IN THE HIGH COURT OF SOUTH AFRICA
                               (BOPHUTHATSWANA PROVINCIAL DIVISION)

                                                                                           CASE NO : 64/99

In the matter between:

THE STATE 

AND

AUBREY SEUNTJIE NDLOVU AND THREE OTHERS

JUDGE : NKABINDE AJ

MMABATHO

DATE OF JUDGMENT         : 29 SEPTEMBER 1999
FOR THE STATE               : G.S MAEMA
FOR THE DEFENCE           : M. BOTHA

NKABINDE AJ:   The four accused in this matter stand charged with murder.  They all pleaded not guilty to the charge.  Mr Botha, who represented all the accused, confirmed that the pleas are in accordance with his instructions.  In so far as the plea explanations in terms of s. 115 of the Criminal Code are concerned, the accused  raised bare denials.

The trial is a sequel of a fight that erupted on the night of 04 July 1998 at a tavern in the district of Taung.  The victim in this matter is a young man namely: Alone Fitzgerald Mothlabane (“the deceased”), aged approximately 20 years.

Having pleaded not guilty, the accused made admissions regarding:-

(a)	the report on the medico-legal post mortem examination(Exhibit “B”) in terms of which the deceased died as a result of two stab wounds in the aorta;
(b)	the identity of the deceased;
(c)	that the deceased died on 04 July 1998 as a result of the said stab wounds;
(d)	that the deceased sustained no other further injuries from the time  he sustained the injuries up until the examination  was performed;
(e)	that the findings on Exhibit B by Dr A J Coetzee are true and correct; and
(f)	a bundle of documents comprising of  photographs,  affidavit by Sergeant M I Tshipo and the key to the photographs.

For convenience and ease of reference, I shall refer to accused 1 as Aubrey, 2 as Themba, 3 as Eric and  4 as Michael.

The State called Sergeant Mothusimang Jafta Kgwanyape to testify.  He did not witness the fatal stabbing but visited the scene of the crime. He also identified the deceased at the State mortuary as the person who was stabbed at the tavern. Having been informed by Oupa Coetzee and other people gathered at the hospital about  the suspects and where such persons lived, he  was directed by Oupa to the place where the accused Aubrey and Michael were found.  He  arrested them and upon arrest he observed blood on Aubrey’s  trouser.  He was cross-examined about the personal possessions which he had taken from Aubrey and Michael and about the assaults.  He explained why the personal possessions of the accused were taken from them before they were taken to the cells.  He denied having assaulted any of the accused.

Lesibane Antony Mokhabela testified.  The crux of his testimony is that on the day in question he was  drinking liquor with his friends at Frank’s tavern.  He went outside and saw Othusitse and one G standing outside, holding hands.  He saw Aubrey approaching them and dragging Galaletsang. Othusitse pushed him away then Aubrey slapped Othusitse with open hands.  A fight ensued and whilst fighting the deceased intervened.  Othusitse then left.  Aubrey produced a knife and stabbed the deceased.  Then Themba, Eric and Michael advanced.  They tried to trip the deceased. Ultimately the deceased fell down.  Themba  stabbed the deceased whilst the deceased was lying down and thereafter Themba, Eric and Michael kicked the deceased.  Oupa emerged and took the deceased into the tavern and thereafter the deceased was taken to the hospital. At that stage all accused had entered the tavern.  Aubrey told the people inside that no one is going to leave.  Whilst inside the tavern Themba opened the door and he (Lesibane) escaped to Frank’s main house. He testified further that he witnessed the fight outside the tavern because he was leaning against the wall at the corner of the tavern, a distance of ±15 paces from where Othusitse and Gwere standing.  He was steadfast that the deceased was unarmed.  He testified further that he saw blood on Aubrey’s pants.  He had consumed liquor but the liquor had no effect on him.  He explained that visibility was clear because an electric light at the entrance of the tavern was on.

Under cross-examination he said he was just standing at the corner and was not leaning against the wall when Themba, Eric and Michael joined in the assault. At that stage Othusitse had gone to the toilet.  He  met Othusitse on his way from the toilet and had a short discussion with him.  Thereafter Othusitse went inside the tavern.

The evidence of G O T, a 14 year old girl who was in std 8 came to the following: On the night in question she was at the tavern.  On arrival at the tavern she found Aubrey and his friends there.  After a while she went outside the tavern and met Othusitse there.  They stood outside holding hands. Aubrey approached them and asked to speak to her.  She asked Othusitse to help because she did not want to talk to Aubrey.  She testified that at that stage, Aubrey  struck Othusitse on the chest.  She then told Othusitse that they must move away from Aubrey.  Othusitse  went to direction of the tavern.  Aubrey followed him and at that stage she left.

Under cross-examination she was referred to her statement in which she had stated to the police that Aubrey had said that she was his girlfriend.  She had not mentioned this in her evidence in chief. When asked about the omission she said that she did not have an answer.  She had mentioned to the police further that Aubrey had struck Othusitse twice. Yet in her evidence in chief she only referred to one instance.  She denied that Aubrey dragged her and that Othusitse pushed Aubrey.

The fourth witness was Victor Othusitse Motlhwaring.  On the night in question he was also at Frank’s tavern at approximately 20h30.  He saw the deceased standing with G who is his niece.  He joined them.  He testified that the place where they were standing was illuminated.  After a while, the deceased left him in the company of G.  Aubrey  approached them and asked to speak to G whom he (Aubrey) said was his girlfriend.  Then for no apparent reason Aubrey slapped him with open hands and without retaliating he left towards the tavern leaving G behind.  Then Aubrey called his name. He stood there hoping that Aubrey was coming to apologise but when (he) Aubrey approached  him he attacked him with fists.  The deceased intervened.  At that stage he went to the toilet.  On his way back from the toilet, he saw the deceased holding his shoulder and was staggering.  Aubrey was holding a knife in a stabbing position.  Then Themba, Eric and Michael advanced and kicked the deceased.  Othusitse testified that although Themba  had opened his knife he did not see him stabbing the deceased.  

Under cross-examination he testified that the deceased did not intervene when he was with G.  He further testified that he was standing next to a globe which was mounted onto the wall at the entrance of the tavern.  He never spoke to Anthony when he returned from the toilet.  When questioned about the omissions in his statement to the police, he testified that when he made the statement on 5 July 1998 he was still under  shock of the events of the previous night.  He explained that he neither bore a grudge against any of the accused nor befriended any one of them.

The next witness to testify was Oupa Ralph Coetzee.  He testified that he is a relative to Aubrey.  He was at the tavern on the night in question.  He arrived at the tavern for the second time when he saw Aubrey standing with G. There were other people standing next to them.  Without paying attention to what these  people were doing he proceeded into the tavern, and whilst inside the tavern, the deceased came  being chased by Aubrey.  The deceased was staggering and was holding his neck.  At that stage Aubrey was holding a knife in a stabbing position and the knife was full of blood. Aubrey’s clothes were bloodstained.  Then Aubrey stabbed the deceased on the shoulder and people ran out of the tavern.  The deceased was carried to the hospital.  He testified that the police approached him whilst at the hospital.  He volunteered to direct the police to where  Aubrey lived.  Having directed the police to where Aubrey was, the police arrested  him and Michael at that place.

Under cross-examination he was questioned about the statement he had made to the police on 18 March 1999.  In that statement Oupa stated that when he returned for the second time, he saw Aubrey holding a knife and chasing the deceased.  At that stage the deceased was full of blood and he fell down at the door. I may remark that this statement was taken approximately 8 months after the incident.  About the discrepancies between the contents of Exhibit “G” and his testimony in court he testified that he could have made a mistake because he was under shock and was under the influence of liquor.

The next witness called by the State was Frank Ogopoleng Modisamongwe, the owner of the tavern.   He testified that  he did not drink liquor.  He briefly described the layout of his premises. He corroborated the evidence of Othusitse and Lesibane that the place was illuminated. When the fight started he was inside the garage which is situated a few paces from the tavern.  He received a report about a fight which was taking place at the tavern.  He rushed towards the tavern and when approaching the tavern door, he me  Lesibane and other people holding Aubrey.  Aubrey told him that he had been stabbed on the thigh and he broke loose from those people and entered the tavern.  Aubrey was holding a knife when he entered the tavern. Eric  approached him with a big knife and told him that  no one is going to enter the tavern.  When Aubrey came out of the tavern, he was screaming, saying he wants to stab and finish him( Frank).  He fled and Aubrey gave chase.  He later contacted the police but when the police arrived, the deceased had already been taken to the hospital.  He did not see Themba and  Michael that night.  

At the close of the State’s case Mr Botha applied for the discharge of Themba, Eric  and Michael in terms of s. 174 of the criminal code.  The application for the discharge was dismissed on the basis that the state had proved a prima facie case against the accused.

Aubrey Seuntjie Ndlovu testified.  He testified that on the day in question he was at the tavern, at about 19h00, in the company of Themba, Eric and Michael.  They were sitting inside the tavern.  He went outside and met Galaletsang.  When he requested to speak to Galaletsang, Othusitse slabbed him on the cheek.  A fight ensued and Oupa intervened.  The deceased advanced.  Oupa reprimanded the deceased and a fight ensued between Oupa and the deceased.  Themba came and told him that they must go home as Oupa has started his things.  Themba went into the tavern to call Eric and Michael and thereafter they left.   Whilst sleeping, himself and Michael were woken by the police  and were arrested.  The police took them to the veld and assaulted them.  They were assaulted further at the charge office by many police officers who took their personal belongings.

Under cross-examination he testified that Oupa was drinking castle beer in the tavern.  He evasively testified that he did not sustain an injury but saw an injury on his thigh when he arrived at home.   I may remark at this stage that the scar of the wound Aubrey sustained clearly shows that the injury was a serious one.   He denied having told Frank about the injury but could not advance any reason how Frank came to know that he was injured.  He testified further under cross-examination that he did not consume any liquor on that day and that  the area outside the tavern was not well illuminated.  When fighting with Othusitse the area was dark and when the deceased fought with Oupa, he could not see Oupa properly. Aubrey did not mention this in his evidence in chief.  He testified that the crowd of people who came after police’s arrival shouted that he (Aubrey) is the one who killed the deceased.  However,  he could not advance any explanation why so many people could falsely implicate him.  

In re-examination he testified that Oupa lied about him because he once falsely  implicated him in the commission of an crime.   This was manifestly new evidence which was not put of Oupa.

Themba testified that on the night in question he was in the company of Aubrey, Eric and Michael.  They were drinking soft drinks whilst Oupa was drinking beer.  Aubrey went out.  He remained inside the tavern.  After a while, he realised that it was time for him to go home.  Without telling his companions inside the tavern, he went outside to look for Aubrey.  He then saw Oupa fighting with an unknown person.  He found Aubrey in the company of Galaletsang.  He told Aubrey that they must go home because it was time to go home and thereafter he went into the tavern to call Eric and Michael.  In response to a leading question whether he mentioned anything to Aubrey about Oupa he replied that he told Aubrey that  Oupa is busy fighting and he knows what type of a person he is.

Under cross-examination he testified that Oupa was once his friend but on the night in question  he was no longer his friend. There was not bad blood between himself and Oupa.  He then changed and said that they were not in good terms. All these were not put to Oupa and a matter for surprise is that he was sitting with Oupa at the same table.  He testified that he had stated to the police that he was drinking liquor because the police forced him to say that.  The police forced him to say that Aubrey stabbed the deceased.  He explained further that the police officer promised to pay bail for him if he could implicate Aubrey.  Having been so assaulted to make a statement he told the police about the liquor.  He could not offer any explanation why he explained about the liquor omitted to explain that Aubrey killed the deceased as he was told to say.  He contradicted himself about the reason why he left. He testified further under cross-examination that there was bad blood between himself and Lesibane because he had assaulted him a week before the incident.  I may remark that this evidence was not put to Lesibane.

Eric Kereng Khotlele  was called to testify.  His testimony is similar to Themba’s evidence.  When he left the tavern he  did not witness any fight.  He was arrested on 5 July 1998.  He was in the same cell with Themba and was  assaulted on Sunday night.  They were taken to the charge office and were assaulted by the police.  He testified that because he was assaulted he falsely  implicated Aubrey.  On Monday he appeared before a magistrate but  did not report the assaults to him.

Under cross-examination he conceded having made a statement to the police.  He testified that they were all assaulted by the police to implicate themselves in the presence of Inspector Tapo.   He preferred to lie about being in the garage and finding somebody lying on the ground to exonerate himself.

He testified further under cross-examination that he reported the assault to his family members when they visited him on Saturday, the night of the incident.  It was, however  put to Inspector Kgwanyape that his family visited him the next day after his arrest.  The court has taken judicial notice that the 4th day of July 1998, when the incident took place, fell on a Saturday.  Meaning that his parents could only have visited him on Sunday, on the same day he was allegedly assaulted.

Michael Gaolatlhe Gaboutlwele (“Michael”) testified.  I will not deal with his evidence in detail except where he does not corroborates Eric.  He testified that when himself and Aubrey arrived at home he observed blood on Aubrey’s trouser.  Aubrey could not say where the blood was coming from.  When the police arrested them that evening, they took them to the veld and assaulted them there.  They were assaulted again in the presence of Inspector Tapo at the charge office in order to make statements. As a result of the assault he sustained a visible injury on the mouth.

Under cross-examination Michael testified that Aubrey had reported to the magistrate at their first appearance on Monday, 6 July 1998, that they had been assaulted but the magistrate kept a deaf ear.  It is remarkable that despite the serious assault on 5 July 1998, the magistrate did not see and/or remark about the visibly swollen mouth of Michael.  It bears mentioning further that no recording of such reports and/or assaults appears on the records of  the  proceedings.  Michael could not explain how Inspector Tapo correctly wrote all the things that were said to have taken place at the tavern.  He testified further that himself and Aubrey had reported the assaults to one Captain but when questioned further about this he changed and said it was himself alone who made a report to the Captain.

The defence closed its case.

In his address Mr Maema submitted, correctly in my view, that the two points in issue are - firstly, whether or not the accused assaulted the deceased; and secondly whether or not the State has proved common purpose.   He argued that the corroborated evidence by the State manifestly points that the four accused each played an active role in assaulting the deceased.  He argued further that because of such active association, the State has established common purpose.

Mr Botha who represented the four accused, argued that the State case was fraught with material contradictions and improbabilities. He argued that the State has not succeeded in establishing common purpose and that Themba, Eric and Michael merely joined in.

The practical approach to determine the said issues is to look at all the facts before the court.  No onus lies on the accused to prove their innocence.  The test is whether there is a reasonable possibility of the accused stories being possibly true.  In applying this test the court does not have to believe the accused stories still less has it to believe them in all their details.  It is sufficient if the court is of the view that there is a reasonable possibility that the stories may be substantially true.  (See R v M 1946 AD 1023 at 1023 at 1027 and R v Difford 1937 AD 370 at 373).

I must consider, not only the merits and demerits of the State and the defence witnesses but also the probabilities of the case.  I must properly evaluate and arrange the facts before me to determine whether the alleged proof goes beyond reasonable doubt or whether it falls short and thus falls within the area of a reasonable alternative hypothesis, if any.

The following facts are common cause:

a)	All four accused were at the tavern on the night in question.
b)	Aubrey approached Goutside the tavern;
c)	An altercation ensued between Aubrey and Othusitse;
d)	The deceased appeared in the picture;
e)	The deceased died as a result of two stab wounds in the aorta which wounds stretches onto the chest.  The wounds on the neck were serious.
f)	The accused admitted the identity of the deceased, the cause of death being that of two stab wounds in the aorta, that the deceased sustained no further injuries up until the examination was conducted in him and that the contents of the report by Dr Coetzee were true and correct.

There is much corroboration in the State case.  I shall refer to but a few instances:

g)	Gand Othusitse were standing outside the tavern holding hands.  This is manifest from the evidence of Galaletsang, Othusitse and Lesibane;
h)	Aubrey approached Galaletsang: This is corroborated by Gand Othusitse;
i)	Lesibane saw Aubrey slapping Othusitse with open hands: Othusitse and Gconfirmed this;
j)	According to Lesibane the deceased then intervened: this was corroborated by Othusitse;
k)	Lesibane testified that Aubrey stabbed the deceased with a knife: Although Othusitse did not witness the actual stabbing when he returned from the toilet he saw Aubrey  holding a knife in a stabbing position and the deceased  was  holding onto his shoulder and was staggering;
l)	Lesibane testified that  all accused had knives in their possession.  Othusitse confirmed that  Michael, Aubrey, Eric and Themba had knives in their possessions;
m)	Lesibane observed from inside the tavern that the door was closed and exist was prevented by Aubrey. Frank observed from outside that the door was closed and Eric prevent him from gaining entry; 
n)	Lesibane and Othusitse testified that the deceased was not armed. Aubrey corroborated them under cross-examination.

I now turn to evaluate the evidence before the court.

Inspector Kgwanyape was a credible and reliable witness.  He was criticized on the question of  assaults and removal of the accused’s personal belongings.  I find no basis for the criticism with regard to the alleged assaults: Inspector Tapo who took the statement was allegedly present during the assault but was never called to testify.  Again, there was no mention of assaults in the accused’s statements and in the record of the proceedings.  Certainly, if Michael’s mouth was as swollen as he alleged, not only inspector Tapo but the magistrate  could have made a note thereof.  As far as the accused’s personal belongings are concerned, Inspector Kgwanyape  gave  a good and acceptable reason why such items were removed from the accused before they were taken to the cells.

  Lesibane contradicted himself on certain aspects, inter alia  that he met Othusitse on his way from the toilet, had a discussion with him and that Othusitse proceeded to the tavern when he came from the toilet. Bearing in mind that one is dealing with a  mobile scene, Lesibane might have made an honest mistake.  The mistake cannot, in my view, be seen as a fabrication on his part.  I am satisfied that he was a credible and reliable witness.
 
Othusitse was a reliable and credible witness who as to demeanor made a good impression upon me.  He did not contradict himself or embellish his evidence. He was not evasive.  He was criticized for his incomplete statement to the police.  I may remark that the incomplete statement was made a day after the incident.  His explanation was that he was still shocked when he made a statement.  I find nothing in his testimony which is indicative of a fabrication on his part.

Oupa did not make a good impression upon me.  He was indeed shaken.  I will only rely on portions of his testimony which are corroborated by other State witnesses.

The last witness for the State was Frank.  He did not witness the  stabbing.  He did not contradict himself in any way.  His statement to the police is similar to what he testified about in court.  He was indeed a credible and reliable witness.

The accused have all raised bare denials.   The State evidence against all the accused is overwhelming.  To begin with, there can be no doubt that all the accused were at the tavern that night, and manifest from the accused testimonies, they moved as a group.  They have all made statements to the police.  Under cross-examination they all testified that they were assaulted to make the statements to the police about the incident at the tavern.  Under cross-examination Michael could not advance a  good and acceptable reason where Inspector Tapo obtained the information from if he was lying because he was not at the tavern.  As to Eric, he conceded having made a statement to the police.  He also testified that the police assaulted them to make statements and to implicate Aubrey.  What is surprising is that he did not implicate Aubrey but he lied about a totally different matter which could not exonerate him.  As far as Themba is concerned his evidence as to why he went outside and the reason for leaving are highly improbable and false.  He  contradicted himself as to why he decided to go home.  Under cross-examination he testified that there was no bad blood between himself and Oupa.  He later changed and testified that himself and Oupa were not on good terms  that night because Oupa had once lied about him.  To one’s surprise he sat around the table drinking with Oupa.  It is also noteworthy that all these were not put to Oupa.   Similarly, he testified under cross-examination that he was assaulted by the police to make statement to the effect that he drank liquor at the tavern and that Aubrey stabbed the deceased.  He does not advance any explanation why he stated to the police that he drank liquor and failed to implicate Aubrey when he was assaulted in order to do so.

As to the allegation of assaults by the police in order to make statements and all other improbabilities in the defence case, the mass of the State evidence against the accused is so weighty that the allegations of assault and the denial of their involvement in the murder must be seen as being highly improbable and false beyond reasonable doubt.

 The next question is whether the State has proved common purpose.  The principles dealing with common purpose are delineated in a number of cases.  I do not need to elaborate the principles in great detail.  Suffice it to state that it is trite law that it is  not necessary for the prosecution to prove beyond reasonable doubt that each participant committed conduct which causally contributed to the ultimate unlawful consequence.  It is sufficient that it is established that all the accused agreed to commit a particular crime or actively associated themselves with the commission of the crime by one of their number with the requisite fault element.  If this is established, then the conduct of the participants who actually causes the consequence is imputed or attributed to the other participants.

Botha JA in S v Mgedezi and others 1989 (1) SA 687 (A) states that in the absence of proof of prior agreement there are certain requirements that should be satisfied before the acts of the accused can be imputed to another.  The  requirements are as follows:

“ Firstly, he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of the assault. Thirdly, he must have intended to make common purpose with those who were actually perpetrating the assault. Fourthly, he must have 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.  Fifthly, he must have had the requisite  mens rea; so, in respect of the killing of the deceased, he must have intended them to be killed, or he must have foreseen the possibility of  their being killed and performed his own act  of association with recklessness as to whether or not death was to ensue.”.                                                                              (At 705J - 706 A-G).

Both counsel have conceded that there was no prior agreement.  Mr Maema argued that because all other accused were at all times present and also participated actively in the murderous attack albeit after the fatal blows were inflicted, they should be convicted of murder on the basis of common purpose.  There is evidence to  the effect that Aubrey stabbed the deceased and when he stabbed him, the other accused were in the vicinity.  Immediately thereafter, Themba, Eric and Michael tripped the staggering deceased.  After the deceased had fallen down, Themba stabbed him and thereafter himself  Eric and Michael kicked the deceased when he was already on the ground. Othusitse did not witness the stabbing but just before the accused fell down, he saw Aubrey holding a knife in a stabbing position and at that stage the deceased was holding the injured shoulder and was staggering.  He saw Themba, Eric and Michael kicking the deceased.  Othusitse did not see Themba stabbing the deceased.  He testified however that he saw him holding a knife in a stabbing position when the deceased was staggering and holding his injured shoulder.  Oupa saw Aubrey holding a blood stained knife in a stabbing position and his clothes were blood stained.  Frank saw Aubrey, entering the tavern and was holding a knife.  There is no doubt that after Aubrey had fatally stabbed the deceased, the deceased was still alive and was still standing up.  Themba inflicted another fatal blow.

The next question is whether or not Eric and Michael joined in with the intention of killing the deceased when they kicked him after the blows had already been inflicted.  Mr Botha argues that the State has not proved beyond reasonable doubt that they had intended  the deceased to be killed or that they foresaw the possibility of him being killed.  He argued that the State had failed to establish the 5th requirements in the Mqedezi’s case, above..

When examining the basis on which liability of persons involved in a commission of a crime may be founded, and having carefully scrutinised the facts before me, I cannot conclude that the accused, can be found liable on the theory of participation, either as perpetrators or as accomplices as was expounded and accepted in S v Williams 1980 (1) SA 60 (A). It seems to me that the liability of the accused may be founded on the doctrine of common purpose.  But for the purpose of this judgment and as submitted, correctly in my view, by Mr Botha, it is necessary to consider the significance and effect of the decision of the Court in the afore discussed case of S v Motaung and others 1990 (4) SA 485 (Supra) in which Hoexter JA quoted the words of Prof Whiting with regard to issues of ‘joiner-in’, that:

“...the essence of the problem is not whether one can be guilty of murder where one’s only association with the killing is non-causal in nature, but whether one can be guilty of murder where such non-causal association arises only after all the acts contributing to the victim’s death have already been committed.”.                                                 (At 520D).

The learned judge differed with the views expressed by Schreiner JA (as he then was) in S v Khosa and by Botha AJA in the earlier decisions on this aspects that it is unnecessary to distinguish between participation in a common purpose to kill which begins before the deceased has been fatally wounded and such participation which begins thereafter but while the deceased is still alive.  He once more quoted Whiting (op cit at 49) stating that:

“ Although the crime of murder is of course not complete until the victim dies, liability  for the victim’s death depends on responsibility for conduct which had caused it.  While such responsibility need not always arise directly-simply from the fact that it is the accused’s own conduct-but may also arise indirectly or mediately-through the attribution to the accused in terms of the doctrine of the common purpose of the conduct of some other person or persons-the vital point remains that an accused cannot be guilty of murder unless he bears responsibility for the conduct which has caused the victim’s death.  Thus, to hold an accused liable for murder on the basis of an association with the crime only after all the acts contributing to the victim’s death have already been committed would involve holding him responsible ex post facto for such acts.  The criminal law is firmly opposed to liability based on ex post facto or retrospective  responsibility and does not recognise it in any other situation.  It would therefore be contrary to accepted principle to recognise it here.”.                                            (At 520 H-I). 

On a proper consideration of the facts in the instant case, it seems to me that the views expressed by Hoexter JA in Motaung’s case is to be preferred.

I now turn to deal with each accused’s act of participation.  Themba inflicted a  fatal second blow on the deceased.  There is no doubt that he joined in the violence by inflicting a fatal blow whilst the deceased was still alive.  He, together with Eric and Michael, tripped him and thereafter kicked him whilst lying on the ground.  In acting in the manner he did, Themba certainly harboured an intention to kill the deceased.
I have no doubt that his conduct causally contributed to the deceased’s death.  He has actively acceded to Aubrey’s common design.

What merits separate consideration is whether there is sufficient evidence to sustain, as the only reasonable inference, that Eric and Michael likewise acceded to Aubrey’s common design.  This is so because the two were allegedly armed with knives but did not stab the deceased.  They merely tripped him and thereafter kicked him whilst lying on the ground.  Mr Botha argued, that if they had intended to kill him, they could have stabbed him.  The State was content to rest its case on the admitted fact that the cause of death was stab wounds on the aorta.  As a result no evidence directly relevant to the doctor’s findings was led by the State or on behalf of the accused.    Although there is no direct evidence that the second fatal blow was inflicted by Themba, the evidence available does not exclude the reasonable possibility that his conduct causally led to the death of the deceased.   To hold Eric and Michael liable for murder means that they would incur liability ex post facto as expounded by Prof Whiting (Supra).   Prof  L Kok in his discussion “Konflik tussen deelneming en poging by gevolgsmisdade” (1985) 9 SACC 56, holds the view that the “joiner-in” commits a typical act of attempt and that he ought to be guilty of attempted murder.  This view is supported further by Prof M C Mare in his discussion  “The liability of the ‘joiner-in’ for murder” SACJ (1990) 1 SAS 23.  

It does not seem to me that there is a definite ratio decision by the Appellate Division that the “joiner-in” can incur liability in terms of the doctrine of common purpose.

In R v Mgxwiti 1954 (1) SA 370 (A) the Appellate Division relied on common purpose to convict the “joiner-in” of murder.  Schreiner JA, as he then was, held that it makes no difference to a person’s liability whether he joins the attack on the victim after the victim has already been mortally wounded and whether he joins before the victim has been wounded (At 382 E-F).   The learned judge was of the view that in such circumstances and in accordance with the doctrine of common purpose, a person is responsible for the injuries which have already been inflicted and that the principle of ratification can have limited application (At 382 H - 383 B). 

In  S v Thomo 1969 (1) SA 385 (A) the court rejected Mgxwiti’s approach and convicted the fourth accused, who had joined-in, of attempted murder.  In Thomo’s case the fourth accused joined-in after the deceased had been mortally assaulted.  As is the position in the instant case, evidence was lacking that fourth accused’s action caused the death of the deceased or contributed causally thereto.  The court in Thomo’s case rejected the principle ratification.  The court also held that the act of the “joiner-in” in Thomo’s case had been an independent venture.

In S v Khoza 1982 (3) SA 1019 (A) Botha AJA (as he then was) and Corbett JA (as he then was) in their respective minority judgments, considered the liability of the “joiner-in” in terms of the doctrine of common purpose.  Corbett JA held that in order to impute the act of a perpertrator to another person on the ground of common purpose it is, in general, necessary that the latter should have acceded to the common purpose before the act, i.e the causing of death, was committed.  He cannot be convicted in terms of the doctrine. Botha AJA, on the other hand, held that the joiner-in may be guilty in accordance with the doctrine.  The learned judge stated that proof of causal connection between the act of an accused and the death of the deceased is not in all circumstances a prerequisite for a conviction of murder.  This finding, supporting Mgxwiti’s decision, was confirmed in S v Sefatsa 1988 (1) SA 868 (A).

In the instant case, Eric and Michael tripped and kicked the deceased.  It seems to me that although the fatal blows had already been inflicted, the deceased was still alive at that time.  Evidence is lacking however that Eric and Michael’s action did contribute to the cause of death of the deceased.   Both Eric and Michael were armed with knives but did not stab the deceased.  In my judgment, they should be found guilty of attempted murder.

In the result, I find Accused  1 and 2 guilty of murder with direct intent and Accused  3 and 4 guilty of attempted murder.

B E NKABINDE
ACTING JUDGE OF THE HIGH COURT

29 SEPTEMBER 1999