) at Swartkops; that the document he had produced was false and that his real name was Rufus Nzo. Upon being asked about his knowledge of explosive devices he asked for a pen and paper and proceeded to sketch,first, what he said was the device he had used in New Brighton and which had killed his friend, and then another device which he said was the one he had used on the Swartkops rail-way track. On the second sketch he wrote the letters BPand explained that the next target was to be the B P fuel depot in Port Elizabeth. Still not entirely convinced, De
/29
29.
Lange handed him an album containing the photographs of
a large number of fugitives from South Africa known to
the police and asked him if he knew any of them. First
appellant listed 31 of them as persons whom he recognised.
This convinced De Lange that the appellant could well
be a terrorist. He telephoned the security branch in
Port Elizabeth and the result was that first appellant
was fetched from Aliwal North that same evening and taken
to Jeffreys Bay where he was detained. (It should per-
haps be mentioned that Mrs Tshiwuia was killed at about
9 o'clock that eveníng while the officers who had pro-
ceeded to Aliwal North to fetch first appellant were on
their way.)
Certain events that occurred in Port Elizabeth
/30
30.
the next day may also conveniently be mentioned at this
stage. These events were related to the trial court by Major Du Plessis, the investigating officer, who took charge of first appellant upon the íatter's arrival in Port Elizabeth at about 4 o'clock in the morning. In the course of the day first appellant informed Du Ples-sis of the identity of his confederates in Port Elizabeth including second appellant to whom, he said, he had given arms and explosives to conceal. He also told Du Plessis about the means of communication between terrorists in South Africa and A N C officials in Lesotho and showed him a tube of toothpaste in the bag that had been taken from him at Aliwal North. Three coded messages were dis-covered in the tube. Later that afternoon he pointed
/31
31.
out second appellant as he was leaving the place where he was employed. Second appellant was detained. At first he denied that he knew first appellant or anything about concealed weapons. At Du Plessis's request first appellant then spoke to him and he told second appellant to surrender "die vuurwapens, of the AK's en plofstof wat hy vir hom gegee het om te versteek". This apparently caused second appellant to change his tune for he started to co-operate with the police and as a result the table with the hidden compartment and the explosives contained therein were discovered.
According to De Lange, Bezuidenhout and Du Ples-sis first appellant acted entirely voluntarily throughout. In cross-examination it was put to them that this was not
/32
32.
so and that first appellant had been severely assaulted.
But, although a trial-within-a-trial was conducted to enquire into this allegation (and similar allegations by other accused against other police offícers, in the course of which most of the accused testified under oath), first appellant was not called to do likewise. The re-sult was that the police evidence stood uncontradicted and was accepted. It must accordingly be accepted that first appellant voluntarily revealed to De Lange and Be-zuidenhout before the murder that he was a trained ter-rorist who had taken part in two explosions ín Port Eli-zabeth and that a fuel depot in the city would be the next target. We must also accept that this information was compietely unsolicited and that he did his utmost to
/33
33. convince De Lange and Bezuidenhout of its truth when
they tended at first to disbelieve him.
I am unable to support the court a guo's finding
that first appellant's conduct at Aliwal North did not
constitute a dissociation on his part from the common
purpose. The trial judge said in the judgment that
first appellant -
" did nothing from his side, apart from
his confession at Aliwal North as to his own
role in certain aspects of the mission, to evi-dence at any time relevant to the murder dissoci-ation of himself from the common purpose such as the obvious expedient of informing the police of Joe's presence in Port Elizabeth or of the danger hanging over the deceased. When he did mention the names of the people associated with him in Port Elizabeth that was the following day."
That his confession related only to his own role in the
/34
34.
campaign is not entirely correct for what the iearned judge omitted to say is that first appellant told the poiice about the next target. He must have realized that this information wouid effectively put the tar-get beyond the terrorists' reach or would at least impede an attack thereon. One does not expect this kind of information to be revealed by someone who still wanted to be associated with the execution of the corrmon purpose.
But this is not my major concern about the find-ing. What weighs with me more is the manner in which the revelations came to be made and the obviously fore-seeable consequences thereof. This is not a case of a
/35
35.
suspect who confesses his guilt reaiizing that the game
is up and that he might as well confess. First appel-
lant's game was by no means up. To his knowledge the
police suspected no more than that his identity document
had not been properly issued. Had he wished to do so
he could have explained the apparent irregularity untruth-
fully; or he could have admitted it without revealing
anything about his past activities which were of such a
nature tha.t he had every reason to suppress them parti-
cularly if he still desired to persist therein. What I
find so remarkable is that this trained terrorist who
had been ínvolved in serious acts of sabotage sudden-
ly turned traítor and almost anxiously told the police
about his deeds when he had no reason to do so. He must
/36
36.
have realized that by doing so he was destroying every possible chance he still had of continuing his mission since the police would certainly not let him go after getting to know who and what he was and what he had done. And even if they would be foolish enough to release him, his anonymity was destroyed; he could be of no further use and would, on the contrary, rather be a liability tq his confederates remaining in Port Elizabeth. Unless, therefore, he wanted no further part in the mission why did he behave in this manner?
His conduct the following day - particularly his insistence that second appellant should surrender the weapons and explosives he had been given - reveals what his attitude was. This was a plain act of abjuration
/37
37.
and, although it could at that stage no longer assist
him, it is relevant to his state of mind at the time of his disclosures to De Lange. The trial court held it against him that he was not more informative when he spoke to De Lange. But de Lange made it quite clear that he did not interrogate first appellant properly; what he sought was some form of confirmation of the latter's al-legation that he had been trained as a terrorist and when he received this he telephoned the secúrity branch in Port Elizabeth beth and washed his hands of the matter. De Lange's evidence is that he sat around with first appellant for hours waiting for his colleagues from Port Elizabeth to arrive and that during all those hours he did not question first appellant further. When Major Du Plessis interviewed him the
/38
38.
next day he was brirrming with information which he was
only too willing to reveal.
I am accordingly of the view that first appel-lant dissociated himself from the corrmon purpose before the murder was corrmitted and thus absolved himself from liability therefor. A final point should be mentioned in this connection. First appellant's dissociation did not form part of his defence at the trial. On the con-trary, as I mentioned earlier, it was suggested to De lange and Bezuidenhout that first appellant did not speak to them of his own free will. It does not appear from the record , nor could counsel who appeared in this court inform us with certainty, whether the point was raised in argument or whether the trial judge dealt with it suo moto
/39
39.
in the judgment. But it seems to me to be immaterial whether it was raised by the defence or not. Bearing in mind that, in a case where liability is sought to be imputed to the accused as an alleged party to a common purpose, it is necessary for the State to prove his as-sociation with the common purpose at the time of the commission of the offence (of S v Motaung and Another
( supra ) at 211 A ), he should, in my view, be ac-quitted if it appears from the evidence that he dissoci-ated himself before íts commission. First appellant should thus have been acquitted.
There remains the question of second appellant's sentence for the murder. The trial court found that there were extenuating circumstances and sentenced him to fifteen
/40
40. years' imprisonment of which ten years were ordered to
be served concurrently with the sentence of twenty years'
imprisonment imposed on him on count I for treason. The
only submission on his behalf was that the sentence is
disturbingly excessive. I do not agree. The sentence
is a heavy one but I do not regard it as sufficiently in-
appropriate to entitle this court to interfere.
The result is that first appellant's appeal is
upheld. His conviction and sentence on count 7.
are set aside. Second appellant's appeal is
dismissed.
NESTADT JA )CONCURS.
SAAKNOMMER: 501/86
IN DIE HOOGGEREGSHOF VAN SUID-AFRIKA
(APPèL AFDELING)
In die saak van:
REFUS NATO NZO Appellant no 1
DOUGLAS MNYISILE TYUTYU Appellant no 2
en
DIE STAAT Respondent
CORAM: HEFER, NESTADT et STEYN, ARR
AANGEHOOR: 23 NOVEMBER 1989 GELEWER: 8 MAART 1990
UITSPRAAK STEYN, AR.
2
Ek het die uitspraak van my kollega Hefer gelees. Ek gaan akkoord met sy uiteensetting van die basiese feite. Ek stem ook met hom saam dat die appèl van eerste appellant moet slaag, maar vir ander redes as dié deur hom genoem. Ek verskil egter met eerbied van hom dat die appèl van tweede appellant van die hand gewys moet word. Na my oordeel behoort beide appèlle te slaag omdat dit nie bewys is dat daar 'n gemeenskaplike doel tussen appellante en Joe was om die porledene te vermoor nie. Die bestaan van die breë algemene, of oorkoepelende gemeenskaplike doel om sabotasie in die Port Elizabeth gebied te pleeg is, na my oordeel, nie genoegsaam om appellante sonder meer regtens aanspreeklik te hou vir die moord op die oorledene nie. Die feit dat hulle en Joe aan dieselfde terreur-sel behoort het verander na my mening ook nie die posisie nie. Appellante het nie met Joe ooreengekom om die oorledene te vermoor nie en het niks gedoen om hom met die pleging van die moord te help
3
nie. Dít blyk duidelik uit die volgende passasies in die
uitspraak van die hof a quo op die meriete wat nie voor
hierdie Hof betwis was nie:
"It is not alleged that murder was one of the acts which the accused conspired to commit.
There is no evidence in this case that any accused was present at the commission of the crime or did anything specifically connected with the act of killing. ...
Turning to the facts, there is no evidence here of a common purpose to kill or attack and injure, whether aimed at the deceased or any one else."
Appellante was ook onbewus daarvan dat die moord gepleeg
is. Hulle is skuldig bevind slegs op grond van die
volgende, t.w.: die bestaan van die voormelde breë
algemene, oorkoepelende, gemeenskaplike doel waaraan
hulle en Joe deelgenote was, dat die moord gepleeg is ter
uitvoering van daardie doel, dat hulle en Joe lede was
van dieselfde, redelik kleine, terreur-sel en dat die
moontlikheid van die moord vir hulle voorsienbaar was.
Daardie algemene doel kan egter op baie verskillende
4
maniere en deur 'n groot getal verskillende deelgenote ter uitvoering gebring word. 'n Besondere deelgenoot kan gevolglik, beide wat tyd en plek betref, vêr verwyderd wees van die uitvoerende daad van 'n ander deelgenoot. So 'n deelgenoot mag boonop onbewus wees van die pleging van die besondere daad. Dik sou gevolglik regtens onhoudbaar wees om, slegs op grond van so 'n algemene gemeensaplike doel, iemand wat, sê, in die noorde van Transvaal doenig is met die uitvoering daarvan, aanspreeklik te hou vir 'n deelgenoot se uitvoerende daad in Kaapstad waarby hy nie betrokke was nie. Dieselfde oorweging geld egter ook vir die geval waar die werklike dader en 'n ander deelgenoot aah die oorkoepelende doel lede van dieselfde groep is. Hierdie oorweging is reeds deur hierdie Hof ingesien in McKENZIE v VAN DER MERWE 1917 AD 41, wat gegaan het oor 'n eis om skadevergoeding vir skade aan die eiser berokken deur rebelle in die Vrystaatse Riemland gedurende die rebellie van 1914. Die verweerder was deur die eiser
5
aangespreek vir skade deur sy mede-rebelle berokken in
die gebied waarin hy ook opgetree het. Dit was egter nie -
bewys dat die verweerder by die skadeveroorsakende
optrede betrokke was nie. Die eiser het nie in die
Vrystaatse Hooggeregshof geslaag nie en sy appèl is deur
hierdie Hof afgewys. (Dit is, sovêr my kennis strek, die
eerste saak waarin die leerstuk van gemeenskaplike doel
pertinent in ons regspraak ingevoer is: LAWSA Vol 6 par
117 p 113; et vid. die artikel deur M A Rabie in 1971
Vol 88 SALJ 227 op 230. Ek handel later met die vroeëre
saak van STEENKAMP v KYD (1898) 15 SC 221.) In sy
uitspraak het Hoofregter Innes o.m. die volgende gesê op
pp 47-48:
"... I am not prepared to hold that every member of a commando is, by the mere fact of such membership, liable for the acts of every other member 'within the scope of the objects of the rebellion'. The term 'commando' is an elastic one, and the members which compose it may sometimes be engaged in wholly distinct and different operations. I do not propose to lay down any general rule. As already remarked.
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where it is sought to affix liability on an accused for a delict, which he neither instigated, perpetrated, aided nor abetted, it must be shown that he authorised it, so as to make the act complained of his act. And that must depend upon the circumstances of each case; do they or do they not justify the inference that the perpetrator was the agent of the accused to do the particular act? And where there is no evidence of express authority the presence of accused at the time and his co-operation then in a common purpose would, of course, become an element of great importance."
Die geleerde Hoofregter het klaarblyklik nie die
verweerder se deelname in die blote uitvoering van die
oorkoepelende gemeenskaplike doel van die rebellie beskou
as magtiging deur hom vir die daders se skadelike optrede
nie. In die onderhawige geval was daar ook getuienis
dat verskillende lede van die betrokke sel op
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