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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION: GRAHAMSTOWN)

CASE NO: CC27/2014

In the matter between:       

CEDRIC JOHNSON                                                                         APPELLANT

AND

THE STATE                                                                                     RESPONDENT

JUDGMENT

DAWOOD, J:

1.    The Appellant was granted leave to appeal against his conviction in respect of Count 4 – Murder by the Supreme Court of Appeal.

2.    The thrust of the appeal is that the state had failed to establish mens rea in the form of dolus eventualis in respect of the count of murder; in that the totality of the evidence did not establish that they must have foreseen, the possibility that resistance to the robbery may result in an exchange of gunfire and that either one of their numbers, the complainant or one or the other of the persons resisting the execution of the robbery may be shot and fatally injured in the process of the robbery.

3.    The Appellant’s counsel further contended:

a)    That the Appellant denied being involved in a planned robbery and accordingly did not testify with regard to his intention.

The court accordingly had to infer his state of mind or intention from all the proven evidence using inferential reasoning.

b)    That easy targets in the context used by the Up Stand Dogs gang could only refer to the ease of the commission of the offence and  or the ease with which detection or arrest can be avoided.

c)    The perpetrators when told about a greater number of people being present resolved to overcome their resistance by use of superior numbers.

d)    There is no indication that the use of excessive force to overcome resistance was contemplated.

e)    There is further no indication that resistance from outside sources such as the SAPS, members of the public or security companies was contemplated or catered for which is understandable as this was an easy target.

f)     The fact that an unloaded firearm was used is an indication that serious resistance by any party was not contemplated at all.

g)    The intention in the current circumstances was clearly to commit the offence using the element of surprise and the unloaded firearm as a threat to, subdue the victim or victims, commit robbery and make a quick getaway.

h)    The fact that they did not react when they heard a vehicle is an indication that no external resistance was expected or considered.

i)     In this case where the robbery is carefully planned, to take place late at night, picking an easy target situated in a relatively remote location with minimal security arrangements, making use of stealth and surprise to quickly overpower the victim before an alarm can be raised and to so enable you to effect the robbery whilst the victim is fully incapacitated followed by a hope for an easy get away, armed resistance is much less foreseeable.

j)     It is only the complainant’s unforeseeable and unexpected activation of the portable panic button that foiled the plans of the perpetrators.

k)    In these circumstances the finding that the perpetrators must have foreseen and therefore did foresee armed resistance and fatal consequences does not necessarily follow.

l)     It is not the only reasonable inference in the circumstances. The facts rather indicate that the perpetrators went to some length to avoid the possibility of resistance ever being encountered. 

m)  It accordingly cannot be said that the Appellant’s guilty on the count of murder had been proved beyond a reasonable doubt.

4.    The respondent countered this by inter alia:

a)    Citing the following cases on circumstantial evidence.

i)             S v Reddy and Others[1] (416/94) [1996] ZASCA 55 (28 May 1996)

“In assessing circumstantial evidence one needs to be careful not to approach such evidence upon a piece-meal basis and to subject each individual piece of evidence to a consideration of whether it excludes the reasonable possibility that the explanation given by an accused is true. The evidence needs to be considered in its totality. It is  only then that one can apply the oft-quoted dictum in R v Blom 1939 AD 188 at 202-3, where reference is made to two cardinal rules of logic which cannot be ignored. These are, firstly, that the inference sought to be drawn must be consistent with all the proved facts and, secondly, the proved facts should be such 'that they exclude every reasonable inference from them save the one sought to be drawn'. The matter is well put in the following remarks of Davis AJA in R v De Villiers 1944 AD 493 at 508-9:

   'The Court must not take each circumstance separately and give the accused the benefit of any reasonable doubt as to the inference to be drawn from each one  so taken. It must carefully weigh the cumulative effect of all of them together, and it is only after it has done so that the accused is entitled to the benefit of any reasonable doubt which it may have as to whether the inference of guilt is the only inference which can reasonably be drawn.”

ii)            REX v DE VILLIERS[2] 

“The Court must not take each circumstance separately and give the accused the benefit of any reasonable doubt as to the inference to be drawn from each one so taken. It must carefully weigh the cumulative effect of all of them together, and it is only after it has done so that the accused is entitled to the benefit of any reasonable doubt which it may have as to whether the inference of guilt is the only inference which can reasonably be drawn. To put the matter in another. way; the Crown must satisfy the Court , not that each separate fact is inconsistent with the innocence of the accused, but that the evidence as a whole is beyond reasonable doubt inconsistent with such innocence.”

iii)          R v MLAMBO[3]

“In my opinion, there is no obligation upon the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that an accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused.

An accused's claim to the benefit of a doubt when it may be said to exist must not be derived from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which are not in conflict with, or outweighed by, the proved facts of the case.”(my emphasis)

iv)           The respondent’s counsel further stated that the resistance was contemplated even on the Appellant’s version just not serious resistance and there is no other explanation for the presence of the firearm.

v)            He submitted that the trial court correctly found that the Appellant was part of a prior agreement to rob Van Rensburg and that in order to overcome resistance they would go armed and take more “soldate”.

vi)           The trial court correctly found that the complainant would have some security in place and if she was in the process of being robbed, and given the opportunity to summon assistance would do so.

vii)          The trial court correctly rejected the argument and found that a reasonable person would have foreseen the possibility that a homeowner would be able to sound the alarm at the first sign of an intrusion and would foresee the possibility that the sounding of an alarm would result in rapid and armed response to the intrusion into the home and ultimately that would carry with it the possibility of violence in the form of a shootout.

viii)        The trial court accordingly correctly found that the facts of this matter establish that the Appellant ought to have reasonably foreseen the possibility that their unlawful and criminal conduct in robbing the complainant would elicit resistance and he did so foresee the possibility and proceeded reckless as to the consequences of that foresight and therefore the appellant is guilty of murder.

5.    The crisp issue in this matter is whether or not the state had established that the appellant had the requisite mens rea in respect of the count of murder of his co-perpetrator as found by the court a quo.

a)    There are numerous decisions dealing precisely with the issue of mens rea in this context and the same bear mentioning to determine the approach to be adopted to the facts in this matter.

b)    In S v Nkosi[4] it was held:

“[3] The only issue before us is whether the trial court had correctly convicted the appellant of the murder of his fellow robber. The appeal is with leave of this court. The broad thrust of the appellant's contentions is that the deceased had embarked on a 'frolic of his own' which caused his own death, and that the state had failed to prove that the appellant had the requisite intent for murder. The conviction appears to have been based on dolus eventualis…

…

[6] On the common-cause and proved facts, the appellant and his fellow robbers reasonably foresaw the likelihood of resistance and a shoot-out, hence the need to arm themselves with loaded firearms. The shoot-out between Mr Ngobese and the deceased occurred in the same room where the robbery was being perpetrated and in the course thereof. I am unable to agree with the submission that it must count in the appellant's favour that the robbers accosted Mr Ngobese while under the impression that he was unarmed. They foolishly ignored, to their peril, his suggestion that they search him. And they foresaw the very real possibility of there being other employees and customers present at the coalyard, even though it was almost closing time. The facts are clearly distinguishable from those in Molimi.

[7] I am mindful of the fact that intent is a subjective state of mind and that 'the several thought processes attributed to an accused must be established beyond any reasonable doubt, having due regard to the particular circumstances of the case' (per Olivier JA in S v Lungile and Another 1999 (2) SACR 597 (SCA) ([1999] ZASCA 96) para 16).  Equally important is to be cognisant that 'the question whether an accused in fact foresaw a particular consequence of his acts can only be answered by way of deductive reasoning. . . . (b)ecause such reasoning can be misleading, one must be cautious' (see S v Lungile and Another para 17). The facts in Lungile are more comparable with those in the present instance. In the course of a robbery at a store, a policeman arrived on the scene and exchanged gunfire with one of the robbers.

The learned judge also rejected the novus actus interveniens argument.

[13] In conclusion and to summarise: on the facts of this case the  appellant was well aware that the fact of him and his fellow robbers being armed with loaded firearms may result in a shoot-out or, as it was referred to in Bergstedt and in Dube, that they may encounter 'dangerous resistance'. He reasonably foresaw subjectively that, in the course of encountering such 'dangerous resistance', the firearms may be used with possible fatal consequences. He was thus correctly convicted of murder and the appeal must fail. I can do no better than to end off with the inimitable eloquence of Holmes JA in S v Nkombani above at 896E – F:

'This conclusion, arrived at by reference to reason and the facts, is also consistent with social necessity, that wicked minds which devise and plan such evil deeds may know the risks they run in the matter of forfeiting their own lives.' (my emphasis)

c)    In S v Nhlapo and Ano[5]:

“Held, that the only possible inference, in the absence of any negativing explanation by the appellants (of which there was none), was that they planned and executed the robbery with dolus indeterminatus in the sense that they foresaw the possibility that anybody involved in the robbers' attack, or in the immediate vicinity of the scene, could be killed by  crossfire: the shooting of one guard by another was, as far as the robbers were concerned, "an envisaged incident or episode" in the crime planned by them.

Held, accordingly, that since it was clear that even foresight of the virtual certainty of the deceased's death would not have deterred the appellants and that they had consequently acted recklessly, dolus eventualis had been proved and they had rightly been convicted of murder.  Appeal dismissed.

Particular reliance was also placed on the statements in the said textbook (at 138) that recklessness is not tantamount to dolus eventualis. The defence, ie  the appellant, is relying greatly on the minority judgment of the late Chief Justice STEYN in Nkombani's case, and cases relied upon by him, and especially on his statements at 883A - E, 884C, 884H, 885A. The rather academic questions of aberratio ictus and various forms of dolus, raised by the reference to Nkombani's case and various other cases referred to therein, in the textbook of De Wet and Swanepoel and cases cited hereafter, raises a number of interesting, albeit academic questions: (a) Aberratio ictus, which means nothing more than the hitting of a wrong target is not, with respect to RUMPFF JA in Nkombani's case, a real issue. It merely means that an attack, call it a shot, hit a different target  than it was intended to do.

Criminal responsibility for it, if any, would purely depend on the state of mind of the person directing it: it may be, depending on the circumstances, a dolus (which, almost invariably, will be dolus eventualis), culpa, or no guilt at all.

(M Doleni Tumuc, quoting various German and Austrian authorities.) (b) Dolus may be dolus determinatus, if directed against a precise and definite object; or  dolus indeterminatus, if definitely intended against any objects it may find in its way; or dolus eventualis, if it means an intent to do a deed whatever its consequences may be. Dolus indeterminatus is certainly equal to dolus determinatus because dolus indeterminatus determinatur ab exito. (Prof Dr E Janitti Piromallo Diritto Criminale Rome 1932.)

…

For the reasons stated below, I have no doubt that the robbers must have foreseen the possibility that one of them might kill one of the guards,  and that they were reckless as to whether or not this consequence ensued. If they did not foresee the further possibility of a guard being killed by a shot fired by one of his co-guards, the question would arise whether the unforeseen manner in which a foreseen consequence was caused, is legally relevant; in other words, whether dolus eventualis requires foresight not only of a consequence but also of the causal sequence leading to the consequence. See, in regard to the distinction drawn in German law  between material and immaterial deviations from the foreseen causal chain, Jescheck Lehrbuch des Strafrechts, Allgemeiner Teil 2nd ed at 232 - 3. In view of the conclusion at which I have arrived, I find it unnecessary, however, to consider this question.

The trial Court found that the appellants foresaw the possibility of a  guard being killed by a shot fired either by one of the robbers or by a co-guard in the course of a shooting affray, and that they were reckless whether or not fatal consequences ensued from the envisaged shooting. The finding as to the appellants' foresight was assailed by counsel for Nhlapo. It was argued that the robbery was clearly a well planned one; that each robber had the task of tackling and disarming one of the guards, and that the robbers therefore could not have foreseen that somebody would start firing from inside the Makro building.

I do not agree. As stressed by the trial Court, the robbers knew that they would have to attack and overpower guards who were armed for the specific purpose of using their fire-arms to thwart any attempted robbery. It may be conceded that they hoped to overpower the guards without a shot being fired by the latter, but they must have known that the guards would endeavour to use their fire-arms when attacked. It follows that they must have known that their attack on the guards could lead to a gun battle during which anybody, be it a guard, one of the robbers or an innocent bystander, might be killed in the envisaged cross-fire. Consequently they also foresaw the possibility of one guard being killed by a shot fired in the direction of the robbers by another guard or, for that matter, a person such as a staff member of Makro witnessing the attack. In sum, the only possible inference, in the absence of any negativing explanation by the appellants, is that they planned and executed the robbery with dolus indeterminatus in the sense that they foresaw the possibility that anybody involved in the robbers' attack, or in the immediate vicinity of the scene, could be killed by cross-fire. Compare the remarks of RUMPFF JA in S v Nkombani and Another  1963 (4) SA 877 (A) at 892A. Or, to adopt the words of HOLMES JA in the same case (at 896), the shooting of one guard by another was, as far as the robbers were concerned, "an envisaged incident or episode" in the crime planned by them.”

d)    S v Lungile and Another[6] the court held:

[12] As far as the murder charge is concerned, the first appellant's conviction was based on common purpose. It was not proved that he was armed or that he fired any shot, but he was part of the gang of four of which at least two were armed with firearms and he actively participated in the execution of the robbery. According to his own plea explanation he was aware that Toboshe was in possession of a firearm. Neither in his plea explanation nor in what was put to any witness was it suggested that he was not aware that second appellant was armed. In fact, the State witnesses all say that second appellant brandished his revolver from the outset of the robbery. The trial Court found that first appellant knew that second appellant was armed.

[13] It could be argued that first appellant's flight from the shop when he saw De Reuck enter with a firearm demonstrated his lack of association with any criminal common purpose. This argument would not be based on dissociation from a common purpose, but would be aimed at creating doubt whether there had ever in fact been an association with a criminal common purpose. This distinction is subtle, but real, and has been made by this Court before (see S v Singo  1993 (1) SACR 226 (A) at 232g-h per EM Grosskopf JA; S v Nomakhlala and Another  1990 (1) SACR 300 (A) at 303g).

[14] Had there in the present case not been a prior agreement to commit a crime this might have been a valid argument (see S v Mgedezi and Others 1989 (1) SA 687 (A) at 705I-706C and S v Jama and Others 1989 (3) SA 427 (A) at 436D - I).

But, in view of the prior agreement to commit a robbery and his participation in the execution thereof as set out above, the fact that the first appellant left the scene before the shooting started cannot avail him.

[15] The defence of absence of dolus on the part ofthe first appellant

On behalf of the first appellant it was argued that, even if he shared the common purpose of the gang to commit the robbery, the State had not proved that he had the necessary dolus in respect of the murder.

Counsel for the State, on the other hand, argued that in participating in the robbery the first appellant could not but have foreseen the likelihood of resistance by the employees of Scotts, or by the security guards, or the police, or by armed passers-by who became aware of the robbery. Well-knowing that at least two of the gang members were armed with firearms, he must have foreseen that someone might be injured or killed in a confrontation. Nevertheless, he persisted in associating himself with the robbery. In such circumstances our Courts very often draw the inference that an accused foresaw the possibility that a killing might ensue and, because he persisted, reckless of such consequences, he had the necessary mens rea in the form of dolus eventualis (see inter alia Mkhwanazi v S [1998] 2 All SA 53 (A) at 56b-d per FH Grosskopf JA; see also S v Maritz 1996 (1) SACR 405 (A) at 415a-f for the general approach).

…

 [17] In the present case, the crucial question therefore is whether the State proved beyond reasonable doubt that the first appellant in fact did foresee ('inderdaad voorsien het') that the death of a person could result from the armed robbery in which he participated.

In this case, as in many others, the question whether an accused in fact foresaw a particular consequence of his acts can only be answered by way of deductive reasoning. Because such reasoning can be misleading, one must be cautious. Generally speaking, the fact that the first appellant had prior to the robbery made common cause with his co-robbers to execute the crime, well-knowing that at least two of them were armed, would set in motion a logical inferential process leading up to a finding that he did in fact foresee the possibility of a killing during the robbery and that he was reckless as regards that result.

[18] In my view the inference is inescapable that the first appellant did foresee the possibility of the death of an employee of Scotts: he knew that at least two of his co-conspirators were armed with firearms; he knew that Scotts is in the main street of Port Elizabeth, and that it is immediately opposite a police station; and he knew that the robbery would take place in broad daylight. He nevertheless participated in the robbery, helping to subdue some of the victims. The State has consequently proved the necessary mens rea in the form of dolus eventualis beyond reasonable doubt.

e)    S v Molimi and another[7] the court held:

“[29] I turn to deal with counts 3, 4 and 7. The appellants submit that the sequence of events commencing with accused 1 taking a hostage and culminating in the death of the hostage and injury to the employee from the bystander's gunshots was not foreseeably part of the common purpose. They should, accordingly, have been acquitted on these counts.

…

[34] The evidence shows that the first appellant initiated and then planned the robbery in collaboration with the second appellant and accused 1. It was foreseeable that, in the execution of the robbery and during the flight of accused 1 and his fellow robbers, firearms might be used to overcome any resistance that they encountered.

They reconciled themselves to this possibility. Their conviction for the murder of the security guard on this basis is therefore uncontroversial.

[35] As uncontentious, in my view, is the conviction for the attempted murder of the employee (count 4). The fact that resistance to the escape arose from the actions of a private citizen is not, as  counsel tried to persuade us otherwise, of any consequence. Nor is the fact that, at the time the bystander fired his first shot injuring the employee, he was under no legal duty to stop the fleeing robbers. Once all the participants in the common purpose foresaw the possibility that anybody in the immediate vicinity of the scene could be killed by  cross-fire, whether from a law-enforcement official or a private citizen, which in the circumstances of this case they must have done, dolus eventualis was proved.21

[36] But the taking of the hostage by accused 1 falls into a different category. It is probable that at the time he took the  hostage, his co-robbers had escaped through the exit of the shopping complex. He was therefore on his own when he took the hostage while seeking refuge from the man who was pursuing him. By taking a hostage he had, in my view, embarked on a frolic of his own. These actions could hardly have been foreseeable by the other participants in the common purpose. To hold otherwise, as the Court a quo did, would render the concept of foreseeability so dangerously elastic as to deprive it of any utility. To put it another way, the common purpose doctrine does not require each participant to know or foresee every detail of the way in which the unlawful result is brought about.

But neither does it require each participant to anticipate every unlawful act in which each of the participants may conceivably engage in pursuit of the objectives of the common purpose. It is apparent that the unlawful act of hostage- taking by accused 1, in the circumstances of this case, was so unusual and so far removed from what was foreseeable in the execution of the common purpose that it cannot be imputed to the appellants. The convictions relating to the kidnapping and murder of  the hostage (counts 7 and 3) can therefore not stand.”

f)     In this matter it is evident:

i)             That the accused had planned to rob the complainant;

ii)            Robbery with aggravating circumstances in this case was the use of the firearm loaded or unloaded;

iii)           There was an intention to take more “soldate”;

iv)           The use of the word soldier also has the connotation of someone that is armed;

v)            At least one firearm was taken to the scene. Nowhere was it stated that the firearm to be taken was to be an unloaded one and clearly the intention of taking a firearm creates the impression that is loaded and intended to be used if necessary.

vi)           Accused 2 had specifically enquired about an alarm system when asking Botha about the house and Botha replied that he had not checked and did not know.

vii)          Accordingly there must have been an awareness of the possibility of an alarm system and security measures being in place yet they continued with the execution of their plan to rob the complainant, despite the possibility that she had an alarm system and could summon assistance.

viii)        Mr Khubashe, the security officer stated that the deceased lifted the firearm and pointed it in his direction and it was then that he started shooting.

ix)           He believed that the deceased was armed and dangerous and this was the impression intended to be conveyed by the perpetrators, in pointing a firearm.

x)            They must have foreseen that whether or not this was factually correct, that the likelihood existed that there would be an armed response and were reckless as to that possibility materializing. It is absurd to suggest that a person being faced with a firearm being pointed at him would stop to ask is it loaded or unloaded prior to shooting in defence of himself or others. The robbers must have foreseen that the presence of the firearm would solicit armed resistance.

xi)           Ryno De Brugge the officer that apprehended the Appellant in fact stated that he found a revolver under the Appellant when he caused him to roll over and that he had left the revolver there for the forensic team to recover.

xii)          Frieselaar, photographed a revolver which had been found in the place where the Appellant was hiding and confirmed that there was no ammunition in this firearm when he checked it.

xiii)        According to Botha, accused 2 had acquired a firearm and had taken it with him.

xiv)        Accused 1, the Appellant herein in fact in his testimony, which although it  was correctly rejected, but for purposes of considering the issue of intention might well have a bearing on the defence he now seeks to raise with regard to intention to show how improbable his current argument is even on the false version he had presented.

a)                  That he was aware that the deceased had a firearm (although he says it was given to the deceased by the section 204  witness, Botha in the vehicle;

b)                  Was aware that the deceased had the gun when they went into the house;

c)                  Only became aware at a later stage that the firearm did not have bullets, he does not say when or how he became aware of this fact but it appears even from his own testimoney that he did not know this at the material time of the shootout.

d)                  He stated that he upon his return from relieving himself saw that the deceased had tied up the complainant and that he could not help her because the deceased had a gun and he did not help or attempt to stop the deceased because he did not know what he was capable of doing to him.

xv)         If the Appellant had an expectation, even on his version that the deceased was capable of harming him with the gun, how can he now seek to advance an argument that any other person unknown to the deceased should not be expected to likewise be afraid of a person with a gun and respond to the presence of a firearm by defending himself by using his firearm.

xvi)        The appellant even on his own version went into this house with a person who he knew to be in possession of a firearm which he did not know was unarmed at the relevant time on his version.

xvii)       He nonetheless proceeded with this person into the house. He did not simply leave when he saw the deceased having tied the complainant and pointing a firearm at her, he remained there, on his version until the shootout.

xviii)      The appellant must have foreseen in the circumstances and therefore did foresee the possibility that resistance to the robbery may result in an exchange of gunfire and that either of one of their number,  the complainant or other persons resisting the execution of the robbery may be shot or fatally injured in the process of the robbery. He must have also foreseen the possibility that the mere presence of the firearm and the pointing there of would have elicited shots being fired by an armed guard.

xix)        It is in any event unclear whether the firearm was loaded or unloaded at the relevant time or whether or not the firearm found on Appellant was the same firearm the deceased used or whether that was discarded or hidden or whether the bullets were discarded.

xx)         A finding of fact or even probability cannot be made that is favourable to the Appellant in his regard having regard to the number of variables. In any event they chose to go with a firearm and wield it. They accordingly must have foreseen that the mere presence of a firearm would invoke an armed response and were reckless as to this possibility materializing even in accepting that the firearm was unloaded dolus eventualis is established.

xxi)        Even with a so-called soft target as the court a quo rightly found the complainant would have an alarm system and it must have been foreseen that she would elicit assistance if possible and that would elicit an armed response so even in that scenario dolus eventulais is established since they were reckless as to that consequence materialising and proceeded with their plan to rob.

xxii)       They most certainly could not rule out the possibility of resistance taking the form of an armed security guard responding to an alarm being triggered and even with the element of a surprise sudden attack.

g)    The learned judge correctly found that the facts establish the common purpose to execute a robbery with aggravating circumstances subsisting in the use of a firearm.

h)    He further found that

“Each of the perpetrators clearly associated themselves with the violence or threat of violence represented by the pointing of the firearm in the possession of the deceased. The learned judge correctly stated that it hardly lies in the mouth of a house robber to claim not to anticipate effective security arrangement put in place by homeowners against the scroge of house robbery.

Common sense suggests that the persons who take a firearm to the execution of a robbery anticipate that it may be used or that its presence, are detected, may elicit the use of commensurate defensive violence.”

He accordingly found that the facts established not only that the accused ought to have reasonably foreseen the possibility that their unlawful and criminal act would elicit resistance but that they did so. Foresaw the possibility and proceeded reckless as to the consequences of that foresight.”

i)     There is no other reasonable inference save the one drawn by the court a quo in this case.

j)     The court a quo fully considered the evidence presented and the facts of this case and correctly found that the state had established the guilt of the accused beyond a reasonable doubt in that it had proven the necessary mens rea in the form of dolus eventualis or dolus indeterminatus.

k)    It is clear that they foresaw resistance and must have foreseen that someone could be shot and killed during the possible shootout in the event of armed resistance and nonetheless proceeded with the robbery reckless as to the outcome.

l)     In the circumstances the appeal falls to be dismissed and the conviction of the Appellant in respect of the murder count 4 is confirmed.

6.    ORDER

a)    The Appeal is dismissed.

________________

F. B. A. DAWOOD

JUDGE OF THE HIGH COURT

I AGREE:

_________________

N. G. BESHE

JUDGE OF THE HIGH COURT

I AGREE:

__________________

V. MSIWA

ACTING JUDGE OF THE HIGH COURT

DATE HEARD:                                         29 OCTOBER 2018

DATE HANDED DOWN:                          05 FEBUARY 2019

FOR THE APPELLANTS’:                       Mr J Van Der Spuy

APPELLANTS’ ATTORNEY:                    PORT ELIZABETH

                                                                JUSTICE CENTRE

                                                                136 CAPE ROAD

                                                                EASTERN CAPE

                                                                Tel:      041 373 8296

FOR THE RESPONDENT:                       Mr M Stander

RESPONDENT’S ATTORNEYS:              THE DIRECTOR OF

                                                                  PUBLIC PROSECUTIONS

                                                                 1 TRINDER STREET

                                                                  PORT ELIZABETH

                                                                  Tel:      041 502 1437

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