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S v Nair and Another (561/90) [1993] ZASCA 5 (19 February 1993)

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/CCC CASE NO. 561/90

IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

In the matter between:

SELVIN GANISH NAIR FIRST APPELLANT

POOBLAN NAYNIE GOVENDER SECOND APPELLANT

and

THE STATE RESPONDENT

CORAM: NESTADT, NIENABER JJA et NICHOLAS AJA

DATE HEARD: 10 NOVEMBER 1992

DATE DELIVERED: 19 FEBRUARY 1993

JUDGMENT NESTADT, JA:

I agree with NICHOLAS AJA's treatment of the first appellant's appeal. I am, however, constrained

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to differ from my Colleague's approach to the second appellant's appeal. In my opinion, it should be dismissed in respect not only of count 1 but also count 2.

The complainant's evidence was that the first appellant did not strike the deceased. The trial court did not prefer Manuel's evidence to the contrary and there is no warrant for us to do so. Accordingly, and in the absence of proof that the first appellant was a party to a common purpose (with the second appellant) to assault the deceased in this way, his guilt depends on his conduct in throwing the deceased into the bay. I agree that it is a reasonable possibility that at this stage the deceased was already dead. This being so, the first appellant having acted with the intention of killing the deceased and believing him to be still

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alive, is guilty of attempted murder (see S vs Ndlovu 1984(3) SA 23(A)).
As regards the second appellant, however, the position is different. The fact that the complainant and Manuel gave conflicting versions as to precisely how and by whom the deceased was assaulted before he was thrown into the bay does not matter. According to the complainant, it was the second appellant alone who hit the deceased (with the iron pipe). According to Manuel, the second appellant participated in a joint attack on the deceased; in particular he stabbed the deceased with a knife. It is unnecessary to choose which of these two versions is correct. On both, it is clear that the second appellant assaulted the deceased. On the evidence of the complainant he rendered him unconscious and, on the supposition that

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the deceased was no longer alive when he was thrown into the bay, caused his death. And having regard to the nature of the attack, the only reasonable inference is that it was carried out with the intent to kill (at least in the form of dolus eventualis). On the evidence of Manuel, the second appellant was obviously a party to a common purpose to seriously injure the deceased. Here too, the necessary mens rea was present. The second appellant must have foreseen that the deceased might die as a result. On the hypothesis that the deceased was dead when his body was disposed of, this is what happened. In either event, therefore, the second appellant was guilty of murder. The same, of course, applies if the deceased was still alive when he was thrown into the water.

In the result:

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(1) The appeal of the first appellant -

(a) against his conviction and sentence on count 1
is dismissed;
(b) against his conviction and sentence on count 2
is upheld. Such conviction and sentence are
set aside. He is instead convicted of
attempted murder and sentenced to five years
imprisonment of which three years is to run
concurrently with the sentence on count 1.
His effective sentence will therefore be seven
years imprisonment.

(2) The appeal of the second appellant is dismissed.

NESTADT, JA NIENABER, JA - CONCURS