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[1984] ZASCA 121
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S v Shange and Others (431/83) [1984] ZASCA 121 (28 September 1984)
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431/83
B.R. SHANGE & OTHERS
and
THE STATE
JANSEN JA :-
Case no.431/83. M C
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
BONGOMUZI RUFUS SHANGE First Appellant
(Accused no 1 in court a quo
THEMBA MAJOLA Second Appellant
(Accused no 2 in court a quo
MAGXALABA DLAMINI Third Appellant
(Accused no 3 in court a quo
- and -
THE STATE Respondent
Coram: JANSEN, VAN HEERDEN JJA et
ELOFF AJA.
Heard: 15 August 1984.
Delivered: 28 September
1984
JUDGMENT
JANSEN JA:-
On /
2. On 30 March 1983 an attempted robbery occurred at Black Store,
Highflats, Natal; the manager of the store, Ramraj Singh, was shot
twice and
died of his wounds. Subsequently the three appellants were convicted by LAW J
and assessors, on circuit at Scottburgh,
of the attempted robbery and murder of
the deceased. No extenuating circumstances were found in respect of the murder
and the appellants
were all sentenced to death; for the attempted robbery they
were sentenced to im= prisonment of 14, 16 and 12 years respectively.
By leave
of the court a quo the appellants appeal against their convictions of
murder and sentences of death. The findings of fact by the court a quo in
respect / . ..
3.
respect of the attempted robbery must be accepted
in the
absence of an appeal in this regard. On the
day in question the three
appellants set out from Durban
and by 15h00 were in the vicinity of Black
Store.
Their presence there was in furtherance of a common
purpose to rob
the store, in accordance with prior
planning done on information supplied by
the third
appellant, who knew the store well. The first and
second
appellant, each armed with a loaded Beretta
pistol, entered the store whereas
the third appellant,
fearing being recognised should he approach the
store,
remained in a nearby plantation. In the store the first appellant fired at least two shots, killing the
deceased; the second appellant fired a shot at one of
the /
4. the walls so as to frighten members of the public about
to enter the store and he also pointed his pistol at the witness Emelda
Haines.
The arrival of a police vehicle caused the appellants to make their escape
without effecting their purpose to rob.
It is contended on behalf of the
first appellant that the court should have found that he did not have the
necessary intent to kill
so as to justify a conviction of murder. Reliance is
placed on the acceptance by the court a quo that part of the appellant's
evidence could reasonably be true, viz. that he jumped over a counter to attack
the deceased so as to
prevent him from drawing a firearm, that the deceased
resisted and kicked the
appellant's /
5.
appellant's testicles and that the appellant only then
fired the two fatal shots. The court, however,
rejected his evidence that
he was at that stage
"completely confused" as a result of pain, and it came
to the conclusion
that the appellant "knew what he was
doing". It is argued that the court
erred in this
respect.
The court a quo, however, gave the matter full
consideration. The court justifiably found the first
appellant to be
untruthful in a number of respects.
As to his description in evidence of the
manner in which
he shot the deceased, the court said :-
"His evidence-in-chief regarding the events immediately preceding the shooting of the
deceased /
6.
deceased was clearly designed to exonerate
himself as far as possible and
to give as little incriminating detail as possible. The detailed description
given by Accused No. 1
under cross-examination regarding the shooting of the
deceased is unconvincing because it is inconsistent with the wound tracks tes=
tified to by Dr. Phillips and Accused No. 1 was unable to explain such
inconsistency. It is also clear that Accused No. 1 must have
changed his story
as to the manner in which the wounds were inflicted between the time that Dr.
Phillips was cross-examined by his
Counsel and the time that he gave evidence.
In his evidence he stated that he had not grappled with the deceased in the
manner described
by his Counsel but he admitted that he had told his Counsel
that he was grappling with the deceased at the time the shots went off.
For the reasons I have given, we are satisfied beyond reasonable doubt that the evidence given by Accused No. 1 in regard to the manner in which the deceased was shot, is false."
The /
7. The court also considered that "his detailed evidence as to the
manner in which he fired the shots is clear proof that he knew
precisely what he
was doing at the time". These are cogent reasons for rejecting the evidence that
the first appellant was completely
confused. In the light of his admission under
cross-examination that he and the second appellant took the loaded pistols into
the
store in order to overcome any possible re= sistance and that his own state
of mind was that if someone did resist,he would shoot,
it cannot be said that
the court a quo erred in finding that the first appellant "knew what he
was doing". The first appellant's appeal against his conviction of murder
must /
8. must fail.
As to his appeal against sentence, it is
contended that the court a quo should have found ex= tenuating
circumstances. Again the kick on the testicles is invoked. Assuming that such a
kick may be accepted
as a fact in this phase of the enquiry and not merely as a
reasonable possibility (as to which no opinion is expressed), it is clear
that
in the circumstances resistance of whatever nature by the deceased could hardly
lessen the moral culpability of the appellant,
particularly where such
resistance did not lead to complete confusion on his part and where his
pre-existing state of mind was in
any event
to /
9.
to shoot if resistance were encountered. The first appellant's
appeal against sentence must also fail.
The appeal by. the second appellant
against his conviction of murder, rests upon the contention that although he
played his part in
carrying out the common purpose to rob he did not have a
direct intention to kill, as evidenced by him not firing at anyone but only
at
the wall, and that "he could not have foreseen that first appellant would be
kicked in his private parts and would react in the
manner he did". However, as
pointed out above, the court a quo's finding that the first appellant was
not completely confused cannot be faulted. It follows from the other uncontested
findings
of /
10. of the court a quo that the shooting by the
first appellant was a not unforeseeable reaction by the first appellant to
resistance encountered by him.
The court a quo was fully justified in
holding that in carrying out his part of the planned common purpose, the second
appellant foresaw and accepted
that the first appellant might use his loaded
pistol to lethal effect and that he participated in carrying out the common
purpose,
being indifferent to that possibility. The appeal against the
conviction must fail.
As to extenuating circumstances, it is argued on behalf
of the second appellant that the court a quo "should have found that the fact
that the second appellant had not fired any shot at the deceased and that he
could
not /
11.
not have foreseen the reactions of first appellant
over the circumstances in which those reactions took
place, were extenuating circumstances". As has been
pointed out above, the court a quo correctly found in
effect that the first appellant shot the deceased,
not as a result of mental confusion, but as an intended
reaction to meeting resistance of any kind, a reaction
which was foreseen and accepted as a possibility' by the
second appellant. This disposes of the argument in
this regard. The appeal against sentence must also
fail.
The third appellant did not enter the store but waited in a nearby
plantation. On his own version he
ran away when he heard the shots, but it is common cause
that /
12.
that he joined the others the next morning and accompanied them to Durban. The findings of the court a quo that he and the others planned robbing Black Store before setting out from Durban, that he supplied the necessary information, and that he knew that the first and second appellants each carried a pistol, are not contested. The only point made in the appeal against the third appellant's conviction of murder is that "the court a quo erred in drawing the inference that third appellant foresaw the possibi= lity of first appellant causing the death of the deceased in the execution of the planned robbery". It is argued that the court a quo should have found
the /
13.
the appellant was unaware that the pistols were loaded
and
that he did not expect the deceased to be in the shop to put up any resistance;
alternatively, that he expected the first and
second appellants to "either shoot
on the side or flee if there was any resistance".
The court a quo
found that the third appellant was aware that the pistols were loaded because
the other two inserted the cartridges in his presence
in the vicinity of Black
Store. It accepted the evidence of the second appellant on this point and
rejected the evidence to the contrary
of the first and third appellants. The
court a quo, it is argued, erred in this regard. But even assuming that it is
now open to
the appellant to raise,in the absence of an appeal in respect of
the
robbery /
14. robbery conviction,this point and that the court a quo should not have relied on the evidence of the second appellant, it could not be held that the court a quo was wrong in coming to the conclusion that the third appellant knew that they were embarking on a robbery with loaded pistols. The third appellant was an untruthful witness and his evidence that he was unaware that the pistols were loaded does not carry much weight. Moreover, there are additional facts, found by the court a quo and now uncontested, that show that the appellant must have known that loaded pistols were to be used. The robbery was planned in Durban and the third appellant supplied the necessary information. He had himself
attempted / ....
15. attempted a robbery at Black Store some time previously and had been shot and wounded by the deceased for his pains. The court a quo justifiably came to the conclusion that he informed the others of this experience. The inference is then irresistible that the three of them must have discussed the need to cope with any resistance of a similar nature, which would require them to be likewise armed with loaded pistols.
The argument that the court a quo should have found that the third appellant believed that the deceased was not in the store as his motor car was not seen when the three of them approached the store, and that he therefore did not foresee the possibility of resistance entailing the shooting of anyone, is tenuous. It must
be /
16.
be remembered that the planning in Durban must have
contemplated the possibility that the deceased would be in the store and that
he
might use his firearm. The planning must have proceeded on the basis that loaded
pistols were to be used and the third appellant
was obviously at no time
deterred by this prospect. Even if it could reasonably be true that the third
appellant at the final stage
thought that the deceased was not in the store, he
must at least have foreseen the possibility of some other person resisting and
being fatally wounded as a result. This did not cause the third appellant to
disassociate himself from the common purpose: he waited
for the robbery to be
effected.
The /
18.
As to extenuating circumstances, it is contended
that the court a quo "overlooked
the high probability
that third appellant was under the impression that
deceased
would not be there and therefore would not afford any
resistance"
and that it should have found "the degree
of remoteness as to the
foreseeability of deceased's
death" to be an extenuating circumstance. Again
the
alleged absence of the deceased's car is invoked. However, as has been pointed out above, the appellant
must in any event have foreseen the possibility of
someone else offering resistance and being shot by
first or second appellant. The conjunction of armed
robbery and death is so common that the third appellant
could not have considered death to be a remote possibility,
even / ......
19. even if he were to have believed at the last stage of the execution of the common purpose that the deceased was not in the shop. But, in any event, as the initial planning and excursion to Black Store was done on the assumption that the deceased would be in the shop and that pistols were to be used to overcome any resistance by him, a mistaken belief at the last moment that the deceased was fortuitously not then in the shop, could hardly reduce the appellant's moral blameworthiness. The court a quo has not been shown to have erred in any respect in coming to the conclusion that there were no extenuating circumstances in the case of the third appellant. The appeals are dismissed.
E.L. JANSEN JA.
ELOFF AJA) Concur