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Gxabhu and Others v S (CC 129/07) [2012] ZAECGHC 2 (12 January 2012)

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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)


CASE NO: CC 129/07

In the matter between:


SANDILE GXABHU ….............................................................1ST APPLICANT

MSAWENKOSI MBALI ….....................................................2ND APPLICANT

SANDISO HINTSA …..............................................................3RD APPLICANT


And


THE STATE …..............................................................................RESPONDENT




JUDGMENT



PAKADE ADJP:


[1] The above three applicants, who were accused no.1,3 and .4 respectively in the criminal trial, apply for leave to appeal to the Full Bench of this Division against the whole of my judgment which convicted them on two counts of assault with intent to do grievous bodily harm (count 1 and 2) murder (count 3) and attempted murder (count 4) as well as against the sentences of twelve months imprisonment imposed on each of the assault charges, life imprisonment for murder and five years’ imprisonment for the attempted murder charge. The sentences in count 1, 2 and 4 were ordered to run concurrently with the sentence imposed in count 3.


[2] There are various grounds of appeal in support of the contention that the conviction and sentence imposed are wrong. Notwithstanding the grounds of appeal which are directed at attacking the convictions and sentence, I am, however, satisfied that the applicants have not satisfied the usual test which would enable me to grant leave to appeal, it being trite that the court cannot grant leave to appeal unless there are good prospects of success on the appeal.


First Incident


[3] Accused no 2, 3 and 4 are directly implicated in both incidents. The evidence is that accused no.2 kicked Phumzile, causing him to fall down into the water ditch. Accused no.4 and Mgwevu hit him with wheel spanners on the head and ribs. This aspect of the evidence is corroborated by Mbongiseni, the second complainant in the assault charge. Accused no.2 delivered a fist blow at him but he blocked it. He then ran away leaving his taxibus behind. He later came back to take his taxibus but his right of way was blocked by a red corolla which was occupied by accused no.2,.4 Mgwevu and accused no.3. Mbongiseni ran away again. Accused no.4 and Mgwevu chased him and caught up with him, assaulted him with fists and kicked him. They took him back to his taxibus. The red corolla occupied by accused no.2, Mgwevu, accused no.4 and accused no.3 escorted Mbongiseni into a taxi to the other side of Flagstaff on the road to Lusikisiki.


Second Incident


[4] In the second incident, the evidence is that a Flagstaff corolla motor car blocked the right of way of a Lusikisiki corolla motor car causing it to stop. In the scene there were many people who demanded that Lusikisiki taxis should return to Lusikisiki. The deceased came out of his corolla motor car in order to talk to those people but shortly after he had alighted from his corolla a red corolla, which had escorted Mbongiseni and others to the road to Lusikisiki, arrived and stopped next to the Lusikisiki kombi. The occupants of the red corolla (accused no.2, 3, 4 and Mgwevu) alighted and insulted the deceased and other persons who were in the Lusikisiki corolla. The deceased ran back into the corolla because it was obvious at that time that accused no.2 , Mgwevu, accused no.4 and accused no.3 were so aggressive that it was obvious that they were about to assault the occupants of the Lusikisiki corolla. While the deceased was engaging a gear in order to drive away, the Flagstaff corolla reversed in order to block the Lusikisiki corolla’s right of way. Meanwhile the mob advanced to the deceased’s corolla. Accused nos 1, 2, 3 and.4 were in the mob. Phendukile and accused no.3 opened the door of the deceased’s corolla and pulled the deceased out of it. Accused no 1 hit the deceased with a stone on the head while accused no.2 hit him on the face with fists. Accused no.4, who was already wielding a firearm advanced towards the deceased forcing his way through the mob and pushing people on his way aside. The other people were hitting the deceased with fists at that time. Accused no.4 came close to the deceased and fired a shot at him at close range. The deceased fell down and died. There are three eye witnesses to these facts, namely Mhlabeni, Cele and Gobingca whose evidence stand unshaken by the defence.


[5] Accused no.1 had testified that on the same morning he was in a red or maroon corolla together with accused no.3 near Mfolozi Funeral Parlour in Flagstaff. They saw Lusikisiki motor vehicles driven past Mfolozi Funeral Parlour into Flagstaff Village and they thought that Lusikisiki people had come to attack them. Immediately they drove up through Flagstaff main road and joined accused no.2 and 4 as well as Mthuthu which were in a white corolla at Kepe motors in Flagstaff from where the two corollas drove up and took a turn towards Holy Cross Hospital. He further testified that they followed the Lusikisiki convoy in anticipation of an attack to their Cressida that was parked at Sipaqeni where the two incidents had occurred. I found in my judgment that had they not followed them the charges against them would not have arisen. They followed them because they knew that they would not drive past their colleagues in Sipaqeni as there was an agreement among them to turn the Lusikisiki taxis back to Lusikisiki.


[6] It was contended in the hearing of the application that accused no.1 was wrongly convicted of the assaults because it was common cause between the defence and the state that he was not present in the first incident at Sipaqeni.


Common Purpose


[7] It is obvious that the Flagstaff taxi association had decided to block the Lusikisiki taxis at Sipaqeni from proceeding to their sub-rank in Mtontsana and to direct them to return to Lusikisiki. It is also obvious that the red or maroon corolla was moving between Mfolozi Funeral Parlour and the venue at Sipaqeni where the Lusikisiki taxi drivers were to be blocked and ordered to go back to Lusikisiki. It is also obvious that the Flagstaff members of the association had a common purpose to block the right of way of Lusikisiki taxis and force them to go back to Lusikisiki and that was done by violent means. We already know that the occupants of the red or maroon corolla were accused no.2, 3, 4 and Mgwevu. Accused no.1 had admitted that he was in this corolla next to Mfolozi Funeral Parlour when they decided to follow the Lusikisiki taxis up to Sipaqeni. Common purpose to the commission of an offence is shown by an agreement or by an active participation in the commission of a crime.


[8] In S v Safatsa and others1, the salient facts were as follows:

Eight accused persons were charged with murder and subversion under the then Internal Security Act, 74 of 1982. The charges followed the murder of one Dlamini, the deputy mayor of the town council of Lekoa, on the 3 September 1984. A mob of people of about one hundred had attacked his house, first by pelting stones at it, and then by hurling petrol bombs through the broken windows, thus setting the house alight. Dlamini’s car was removed from the garage, parked in the street, turned on its side, and set on fire. As his house was burning, Dlamimi fled from it to a neighboring home. He was caught by some members of the mob and was assaulted. Stones were thrown at him, and his head was battered with stones. He was dragged into the streets, petrol was poured over him and he was set alight. He died. The eight accused were part of the attacking mob of approximately one hundred people. Their participation was as follows:

[1] Accused no.1 was one of the persons who caught the deceased when he fled his house. He wrestled with the deceased, and was the first who struck the deceased with a stone;

[2] Accused no.2 was one in the mob who stoned the deceased’s house. When the deceased fled his burning house, the accused threw stones at him which struck his back presumably causing him to fall and be caught by the other pursuers;

[3] Accused no.3 was one of the small group of men who caught the deceased as he fled his house. He wrestled him to the ground and disarmed him.

[4] Accused no.4 was part of the crowd, carrying a placard. She shouted repeatedly; “he is shooting at us let us kill him”. When petrol was poured over the deceased, a member of the crowd objected to him being set alight. The accused slapped this woman in the face, ostensibly to stop her from complaining.

[5] Accused no.5 and 6 were part of the vanguard of the crowd, but they were not seen to throw stones, save from being present as part of the leaders of the vanguard. There was no evidence against them of any active participation in any acts which could be attributed to the death of the deceased.

[6] Accused no.7 was part of the stone throwing mob. He made petrol bombs, poured petrol over the kitchen door of the deceased’s house and set it alight. He assisted in pushing the deceased’s car into the street.

[7] Accused no.8 made petrol bombs which he handed to other members of the mob, with instruction to surround the house and set it alight.


[9] The court a quo found, which was confirmed on appeal with the exception of accused no.5 and 6, that all the other six accused had actively associated themselves with the conduct of the mob which was directed at the killing of the deceased. Botha JA said at 901H-I;

there can be no doubt in my judgment, that the individual acts of each of the six accused convicted of murder manifested an active association with the acts of the mob which caused the death of the deceased”

Accused no. 5 and 6 were obviously acquitted because they had not actively associated themselves with the acts which caused the death of the deceased. The applicants in casu actively associated themselves with the acts of the mob, well knowing that accused no.4 was wielding a firearm in the course of that assault on the deceased. They foresaw or should have foreseen that a scene had been set by accused no.1 hitting him with a stone on the head, no.2 with fists mob hitting him with fists after he had been dragged from the car by accused no.3 for accused no.4 to shoot him, which he did. The first incident is not separate from the second incident because the agreed intention among the members of Flagstaff Taxi Association was to force the Lusikisiki Taxi Association back to Lusikisiki by violent means and it is that intended application of violence that caused the death of the deceased. Accused no.1 was part of that agreement.


[10] In S v Mgedezi and others2 the facts are crisply that:

the violence which led to the trial erupted in room 12 of the mine compound. Room 12 was occupied by mine leaders. A vicious attack was launched in room12 by group members of the Union killing all the six persons who were inside that room. The deceased persons were attacked with stones and sharp instruments and room 12 was set alight by a group of people. Only three of the accused were identified near room 12 at the time of the attack on it. The other accused persons were seen elsewhere in the compound. The attacking group was singing a song with the words “ that impimpis must be killed”. Only accused nos 1,3 and 4 were seen in the immediate vicinity of the room 12 at the time of the attack on it. No state witness saw any of the accused actually inflicting any injury upon any of the four deceased which caused or contributed causally to the death of any of the deceased nor was any of the accused seen physically to assault any of them.


Accused no. 1 was the leader of the group that was singing kill the impimpi. He threw a chair which was lit into the window of room 12 and it caught alight. He did not enter the room. It was held that by so doing he had actively associated himself with the acts of the members of the group which killed the deceased persons.


Accused no. 2 came across the deceased who had already been assaulted by an unknown assailant having inflicted two fatal stab wounds in his back but was still alive when accused no.2 arrived at him. Accused no. 2 inflicted wounds on the upper body and on the head. The post mortem report showed that the deceased was not killed by the injuries which were inflicted by accused no. 2 but by those which were inflicted by unknown assailant. In terms of the principle in State vs Safatsa (supra), accused no.2 could only be convicted of the murder of that deceased if the state had succeeded in proving common purpose between accused no.2 and unknown assailant. In order to succeed the state would have to prove that accused no.2 was present at the scene where the violence was being committed; that he was aware of the assaults on the inmates of room 12 ; that he must have intended to make common cause with those who were actually perpetrating the assault; that he manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others and that he had the requisite mens rea, namely, he must have intended that the room mates of room 12 should be killed or he must have foreseen the possibility of their being killed and performed his own act of association reckless as to whether death was to ensue or not. Accused no.2 was acquitted on the murder charge of this deceased because the state had failed to prove that he had common purpose with the unknown assailant who had inflicted fatal injuries on him.


Accused no.4 was carrying a knob kerrie and an assegai. He threw stones at room 12. He shouted “ons het hulle klaargemaak die mpimpis” It was held that by throwing stones at room 12, he had made common cause with those who inflicted the injuries on the occupants of room 12.


Accused no.6 was among the group which was singing. He was not carrying any weapon. It was held that he did not form common purpose with the people who killed the deceased. He was convicted of public violence.


[11] On the basis of the principle of common purpose as set out in S v Safatsa and S v Mgedezi [ see S v Mzwempi3] accused no.1 2,3 and 4 are all liable for the death of the deceased because they all actively participated in the pulling of the deceased from the car [accused no.3] ;hitting him with a stone at the back causing bleeding at the forehead [accused no.1] hitting the deceased with fists on the face [accused no.2] and shooting of the deceased with a firearm by accused no.4 at close range which accused no.1,2 and 3 were aware that he was in possession of. Accused no.1,2 and 3 would not have been so naïve as to be unaware that accused no.4, who was active in the violent situation which had erupted that same morning, would not use the firearm which was visible to them throughout the ordeal.


ORDER


[12] I am respectively of the view that the two incidents are a single incident perpetrated by the Flagstaff Taxi Association against the Lusikisiki Taxi Association. There is no merit in the appeal. Accordingly the following order is made:


  1. The application for leave to appeal is dismissed.

  2. Leave to appeal is refused.




_________________

LP Pakade

ACTING DEPUTY JUDGE PRESIDENT

For the State : Adv Calaza

Instructed by : The Director of Public Prosecutions


For the Defence : Adv Botma

Instructed by : Elliot & Walker Attorneys


Date Heard : 26 October 2011

Date Delivered : 12 January 2012








11988(1) SA 868 (A)