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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, GRAHAMSTOWN)

                                                                                                CASE NO: CA06/14

                                                                                                DATE HEARD: 19 MAY 2014

                                                                                        DATE DELIVERED: 19 MAY 2014

In the matter between

S. D.                                                                                                                            Appellant

vs

THE STATE                                                                                                            Respondent

JUDGMENT

BROOKS AJ:

History

[1] Appellant was the second of six co accused who appeared initially before the court a quo (Greenland AJ) on 8 September 2008.  At the time of his first appearance, appellant was […..] years of age.  His mother was present in court and he was represented throughout the proceedings. 

[2] All six accused were charged with the murder and rape on or about 25/26 August 2007, just over a year earlier, of T. M. (“the deceased”).  All pleaded not guilty to both charges.  A protracted trial during which proceedings were remanded from time to time, culminated in the conviction of some of the accused on 19 October 2009.  Having given evidence, appellant was convicted on the charge of murder, but acquitted on the charge of rape. 

[3] Pursuant to the provision of a pre-sentencing report and on 10 December 2009, appellant was sentenced to undergo a period of 15 years imprisonment.  On the same day, an application for leave to appeal to this Court against both the convictions and the sentences was made on behalf of four of the accused.  Leave to appeal against their respective sentences was refused.  Only appellant was successful in the application for leave to appeal against conviction. 

The Judgment on Conviction

[4] The Court a quo considered all the evidence which had been led, evaluating the weight thereof, the probabilities and the demeanor of the witnesses, and concluded that the evidence tendered by respondent could be accepted where it is in conflict with that given by appellant. 

[5] This process resulted in a factual finding that appellant had been present at the scene of the incident involving the rape of the deceased at a stage where she had already been severely injured, and that in his presence the deceased was stabbed in the upper thigh.  The court a quo observed that appellant did nothing to indicate his disapproval at that stage.  It accepted as a fact that appellant left the scene shortly thereafter to catch up with persons who had come upon the scene of the incident and who were destined to become witnesses for respondent in due course, but concluded that whereas ordinarily this may have constituted an act of disassociation, in appellant’s case it was not.  The reason given for this conclusion was the following:

“This is because at the time you were found in a situation of identification with and approval of what was happening to the victim she was already being put to death as already explained.  She died thereafter as a result of a process of putting her to death which process you were a participant in.  When you caught up with them you volunteered a statement that you had raped the victim.  It is at least indicative of your unsympathetic stance about the victim and your identification with what had happened to her and what was happening to her.”

[6] It is plain from the reasoning demonstrated in the portion of the judgment which has been quoted, that the court a quo approached the evidence relating to appellant as demonstrating a common purpose with his co-accused.  This is confirmed in the judgment on the application for leave to appeal, where the following is stated:

“As regards the application for leave to appeal against conviction, I think in respect of S. D. there is merit in the submission made by Mr. M..  That at best for the State it has placed him at the scene and that is it.  (sic)  There is nothing more on the evidence that indicates identification on his part with the crime of murder that was being perpetrated and we also know that he left the scene soon thereafter.  So in his case I think that he has got a basis which might succeed in convincing another court in coming to a different conclusion to the one that this court has come to.”

The evidence

[7] Appellant’s evidence in his own defence denied any presence at the scene of the incident.  This was contrary to the evidence of two witnesses who gave evidence on behalf of respondent, Q. and K., both of whom testified that they knew appellant and placed appellant amongst others at the scene of the incident.  They were also in agreement that appellant was inebriated, that he left the scene of the incident shortly after they did, catching up with them and requesting that he spend the night at K.’s home.  No misdirection is apparent in the rejection by the court a quo of appellant’s own evidence in favour of that given by respondent’s two main witnesses.

[8] It follows that the correctness of appellant’s conviction is to be determined in this Court by an evaluation of the evidence given against him on behalf of respondent. 

[9] No serious challenge was posed to the evidence given by members of the South African Police Service to the effect that on the morning following the incident appellant co-operated and handed over to them the clothing he had worn the night before.  This clothing demonstrated only minor blood spots and evidence of grass. 

[10] Forensic analysis conducted on genetic material found on cervical and vaginal swabs taken from the deceased specifically excluded appellant as a participant in the rape of the deceased. 

[11] K. stated in his evidence that on leaving the scene of the incident in his company, appellant claimed to have participated in the rape of the deceased.  This was denied by appellant.  Cross-examination revealed that K. had made two statements, one as an accused person and one as an intended witness for respondent.  Neither statement made reference to this claim.  Accordingly, the court a quo placed no reliance upon this portion of K.’s evidence.  Similar evidence was given by Q.  Notwithstanding appellant’s denial, this evidence was accepted by the court a quo as indicative of his association with what was happening to the deceased.

[12] No direct evidence was given of any actual participation by appellant in the incident which gave rise to the two charges. 

The legal test to support a conviction based on common purpose

[13] Where there is no evidence of a prior agreement to commit murder, the requirements for a conviction based on common purpose[1] are that the accused: 1. Must have been present at the scene where the violence was being committed; 2. Must have been aware of the assault; 3. Must have intended to make common cause with those who were actually perpetrating the assault; 4. Must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association; and 5.  Must have had the requisite mens rea.  He must have intended the deceased to be killed, or he must have foreseen that possibility and performed his own act of association with recklessness as to whether or not death was to ensue. 

[14] Against this background, the position of a passive by-stander has received recent attention in the Supreme Court of Appeal.[2]  In the absence of conduct manifesting active association in the killing, a passive bystander does not satisfy the test of common purpose to lead to a conviction for murder. 

Evaluation of the application of legal principles to the facts

[15] In my view, the court a quo erred in its conclusion that the facts which were accepted demonstrated on the part of appellant, identification with and approval of what was happening to the deceased.  No direct evidence is available of specific actions on his part which transform his role from that of a passive by-stander to that of active association with the killing of the deceased. 

[16] In its finding, effectively, of common purpose on the part of appellant and his co accused, the court a quo underemphasized the departure of appellant from the scene of the incident before his co accused departed and before the deceased had died.  In the absence of direct evidence indicating active association by appellant with the killing of the deceased, the court a quo misdirected itself in concluding that this action did not constitute an act of disassociation because appellant had been found in a situation of identification with and approval of what was happening with the deceased.

[17] Similar criticism must be leveled against the finding in the court a quo that appellant’s utterance after leaving the scene of the incident to the effect that he had also raped the deceased demonstrated an identification with what was happening to the deceased.  This is a conclusion which could only flow from a considered evaluation of a factual basis demonstrative of something more than a passive role.  The evidence against appellant discloses no conduct that could be said to have constituted active association with the killing of the deceased.  Accordingly, no basis exists for the conclusion of the court a quo that the utterance by appellant demonstrated an identification with what was happening to the deceased. 

[18] It must be borne in mind that the forensic analysis specifically excluded appellant as a participant in the rape of the deceased.  Against the background of this conclusive evidence, the utterance by appellant seems bizarre.  Given the fact that appellant was no more than 15 years of age at the time, if such an utterance did occur, in all probability it was the utterance of an inebriated youngster who, at that age of preoccupation with concerns about social acceptance within a peer group, opportunistically wanted to portray himself as holding a status equal to the active participants in the rape, without considering the potential for a negative outcome from such utterance.  In such circumstances, the court a quo, at best, may have been correct in its conclusion that the utterance demonstrated an unsympathetic stance on the part of appellant; but from that alone no legal culpability can flow. 

[19] It follows that the court a quo was correct in its conclusion in the judgment on the application for leave to appeal that at best for respondent it has placed appellant at the scene of the incident, and that nothing more indicates identification on his part with the crime of murder that was being perpetrated.  In such circumstances, the conviction cannot be sustained.

[20] In the result, the appeal must succeed. 

Order

[21] I would propose that the conviction of appellant and the concomitant sentence on count 1 in the court a quo be set aside and that the order be replaced with the following:

“On count 1, the charge of murdering T. M. on the 25^th of August 2007, you are found not guilty and discharged.”

__________________________

R.W.N. BROOKS

JUDGE OF THE HIGH COURT (ACTING)

I agree, and it is so ordered,

_____________________

J.M. ROBERSON

JUDGE OF THE HIGH COURT

I agree,

__________________________

G.N.Z. MJALI

JUDGE OF THE HIGH COURT

Appearing on behalf of the Appellant:     Adv. L. Crouse

Instructed by:                                         Legal Aid, South Africa

 

Appearing on behalf of Respondent:    Adv. G. Turner

Instructed by:                                       National Director of Public Prosecutions

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