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LL Case No 415/1987

IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION

In the matter between:

TYELOVUYO MGEDEZI First Appellant
SOLOMON MANGALISO NONGHWATHI Second Appellant
PAULUS TSIETSI TSHEHLANA Third Appellant
SIPHIWE M M MBALOMDAKA Fourth Appellant
FRANS STONE MAKHANYA Fifth Appellant
EDWIN NKATHUTHU MASIKE Sixth Appellant

and

THE STATE Respondent

CORAM: BOTHA, SMALBERGER et STEYN JJA
HEARD: 12 SEPTEMBER 1988
DELIVERED: 30 SEPTEMBER 1988

JUDGMENT BOTHA JA:-
2 The six appellants in this case were convicted by a Judge and assessors in the Circuit Court at Klerksdorp on four counts of murder and one count of attempted murder. Three of the appellants, Nos 1, 2 and 3, were sentenced to death on each of the four counts of murder, and to 15 years' imprisonment each on the fifth count, i e attempted murder. Appellant No 4 was sentenced to 10 years' imprisonment on each of the five counts, the sentences to be served concurrently. The remaining two appellants, Nos 5 and 6, were each sentenced to 7 years' imprisonment on each of the five counts, such sentences also to be served concurrently. The trial Judge granted leave to the appellants to appeal against all their convictions and sentences.
The appellants had been charged together with two other persons. Of the latter, one, who was accused No 5, died about midway through the trial, during a period when it stood adjourned for a few weeks. The other, who was accused No 8, was acguitted
3 on all counts at the conclusion of the case. In the present judgment the individual appellants and their erstwhile co-accused will be referred to by the designations assigned to them in the Court a quo. So, the numbers of the first four appellants will coincide with their numbers as accused in the Court below, but the remaining two appellants will be referred to as accused Nos 6 and 7 respectively.
The trial was a sequel to violence that erupted on the night of 18 February 1986 in a compound comprising the single living quarters of the workers employed at the No 5 shaft of the Vaal Reefs Gold Mine near Orkney. With a view to the discussion which is to follow later of some of the major issues raised in this appeal, it is necessary at the outset to attempt a description of the layout of the locality in question. It is depicted in an aerial photograph which was exhibit H at the trial and which was used by most of the witnesses as a means of reference to point out the
4 various places to which their evidence related. The picture shows eleven large, double-storeyed, oblong buildings in which the workers are housed. There is an indication in the record that each hostel is roughly 100 metres in length. Approximately 4 600 workers live there. The eleven hostels are spread out over a large area of ground, which is fenced in. The dimen-sions of the area were not given in evidence, but the photograph conveys a clear impression of spaciousness. There are a number of other, smaller buildings situated in between the eleven hostels, such as ablution blocks, a bioscope, a television viewing room, and so forth, and there are also open spaces, in some places covered by clusters of trees.
Each hostel is referred to as a block with a specific number, from 1 to 11. They are situated as follows. Along the northern boundary of the com-pound, at the top of the photograph, there is a large building complex which was referred to in the evidence
5 simply as the kitchen. With the kitchen as hub, seven of the hostels are spread radially around it in an arc of, I would say, roughly 120 degrees. Block 7 lies directly to the west of the kitchen and is in line with it, along the northern boundary of the compound and extending to its western boundary. Looking towards the top of the photograph, i e northwards, block 7 is thus to the left of the kitchen. The other buildings in this group of seven then extend semi-circularwise from left to right (west through south to south-east) for about two-thirds of the area of the compound on a line from west to east. The hostel furthest to the east (or to the right, looking northwards) is block 1. The northernmost end of block 1 is roughly opposite the eastern end of the kitchen and it lies in a direction roughly from north-west to south-east. There is a semi-circular road around the south of the kitchen. The inner ends of blocks 1 to 7 converge on this road, where they are
6 relatively close to one another; their ends along the outer periphery are considerably further apart from one another, but the distances between them are not uni-form. The blocks are numbered, 1 to 7, from the east to the west, or, looking towards the kitchen, from right to left. The remaining four hostels are situated to the south of the group of seven described above. There is one, running from north to south, in the south-western corner of the compound; this is block 11. At right angles to it, in a line along the southern boundary, we find blocks 10 and 9. From the eastern end of the latter, block 8 slants away at an angle of about 40 degrees, towards the north-east. It ends up directly opposite the south-eastern end of block 1, but some distance away from it. To the east of block 8 there is a chapel.
The entrance gate to the compound is situated to the east of block 1; looking at the photograph, to its right. On an east-west line the entrance gate is
7 more or less opposite room 12 in block 1. As will appear presently, room 12 was the focal point of the violence which gave rise to this case. The distance between room 12 and the entrance gate appears from the record to be about 50 metres. The area in between is open except for the presence of some trees in that vicinity. Inter alia, there is a small cluster of trees close to the entrance gate, on its western side; and there are two small clusters of trees to the south-east and east of room 12, the one quite close to the building and the other slightly further away. To the south-east of the entrance gate there is a short line of what appear to be small structures and buildings, and the same can be seen to the north-east of the entrance gate. Otherwise, to the east (or right) of the entrance gate there is a fairly large open area, extending up to a number of large buildings which are adjacent to one another, running from the north-west to the south-east and covering practically the entire area

8

on a north-south line corresponding to the area com-prising the compound. These buildings include an ad-ministration block, offices, a medical station, and a so-called "crush block", at the northern end of the complex, through which underground workers must proceed on their way to and from the mine shaft, which is still further eastwards, beyond another area of open ground. The building complex has a number of passage-ways through which a person coming from the west can move in order to reach the open area to the east of it.
Room 12 in block 1 is situated on the ground floor, roughly two-thirds of the way along the length of the hostel from its northern or kitchen end, or one-third of the way from the other end, which is nearest to block 8. Next to room 12, to the south-east, there is a staircase in the building, leading up to the top f loor, and at the same place there is also a passage-way at ground level, through which people can proceed from one side of the building to the other.
9 There is a similar staircase with a passage-way situated at about one-third of the length of the building from the kitchen end. Blocks 2, 3, 4, 5 and 6 all have similarly placed staircases and passage-ways. The door of room 12 faces east and it opens onto a narrow stoep or verandah. Next to the door there is a large window which, within its outer frame, contains four squares. Each sguare contains an inner framework enclosing six smaller squares with six sepa-rate window panes. The two large lower squares have hinges at the top and they can be opened, when an inner lever is released, by pushing them outwards and up-wards, thus providing a fairly large open space in the wall. On the inner side of the door and window there is a portion of the room which can be described as the living area, and which is furnished with lock-up cup-boards, tables, chairs and so forth. To the back of this area are the sleeping quarters, consisting of two parts which are separated from each other by a dividing

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wall, and from the living area by curtains. Each sleeping area has four beds, and at the back each has a window in the western wall of the building, half the size, lengthwise, of the front window, and otherwise of similar construction.
At about 8 p m on the night of 18 February 1986 a number of men launched a vicious violent attack on room 12 and its occupants at the time. As far as the room itself is concerned, photographs taken of it shortly after the arrival of the police at about 10 p m depict a scene of havoc and devastation. Viewed from the front, every single pane in the window was broken. No door is visible in the doorway. Marks on the wall show where stones, pieces of concrete and other missiles had missed their mark. At the back, many, if not all, of the window frames had also been broken. Inside, to put it colloquially, the room was a complete shambles. Metal bedsteads were over-turned and up-ended, and chairs were broken and

11

overturned. The floor was littered with an almost unbelievable quantity of stones, rocks, bricks, pieces of concrete, pieces of metal, and innumerable pieces of debris of various kinds. Also, a large fire had been set alight inside the room. Police evidence was that the inside walls of the room were blackened by smoke and that there was a strong smell of petrol in the room. Black smoke marks can be seen in the photographs of the outside of the room, along the tops of the windows at the front and at the back. Many of the witnesses who gave evidence at the trial testified to having observed a huge cloud of smoke that emanated from the room.
I turn to the fate of the men who were in the room at the time of the attack. There weré six of them. Two of them lived to tell the tale - which they did, at the trial, as witnesses for the State. They are Fernando Nhone and Molikeng Albert Nkuatsana. I shall refer later to the details of their evidence in
12 so far as they implicated some of the accused. For present purposes I propose to mention briefly the main points of their evidence which bear on the nature of the attack and what happened to some of the other inmates of the room.
Nkuatsana was sitting under the trees in front of room 12, playing draughts, when he observed a group of men approaching from the direction of the kitchen. They were moving along the front of block 1 and they were dancing and singing songs. (I shall tell later what they were singing.) When they reached room 12, they kicked open the door, which had been closed, they stormed into the room and overturned some of the furniture. They left. Nkuatsana went into the room. He was busy tidying his clothing when the group of men returned, still singing. Suddenly stones were thrown at the room. The window panes at the front were broken. The door was still closed at that stage. One Daniel (who became the deceased in
13 Count 3) was trying to hold the door closed and to lock it. Stones were raining down on the room, from the front. Nkuatsana went to one of the back windows , opened it and jumped outside. He was now at the back of block 1 . He saw a group of men approaching from the direction of block 2. In fear of them, he went through the passage-way next to room 12 to the front of the building, where he found himself amongst the group of men who were still throwing stones; bottles containing some fluid were also being hurled into the room. He saw a tin of inflammable glue being produced. Some of it was applied to the door of room 12, which was set alight. It burnt for a while and then the flame went out. A motor car tyre was taken to the front of the room. A liquid which he took to be petrol or paraffin was poured onto it, it was set alight and then pushed through the window into the room. The door was broken down with hammers. Members of the group stormed into the room, one part of

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which was now aflame. They were armed with various kinds of weapons. He heard blows falling inside the room. He saw one Edward, an inmate of the room, rushing out of the door and fleeing in the direction of the medical station, towards the east, pursued by a group of the attackers. (Edward became the deceased in Count 1.) Nkuatsana next found himself amongst a group of spectators towards the south-east of room 12, apparently in the vicinity of the end of block 1. He heard people shouting that one Boy had escaped through a back window. (Boy was also an inmate of room 12 and he became the deceased in Count 2.) At that stage there were a group of men at the back of the southern end of block 1, where there is an ablution block between blocks 1 and 2. He heard blows falling there. He then saw Fernando (Nhone) rushing out of room 12 and running, very fast, towards the entrance gate. He had been severely injured. He fell down at the gate, got up, and ran further to the building complex to the
15 east of the gate. After falling down again he kept on running until he disappeared from sight. Nkuatsana went to the place between the back of block 1 and the ablution block, where he had heard the blows falling. He saw Boy lying there, dead. He f led from the compound and did not return that night.
Nhone was the victim named in the charge of attempted murder (Count 5). He was in the sleeping quarters of room 12 when he heard a group of people singing. They approached room 12 from the direction of the kitchen. As they passed the door, they pounded on it and forced it open. (He does not say that they entered the room then.) They moved off in the direction of block 8. After a while they returned, from the same direction. They were then aggressive. They were armed with, inter alia, bricks, stones and hatchets. Objects were hurled at the room, breaking the window panes. The mob tried to f orce open the door, while Boy (the deceased in Count 2) and Daniel
16 (the deceased in Count 3) tried to keep it closed. Those armed with hatchets hacked away at the door and succeeded in breaking it. A brick was flung through the broken door and struck Boy on the head. The crowd had divided into two sections, one being in front of room 12 and the other at the back. Boy went to a back window and spoke to someone outside. He then left the room through a back window. Edward (the deceased in Count 1) managed to escape out of the door after it had been broken. In the meantime bottles containing petrol were flung into the room, where they broke, spreading petrol onto the beds and all over the room. A piece of a cardboard box was set alight and thrown into the room, causing the whole room to catch fire. There was a great deal of smoke in the room. Men armed with handmade, very sharp swords entered the room and assaulted the inmates who were still inside. Daniel was struck down first, felled by a blow against his neck. Nhone himself was also chopped, apparently

17

with a sword. According to him: "Ons was toe dood".
He regained consciousness in hospital the next day.
In fact, as we have seen, he managed to escape and to
run away towards the building complex to the east of
the entrance gate. It appears from other evidence in
the record that he eventually reached the medical
station, from where he was taken to hospital.

A medical report on the severe injuries

sustained by Nhone was put in as evidence at the trial
by consent. Leaving aside minor injuries to his
fingers, wrist and back, the report describes his
injuries as follows:

"Extensive axe wounds to head, mainly in left occipital and parietal region. Palpable skull fracture through wounds. Skull X-ray - linear (compound) fracture left parieto-occipital region."
"Above wounds consistent with severe assault by sharp-edged instruments (? axes) and blunt objects."

The deceased in Count 1 was Edward Masiane.
18

As we have seen, he f led f rom room 12 through the
broken down door and ran towards the building complex
to the east of block 1, being pursued by some members
of the attacking mob. His body was ultimately found

in a kind of courtyard on the further (i e eastern)
side of the building complex. It is clear, therefore,
that he found his way through one or more of the
passage-ways through the buildings and was emerging

f rom the other side of them when he came to his end.
A report of a medico-legal post mortem examination
which was put in by consent (as in the case of all the
deceased) recorded the cause of his death as follows:

"Bloeding in die borskasholte a g v steek-wonde in beide onderlongstreke."

With a view to what is to follow later, two aspects of
the report must be noted. The first is that this
deceased's death was caused by two fatal stab wounds in
his back, as appears from the following extracts of the
report:

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"Penetrerende steekwonde bilateraal posterior toraks met penetrasie regter en linker onderkwabbe met bilaterale hemotoraks."
"Pleurae en longe:
Regter: Penetrerende steekwond 1 cm onder-
kwab regter long posterior Linker: Penetrerende steekwond 1 cm linker

posterior onderkwab."

The second matter to be noted is that . numerous lacerations (nine in all) were found on the deceased's body and that most of these were on his head, with some on the upper part of his chest and one on the upper arm.
The deceased in Count 2 was Phillemon Mota. He was the man referred to by Nkuatsana and Nhone as Boy, who left room 12 through a back window. His body was found near the ablution block, opposite the southern end of block 1. His death had been caused by a massive fracture of the skull. He had also sustained a large number of lacerations, mostly to the head.

20

Daniel Sikoati, the deceased in Count 3, was burnt to death. His body was found in room 12. A police photograph taken of it shows the burnt and partly charred body lying on top of some blackened remains of whatever it was that had been afire underneath it. The post mortem examination revealed that he had also sustained a fractured skull.
The deceased in Count 4, Joseph Rantlhatsi, was found by the police in room 12. He was alive, but had been mortally wounded. He was taken to hospital, where he died. The causes of his death were a fracture of the skull with brain haemorrhage and fractures of the ribs with haemothorax. In addition his left upper arm had been partially severed and he had sustained numerous lacerations and contusions all over his body.

Before I deal further with the events of the night in question, it will be convenient to refer to some facts which constitute the background to those
21 events. The eight men who resided in room 12 of block 1 were all team leaders at the mine. (As we have seen, six of them were present in the room at the time of the attack.) The position of a team leader was explained in evidence by Mr Pollack, the compound manager. A team leader is a foreman in charge of a number of workers, possibly up to 30,depending on the work situation. The function of a team leader is to supervise the workers in his team, inter alia by seeing to it that the working place underground was safely maintained and that the production was kept up. It is safe to infer that team leaders enjoy the confidence of the mine management, and also that instances of misdemeanour or dereliction of duty on the part of workers would be reported by the team leaders to the mine management. Pollack estimated that there were about 120 team leaders living in the compound. It may be mentioned at once that of the eleven eyewitnesses of the events on the night in question, called by the

22

State, all but one were team leaders (the exception being Armando Elias, a mine policeman who was on duty at the entrance gate). Shaft stewards, on the other hand, as Pollack explained, are members of the work force who are elected by their work-mates to act as representatives for the National Union of Mineworkers (hereinafter referred to as "the Union") in negotiations on their behalf between the Union and the mine management. Accused Nos 1 and 3, it may be said at once, were shaft stewards. Pollack estimated that possibly half of the work f orce were members of the Union. Part of the functions of a shaft steward, so it appears from the evidence of Pollack and other witnesses, is to receive complaints from workers who have been disciplined or who feel aggrieved for some reason, and to represent such workers, on behalf of the Union, in taking up their complaints or grievances with the mine management.

About the middle of 1985 a complaint on

23

behalf of the team leaders was lodged with the mine management against accused No 1. The complaint was that the team leaders had been threatened and intimidated by accused No 1. The complainant was Elliot Moshoeshoe. (At the trial he gave evidence for the State as an eyewitness of an important part of the events on the night in question, as will appear later. He is generally known by the name of Makepies and was referred to as such throughout the evidence. As there . was another State witness bearing the same surname as he does, I shall henceforth refer to him as Makepies.) As a result of Makepies's complaint a disciplinary enquiry was instituted against accused No 1, presided over by the personnel superintendent, Mr Goosen. The enquiry extended over some months. Team leaders gave evidence at the enquiry, including Makepies himself and a number of others who were also witnesses in the trial in the Court a quo. Accusêd No 1 attended the enquiry and was given an opportunity to defend himself.
24 In general, the tenor of the charges made against him was that he called team leaders "mpimpi's" who ought to be burnt to death. He denied the allegations. The result of the enquiry was that accused No 1 was found guilty and warned to desist from threatening the team leaders. Accused No 1 appealed. His appeal was dealt with by the personnel manager, Mr Du Plessis, who went through the evidence and found accused No 1 not guilty. It is convenient at this stage to mention that according to the evidence of accused No 1, he went on leave shortly after the conclusion of the enquiry, during November 1985, and he returned to work on 9 January 1986.
On Monday, 17 February 1986, a weapon was found on the person of a team leader in the "crush block", as he was returning from his work underground. This man was in fact Daniel Sikoati, the deceased in Count 3. On hearing of this occurrence, accused No 1 summoned the mine police and demanded that the rooms of
25 the team leaders be searched for the presence of weapons. The mine police refused to do so. Mine management was called, and Pollack and Goosen, inter alia, proceeded to the compound, where they talked with accused No 1. The latter insisted that a search for weapons be undertaken of the team leaders' rooms, mentioning specifically room 12 in block 1, room 77 in block 3, and room 160 in block 5. Pollack and Goosen decided not to accede to accused No 1 's demand. The reason was explained by Pollack in his evidence. He said that "the hostel was very, very tense, extremely so". The cause of the tension, according to Pollack, was twofold: on the one hand, team leaders had been complaining that they were being openly threatened and intimidated by members of the Union, who, with accused No 1 as their leader, had been running around, dancing and singing threatening songs, which frightened the team leaders; on the other hand, members of the Uhion and shaft stewards had been complaining that certain
26 team leaders were collecting weapons with the intention of attacking them, and that they had information that the weapons were being stored in the compound for the purpose of attacking them. Accused No 1 indeed told Pollack that there was going to be trouble if the rooms were not searched. During the presence of Pollack and Goosen at the compound a number of weapons were in fact produced, which had been found stored in a drain at the back of block 5. Accused No 1 was very annoyed at the refusal to conduct a search. On the following morning, however, a search was carried out, and a number of weapons were found in the compound, such as sticks, iron bars and the like.
Up to this stage the facts set out in this judgment are not in dispute. Proceeding to the next aspect of the background facts, we enter into an area of dispute. With a few exceptions, all of the eleven eyewitnesses called by the State also testified as to meetings held prior to 18 February 1986, at which

27

accused No 1 uttered dire threats against the team
leaders. At these meetings, the witnesses said,
accused No 3 invariably acted as interpreter for
accused No 1 , translating what he said in Xhosa into
the Sotho language. These meetings were a regular
occurrence. According to Makepies, the disciplinary
proceedings instituted against accused No 1 caused the
threats to cease for a while, but accused No 1 resumed
his threatening exhortations to the workers, directed
at the team leaders, during January 1986 (when, it will
be recalled, he returned from leave). A féw examples
of how the witnesses described the meetings and accused
No 1's threats will suffice. Nhone, mentioned above,
said that weekly meetings were held by the members of
the Union. The following are some excerpts from his
evidence, as to what was said by accused No 1 and
translated by accused No 3:

"Hy het gesê die mpimpi's word aan die brand gesteek met buitebande."

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"Dan begin hy met sy toespraak dan sê hy hierdie 'team leaders', dit is die spanleiers sal ek sê, is mpimpi's, beriggewers, want hulle werk hand in hand met die Blankes."
"Hy het net herhaaldelik gesê die spanleiers is mpimpi's en almal wat die vergadering bygewoon het skop toe h lawaai op - 'Ja, hulle is mpimpi's, hulle is mpimpi's.' So was die lawaai."
" Ja, hy het gesê hierdie mpimpi' s moet aan die brand gesteek word en 'n buiteband moet gebruik word."

Daniel Nkofu was one of the inhabitants of room 12 in
block 1 , but fortunately for him, he was outside it
when it was attacked on the night of 18 February 1986.
He was an eyewitness of the attack, as will appear

later. As to the meetings before that date and
accused No 1's threats, he said, inter alia:

"Wat baie ter bespreking gekom het, is dat hierdie spanleiers se kombuis moet gesluit word en hierdie wonings van hierdie spanleiers, 'team leaders', moet opgebreek
word. Mpimpi's moet verbrand word

Hulle dra nuus oor na die Witmense."

"Die mpimpi's, beriggewers, moet verbrand word. Hierdie spanleiers is die Witmense se

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beriggewers, dan sê hy aan die toehoorders

'Wat sê julle? Wat is julle reaksie

hierop?'"

Stephen Tshiame lived in room 101, block 4. He was an
eyewitness of the attack on room 12, as will appear
later. In the course of his evidence he was asked
whether he knew the reason for the attack on room 12.
He replied affirmatively and explained as follows:

"Dit was as gevolg van wat beskuldigde nr. 1 op h geleentheid gesê het nog lank voor hierdie voorval, aan mense gesê het dat die spanleiers wat daardie kamer bewoón is mpimpi's vir die Witmense, hulle is die Boere se mpimpi's, hulle moet doodgemaak word en ook verbrand word. U sien, hy het dit nie net op een geleentheid gesê nie. Dit was deur hom by verskillende vergaderings gesê toe hy h toespraak gelewer het."

Nkuatsana, when asked at the commencement of his
evidence what his rank was, replied that the people in

the compound called him a mpimpi, and went on to
explain the meaning of the word as follows:

"Maar wat beteken die woord mpimpi?

Dit is iemand wat waninligting gee oor die

30

ander werknemers by die seniors.

Die seniors, is dit die Witmense?

Ja.
Sou ek reg wees om te sê mpimpi beteken
'n nuusdraer van valse storietjies omtrent die
werkers aan die seniors, dit is aan die
Witmense? Ja."

Accused Nos 1 and 3 denied all of the State evidence
relating to the threats made against team leaders at
the meetings.

Against the background set out above I now

revert to the events on the night of 18 February 1986.
It is necessary first to discuss in broad terms some
aspects of the general tenor of the evidence of the
eleven eyewitnesses called by the State. The
outstanding part of the events was, of course, the
attack on room 12 and its occupants. That central
occurrence was, however, preceded, accompanied and

followed by other events that took place in different

places in the compound. Each of the State witnesses
described the particular event or events that he

observed, and each implicated only such of the
31 particular accused as he saw taking part in the events. Accused No 1 was seen, during the course of the evening, by seven witnesses, in various places in the compound; accused Nos 2 and 7 were implicated by only one witness each; and accused Nos 3, 4 and 6 were each implicated by two witnesses. Only accused Nos 1, 3 and 4 were seen in the immediate vicinity of room 12 at the time of the attack on it; the other three accused were seen only in other places in the compound. The total impression of the State evidence is thus too complex and fragmented to permit of a simple composite picture of it being given. The position of each of the accused will accordingly have to be considered individually and separately. There are, however, two salient features of the State evidence which may conveniently be referred to now. The first point to be noted is that there are no particular problems about identification present in this case, since it was shown in the evidence for the State that each of the accused

32

who was implicated by any particular eyewitness concerned was well known to that witness. For the purposes of this judgment the generalization that each State witness who identified a particular accused was well acguainted with that accused, will suffice; there is no need to enter upon the details of the evidence in that regard. The second point, which is of fundamental importance in this case, is that no State witness saw any of the accused actually inflicting any injury upon.any of the four deceased which caused or contributed causally to the death of any of the deceased, nor was any of the accused seen physically to assault Nhone. The absence of evidence that any of the accused committed any act which was directly and physically linked to the causing of the death of any of the deceased or to the assault upon Nhone, means that liability for the deaths or the assault can attach to the accused only if the State proved that the accused acted in common purpose with those whose acts caused

33

the deaths of the deceased or who took part in the assault upon Nhone.
Another feature of the State case, to which reference may usefully be made now, is that it appears from the evidence that groups of people were marching through the compound, dancing and singing songs calling for the mpimpi's to be killed. The single most comprehensive picture of the movements of the groups is provided by the evidence of Stephen Tshiame, to whom reference has been made before. The following is a summary of his evidence on this score. He had been visiting outside the compound, and onhis return he was on his way to room 12 in order to pay a visit to his uncle, Boy (the deceased in Count 2). He heard people singing behind him, turned around, and saw a small group of about ten men coming through the entrance gate, singing. They moved in the direction of the kitchen, still singing. He went into room 12 and was sitting talking to his uncle when he heard a group of
34 singers approaching from the kitchen and moving towards the direction of block 8. The group was now larger. As they passed room 12, its door was kicked open, but no one entered the room, according to this witness. He then lef t the room and went through the passage-way next to it, towards block 2. On his way to block 3, having passed through block 2, he saw the singing group, which had become still larger, moving towards block 2 and the kitchen. He went into his room, which is room 101 in block 4. He heard the sound of singing from between blocks 4 and 5. Looking out of his win-dow, he saw the group, which had by now grown to about 100 people, moving along block 5. Passing room 140 in block 5, in which the headman of a tribe lived, mem-bers of the group tried unsuccessfully to force open the door. The group moved on to room 144, where a depu-ty headman lived, and some of the group entered while the main body of it waited outside. After a while the smaller group rejoined the large one, which then moved

35

on to the top floor of block 5, to the room where Makepies lived. (This was room 160.) Again, some members of the group went inside the room, while most of the group waited outside, and after a while those that had entered the room rejoined those waiting outside. Still singing, the whole group moved" to block 4. The process of some members entering a room and then rejoining the group was repeated at room 100 (next-door to where the witness was) and at rooms 108 and 112. The group then moved on to block 3. After a while Tshiame left his room. He heard someone saying that team leaders were being killed at block 1 and proceeded thence to investigate. He found a great mass of people in front of room 12. He stood in darkness under a tree and saw that stones were being thrown at room 12. He left the scene and returned to his room.

The "visits" of members of the singing group to two of the rooms mentioned by Tshiame can now be

36

explored a little further. First, room 160, on the top floor of block 5, where Makepies lived. Makepies testified that he was asleep in his room when one Simon came to warn him that people who were looking for him were approaching. He could hear people singing, but could not make out what was being sung. The people were coming towards his room. He decided to hide away in the ceiling of his room. While hiding there, he heard people entering his room. They were still singing, but he did not take notice of what they were singing. After a while they left. Makepies decided to flee. He ran past the kitchen towards the building complex to the east of the compound, intending to look for shelter in the shaft-head beyond. When he reached the building complex his attention was distracted by a noise coming from the compound. He paused in his flight and watched what was happening. He saw a great mass of people at block 1 , in the vicinity of the entrance gate to the compound. He then saw a flame

37

and smoke emanating from the hostel. A whistle was
blown and people scattered in all directions.
Makepies found a hiding place in the building complex,
from where he witnessed how Edward Masiane, the
deceased in Count 1, was killed. With this I shall
deal later.

The second room mentioned by Tshiame, to

which I refer next, is room 108. There were four
people in the room at the time, two of whom became
State witnesses: Ernest Modise and Ephraim
Moshoeshoe. (I shall refer to the latter as Ephraim,

in order to avoid possible confusion with the other man
with the same surname, Makepies.) Modise said that he
was sitting in the room with his room-mates when he
heard people singing outside, between blocks 4 and 5.

He went out and saw a group of people moving to

Makepies's room. He heard some of them shouting:

"Makepies, Makepies, kom af, ons wil vir jou doodmaak."
38

He went back into his room. Shortly thereafter a
number of men entered the room, singing. They were

singing in Xhosa, which he does not understand. These
men then assaulted the inmates of the room by pushing

them around. They also knocked a radio off the
table. They then left. After a while Modise left

the room himself, and witnessed certain further events

in that vicinity and, later, at room 12, with which I

shall deal later. Ephraim confirmed that a number of
men suddenly burst into the room. They were singing

and clapping their hands, and they jostled the inmates
and knocked over a radio. He could understand what

they were singing. He said the song went as follows:

"Mpimpi, wat maak ons met jou vandag, jou duiwel. Vandag gaan jy dood."

The intruders left, and after a while Ephraim also left

the room. He saw a group of people moving towards

block 1, room 12, and he went there himself. What he

witnessed there will also be dealt with later. At

39

this stage it will be convenient to mention that many
of the State witnesses heard songs being sung of
similar vein to that deppsed to by Ephraim. I shall
now give some further examples of the theme song of the
evening. Komeisi Qhalisile was walking from his room
in block 6 towards the kitchen, on his way to work
underground, when he encouhtered, between blocks 3 and
4, people whom he described as members of the Union.
They were dancing, and singing:

"Mpimpi moet doodgemaak word, mpimpi moet

doodgemaak word die mpimpi's moet
gebrand word."

Johannes Motjoli was on his way from the kitchen to his
room in block 3 when he saw a group of men dancing and
singing between blocks 2 and 3. They sang:

"'Team leader' is 'n mpimpi. Hierdie mpimpi sal niks kan doen nie, dié duiwel sal brand."

Nkuatsane said that the group of people who first moved

from the kitchen past room 12 sang as follows:

"Wat is jy, mpimpi. Jou duiwel, vandag gaan
brand jy Vandag gaan leer jy 'n les."

40 Having sketched the general tenor of the State evidence, I turn to the general tenor of the defence evidence. Each of the accused involved in this appeal gave evidence denying any participation in any of the events deposed to by the State witnesses. In brief, accused No 1 raised an alibi: he denied that he was in the compound at all during that evening and said that he spent it at the house of one Colbert Mtjelwa, who was called as a witness on his behalf. Accused Nos 2, 4 , 6 and 7 admitted that they were in the compound, but each of them testified that he saw or heard nothing at all of the commotion in the compound or of the attack upon room 12 and its occupants until after the events had run their course, i e until more or less the time when a contingent of the mine security force arrived on the scene. Accused No 3 admitted to having been in the compound and having seen a throng of people in front of room 12, but he denied knowledge of any further details or any participation in the
41 events. I shall refer more fully to the evidence of each of the accused when I come to consider the case against each individually.
It is necessary now to examine the manner in which the trial Court dealt with the evidence in the case. The trial Judge in his judgment, by way of introduction to a review of the evidence relating to the events of the night in question, observed that the trial Court had to be satisfed that there was no reasonable possibility that the defences of the accused could be true; that involved also, he said, that the trial Court had to be satisfied beyond reasonable doubt that the accounts given by the State witnesses were credible and reliable in all material respects; accordingly, the learned Judge continued, it would be appropriate always to bear in mind the defence cases when considering the evidence for the State; and for that purpose it was considered necessary first to set out the defences put forward by the various accused.

42

The approach reflected in these remarks is, of course,
unexceptionable. But unfortunately, when it
ultimately came to an actual assessment of the
evidence, the trial Court failed to apply this approach
properly, as will appear presently. The learned
Judge went on to summarize, at some length, first, the
evidence given by and for each of the accused, and
then, the evidence given by each of the State
witnesses. He then reviewed the purport of the
arguments addressed to the trial Court by counsel for
the State and by counsel for the accused. Thereafter
the learned Judge formulated the reasoning and the

findings which constitute the core of the trial Court's
judgment. In the quotation which follows below I
have divided the passages of major importance into four

separately numbered sections, for ease of reference

back in the rest of the present judgment:

(1) "Daar hoef slegs na BEWYSSTUK G1 EN G2 gekyk te word om 'n besef te vorm van die omvang van die woeste geweld en

43

rumoer wat h honderd of meer gewelde-naars sou veroorsaak het wat sing en dans, klippe teen die mure en deur die vensters aan die westekant gooi, deur stukkend kap, verset oorweldig en uit-eindelik aan die brand steek en af-brand. Dit is redelik om te aanvaar dat geen inwoner van die kampong onbe-wus sou wees van die oproer wat ge-heers het nie. Dit het begin met die groepies wat uit verskeie rigtings kom, dansend sing en deur die kampong beweeg en uiteindelik konsentreer en saamtrek in die omgewing van die kerk aan die suidekant en van daar verdeel sodat een groep aan die westekant tus-sen blokke 1 en 2 die agtervenster van kamer 12 beheer en die groot groep aan die oostekant toegang deur die kamer-

deur sou kry Ons is een-

parig van mening dat die verdediging se getuienis dat dit rustig en kalm in die kampong was, dat geen kennis van geweld opgedoen is nie behalwe in die beperkte mate waarvan getuig is, in alle opsigte opsetlik vals is."

(2) "Sover ons weet het nie een van die beskuldigdes h verklaring aan die polisie gemaak nie. Daar was onge-twyfeld honderde inwoners van die kam-pong wat aanskouers was van een of ander dade van die geweldenaars. So 'n toeskouer maak hom nie skuldig aan deelneming nie. Dit is die maklikste en vanselfsprekende verweer om aan die polisie te gesê het dat elk slegs

44

toeskouer was. h Verstommende aspek van een en elke beskuldigde se verdediging is dat elk sig nie as 'n toeskouer verontskuldig nie. Elkeen ontken kennis van dans, sing en dreigemente teenoor spanleiers as mpimpi's, dat daar onrus in die kam-pong was en dat hulle vooraf en gedur-ende die geweld daarvan te wete gekom het. Hulle distansieer hulle van die geweld en in die proses vertel hulle verhale wat teenoor oorweldigende waarskynlikhede militeer. Die af-leiding skyn onvermydelik te wees dat beskuldigdes 1 tot 7 inderdaad op die toneel was en deelgeneem het aan die uitvoering van die mpimpi-dreigement. Hulle besef ook dat hulle deur die Staatsgetuies in een of meer opsig met h spesifieke handeling geïdentifiseer is en om daardie rede nie die onskuld-ige toeskouer-verweer suksesvol kan opper nie. Ons verwerp hulle verwere as vals bo redelike twyfel."

(3) "Die aard van die beserings van elke oorledene en dié van Fernando, die in-strumente waarmee, die wyse waarop en omstandighede waaronder dit meedoën-loos toegedien is lewer onbetwisbare getuienis dat die toedieners h gemeen-skaplike opset gehad het om te dood en enigiemand wat hom met die daders ver-eenselwig het deur iets te doen wat ter bevordering of ondersteuning van die bereiking van die gemeenskaplike doel gedoen is, wat hy gedoen het, is

45

aanspreeklik vir die gevolge wat hy as h moontlikheid voorsien het en deson-danks onverskillig was of die gevolge sou intree of nie op die stadium toe hy sy bydrae gemaak het."

(4) "Die Staatsgetuies vanuit die kampong is volwassenes. Hulle het sonder h waarneembare sweem van oneerlikheid en aandigting getuig. Geen teken of rede is aangevoel dat die implisering van 'n beskuldigde opgemaak en kwaadwillig is of selfs op gebrekkige of foutiewe waarneming berus nie. Selfs die teenstrydighede of die weersprekings waarop mnr Smith gewys het en wat in hulle getuienis voorkom doen nie afbreuk aan hulle geloofwaardigheid nie. Trouens die voorkoms daarvan weerlê enige gedagte dat daar moontlike samespanning tussen enige van of al die Staatsgetuies mag wees om h meinedige verhaal hier in

die hof op te dis Die

Staatsgetuies staaf mekaar onderling. Hulle getuienis skilder h ineengeweef-de geheelbeeld sodat ons oortuig is dat elkeen se getuienis, alhoewel in sekere opsigte dié van h enkele ge-tuie, bevredigend, geloofwaardig en sover dit gaan betroubaar is."

The learned Judge proceeded to state briefly, in
respect of each of the accused, in what manner and by
which State witness or witnesses that particular

46

accused was implicated in the events. In this brief survey there was no further consideration given to the evidence of each accused (except in the case of accused No 1), in the sense of weighing it up against the State evidence implicating that accused. In each case (except for accused No 1) the synopsis of the State evidence relating to the individual accused concerned was simply preceded or followed by the terse statement that the evidence of that accused was false, or had been found to be false. On this basis each of the accused was found guilty on all 5 counts, as set out at the commencement of this judgment.
It is clear that the heart of the trial Court's reasoning is to be found in paragraph (2) of the above quotation from the trial Judge's judgment. In my view, with respect, that reasoning is fundamentally fallacious. The idea expressed in the first part of the paragraph, viz that a mere spectator amongst a crowd present at the scene of violence cannot

47

be held liable for the violence, is, of course,true. No one has ever suggested the contrary. (I ignore the misguided comments of hysterical politicians masguerading as lawyers, following upon the judgment delivered in the case reported as S v Safatsa and Others 1988 (1 ) SA 868 (A).) And, simply for the sake of argument, it can be supposed to be "an astonishing aspect" ("'n verstommende aspek") of the defences put up by the accused that not one of them sought to exculpate himself as a mere spectator of the events. (The learned Judge's statement is factually not quite accurate, though, as far as accused No 3 is
concerned.) But these comments, coupled with the reference to the denials of each of the accused of any knowledge of a commotion, or unrest, or violence, or threats to mpimpi's, in the compound that night, cannot possibly serve as a foundation for the further reasoning of the trial Court. A view of the totality of the defence cases cannot legitimately be used as a

48

brush with which to tar each accused individually, nor as a means of rejecting the defence versions en masse. The global view taken by the trial Court of the defence cases led it to draw two inferences: (a) that each accused was present at the scene (sc at room 12) and participated in the execution of the threat against the mpimpi's; and (b) that the def ences of all of them were false beyond reasonable doubt. With respect, as a matter of simple logic I consider both inferences to be wholly insupportable. First, as to (b): an explanation given in evidence by an individual accused for his unawareness of the relevant events in the compound whilst these were taking place cannot logically be rejected on the grounds that all the other accused professed similar unawareness for different reasons and that it is unlikely that all of them could in fact have been so unaware; nor on the ground of the generalized assumption stated in paragraph (1) of the above guotation from the judgment, that not a single
49 inhabitant of the compound would have been unaware of the events; nor on the blanket acceptance, en masse, of the evidence of all the State witnesses, as stated in paragraph (4) of the above quotation; nor on all these grounds taken together. The trial Court erred by precluding itself from performing its duty to consider the evidence of each accused separately and individually, to weigh up that evidence against the particular evidence of the individual State witness or witnesses who implicated that accused, and upon that basis then to assess the question whether that accused's evidence could reasonably ppssibly be true. That the trial Court's failure to embark upon such an exercise constituted a serious misdirection can best be demonstrated by considering the position of accused No 7; I shall accordingly deal with his case first when I come to examine the cases of the individual accused in a moment. As to the inference in (a) above: there is simply no foundation in the evidence for the finding

50

that all the accused were present at room 12 when the violence was being perpetrated there. As was pointed out earlier, only three of the accused were seen by State witnesses near room 12, and there is no way in which the other three accused, who were seen elsewhere in the compound, can notionally be transplanted to the vicinity of room 12 by way of a generalization. Nor is there any justification for the further generalization, stated as such in the judgment, that all the accused took part in the execution of the threat to kill the mpimpi's. The reference, in purely general terms, to liability on the basis of a common purpose, in paragraph (3) of the above quotation from the judgment, cannot warrant an inference of liability in respect of all the accused en bloc. The trial Court was obliged to consider, in relation to each individual accused whose evidence could properly be rejected as false, the facts found proved by the State evidence against that accused, in order to assess

51

whether there was a sufficient basis for holding that accused liable on the ground of active participation in the achievement of a common purpose. The trial Court's failure to undertake this task again constituted a serious misdirection. This can best be demonstrated by examining the position of accused No 6. I shall deal with his case after I have dealt with the case of accused No 7.
I turn, then, to a consideration of the cases of each individual accused, and, as indicated above, I shall commence with the case of accused No 7.
The State case against accused No 7 rested on the evidence of a single witness, Johannes Motjoli. In so far as it is relevant in the present context, Motjoli's evidence can be summarized guite briefly. He was standing in front of block 3 when he observed a huge crowd of people moving from block 8 towards block 1, room 12. Suddenly he saw smoke rising into the air at that place. After a while (during which time
52 accused No 4 came past, as will be related later) he saw accused No 7 in a group of men coming into the open space between blocks 2 and 3, where there are trees. They emerged from the passage-way in block 2 which is nearest to the kitchen. They had come, he said, from block 1. (It is difficult to imagine how he could have known that, but for present purposes that is by the way.) Accused No 7 and some others in the group broke off branches of the trees for use as sticks. As Motjoli put it: "Hulle kom pluk toe hierdie kieries by bome hier by die spasie tussen 2 en 3". Accused No 7 then handed the kieries that he had gathered to other members of the group. They then all left, apparently by the same route as they had come. According to Motjoli they went back to block 1. (Again it does not appear how he could have known that, but it does not matter.)

That was the only evidence against accused No 7. He denied it, emphatically, branding Motjoli as a

53

liar. His own evidence can also be summarized quite briefly. He said that after he had had a meal at the kitchen, he went to the television room at block 7 and watched television there until the station closed down. (I shall not mention his estimates of the time, as they are clearly unreliable.) He then walked towards his room, which is room 42 in block 2. He followed a path along the southern ends of blocks 6, 5, 4 and 3, turning left opposite block 8 to proceed along the west of block 2 (this block faces west, i e blocks 2 and 1 are situated back to back). To reach his room, 42, he had to go past room 47. As he approached blocks 3 and 2 he saw people standing around in scattered groups. When he reached room 47, he found a number of men standing in front of it. They were accused No 6, Sam, Edward Mafaisa, Petrus, and a policeman called Quenene. Room 47 is close to the passage-way through block 2 which is nearest to block 8, i e room 47 is almost exactly opposite room 12 in block 1. Accused No 7

54

asked accused No 6 what was happening, and received the reply that the workers were attacking the team leaders in room 12. According to accused No 7 he sat down with the others, waiting, and after some time the security people arrived in the compound. The little group with whom he was sitting scattered, and he went off to his room and to bed.
Two aspects of accused No 7's evidence require further comment. The television room, where he said he had been, is situated between the western ends of blocks 6 and 7. It will be recalled that block 7 lies along the northern boundary of the compound, extending to its western boundary. So the television block is situated practically in the north-western corner of the compound, at about the furthest point away from room 12 in block 1. The distance between the television room and room 12, having regard to the aerial photograph and such distances as appear f rom the record, cannot be less than a couple of

55

hundred metres. The importance of this is obvious: there is no foundation for a finding that a person who was watching television in the television room must have been aware of the commotion that was taking place in the compound in the vicinity of block 1, or even at the kitchen or at blocks 4 and 5. Accordingly there is nothing inherently improbable in accused No 7's evidence. The other matter to be noted is that accused No 7's evidence of his meeting up with accused No 6 in front of room 47 is not confirmed in the evidence given by accused No 6. But accused No 6 was not asked anything about accused No 7. The latter's evidence in this respect was certainly not an afterthought on his part, for it was specifically put to Motjoli in cross-examination. I do not consider, therefore, that the mere silence of accused No 6 on this point detracts from the evidence of accused No 7. Moreover, a witness who was called on behalf of accused No 6, Edward Mafaisa, confirmed in his evidence that
56 accused No 7 was present amongst the little group of people who were together in f ront of room 47. It should be mentioned that one part of the evidence of accused No 6 and Mafaisa falls to be rejected, as will appear presently, when I come to deal with their evidence. However, the unacceptable part of their evidence does not relate to the fact of their being present in front of room 47 at a stage when accused No 7 arrived there. In fact both of them testified to having been at that spot shortly before the security police arrived in the compound, and I do not think that this part of their evidence is tainted by the rejection of other aspects of their evidence.
In the case of accused No 7, then, we have a straightforward conflict of evidence between Motjoli and the accused. It is possible, on a minute scrutiny of the evidence of accused No 7, to unearth minor points of criticism against it, but that applies no less to the evidence of Motjoli. No motive has
57 been revealed as to why Motjoli would falsely implicate accused No 7 and it may be said that it is unlikely that he would have done so, but it need hardly be added that that affords no sufficient basis for rejecting accused No 7's denial of Motjoli's evidence as being false beyond reasonable doubt. As I have said, there is nothing substantially improbable about accused No 7's evidence. In my judgment the State failed to establish its case against accused No 7 with the requisite degree of proof.
It follows that accused No 7's appeal against his convictions and sentences on all 5 counts must be upheld in its entirety.
I turn to the case of accused No 6. He was implicated by two State witnesses, Ernest Modise and Phillip Jobo. I have already referred to Modisê's evidence regarding the singing and dancing group of men whom he observed moving to Makepies's room in block 5, and who then entered room 108 in block 4, where Modise

58

was. Modise's evidence against accused No 6 was that he saw him in that group, whilst it was going towards block 5 and Makepies's room. He said that accused No 6 was in the vanguard of the group as it was moving to block 5. Accused No 6 was dancing and singing. Modise saw no weapon in the possession of accused No 6, but he noticed that the members of the group were throwing their fists into the air as they were singing. Accused No 6 was not amongst those who entered room 108.
Jobo stayed in room 101, block 4. He was in his room when he heard people singing. They went into room 100, next-door to his room, still singing. Room 100 was a room in which team leaders were staying, but he could not say whether any of the inhabitants were present there at the time. As the group was leaving room 100, Jobo looked out of the window of his room. He saw accused No 6, who was carrying a stick ("kierie"). He was one of the singers. There were

59

guite a number of them. He heard that they were singing that mpimpi's had to be killed. He knew they were referring to team leaders, because he had attended a meeting at which accused No 1 had made a speech calling for the killing of mpimpi's, being the team leaders, because they were maltreating the workers at their work. Jobo said that he saw further that the group went on to room 108, which they entered. It will be recalled that that was the room in which Ephraim and Modise were. When the group emerged from that room, they moved further away around various blocks. Jobo, who knew that he himself was regarded as a mpimpi, f led to a room in block 5, where he remained.

Accused No 6 denied the evidence against him. He testified that he was playing cards in his room, which is room 47 in block 2, with three others: Sam, Petrus and Edward Mafaisa. The latter was called as a witness on his behalf, as I have mentioned. The
60 evidence of both accused No 6 and Mafaisa was to the ef f ect that the people in the room were unaware of anything out of the ordinary happening in the compound, until a policeman, one Quenene, who lived next-door, came into the room and said (I quote from Mafaisa's evidence): "Gentlemen, why are you playing cards? Don't you know what is going on outside? You should not be playing when such things are going on here". Accused No 6 and Mafaisa said that they and the other two card-players then left room 47 and went to stand outside it. Both of them saw a crowd of people moving from the kitchen towards block 1 and that smoke was billowing from block 1, and both of them heard a lot of noise, such as of people shouting and running about, emanating from behind block 1 (i e from its front). They stood in front of their room until the security vehicle ("Hippo") arrived in the compound. Accused No 6 at first said that they stood there for a long time before the security force arrived, but in cross-
61 examination he changed his evidence and said that the vehicle arrived almost immediately, or shortly, after they had left their room to go outside. Mafaisa's evidence was to the effect that the vehicle arrived within a short space of time after they had gone outside. On the arrival of the vehicle the people outside the hostel dispersed and both accused No 6 and Mafaisa went to bed.

The purport of the evidence of accused No 6 and Mafaisa is clearly that the attack on room 12 and its occupants had taken place while they were playing cards in room 47 and had been concluded by the time that they left their room and went outside, and that they were conseguently unaware of it at the time when it occurred. In my view their evidence in this respect is extremely unlikely. As mentioned earlier, room 47 is situated in block 2, almost exactly opposite room 12 in block 1. At that place blocks 1 and 2 are close to each other. Due allowance must be made for

62

the facts that the rear portions (the sleeping quarters) of the two rooms faced each other, that the windows of room 47 may have been closed, and that a portion of the ablution block intrudes into the space between the two rooms. But even doing so, having regard to the nature of the events that were happening at room 12, as described earlier, and having regard to the close proximity of the two rooms to each other, I find it very difficult to believe that the occupants of room 47 would not have heard the commotion that was being created at room 12. To assess whether, in spite of the strong inherent improbablity of their evidence, it can still gualify as being reasonably possibly true, reguires that it be weighed up against the evidence of Modise and Jobo.

Neither Modise's nor Jobo's evidence regarding their observations of accused No 6's conduct in the vicinity of blocks 4 and 5 can be subjected to any valid criticism. They made their observations

63

from different vantage points and independently of each other, yet their descriptions of the manner in which accused No 6 acted tally in all material respects. The fact that Jobo saw a stick in accused No 6's hand while Modise did not, is not, I consider, of any consequence, for it cannot sustain an inference that either or both of them were untruthful or unreliable in regard to the acts alleged by them to have been performed by accused No 6. The important consideration is that, having regard to their opportunities for observation, the nature of the evidence given by each, and the fact that accused No 6 was well known to them, there is no real room f or theorizing that either was mistaken in his evidence as to the accused's presence in that vicinity or the manner in which he acted. That being so, the only basis upon which their evidence can be assailed is by postulating that they conspired falsely to implicate accused No 6. Such a possibility is extremely
64 unlikely, in view of the nature of the evidence given by each of these witnesses, as summarized above; the improbability of either or both having concocted a false story of the kind told by them, in order to implicate accused No 6, is so obvious that it needs no further elaboration.
In my judgment, reviewing the totality of the evidence of Modise and Jobo on the one hand, and that of accused No 6 and Mafaisa on the other, in the light of the considerations discussed above, it is not a reasonable possibility that the evidence of the former two witnesses was false and that of the latter two witnesses was true. It follows that the State proved beyond reasonable doubt that accused No 6 performed the acts attributed to him by the State witnesses.
It does not follow, however, from what was proved against accused No 6, that he was guilty of four murders and one attempted murder, as was found by the trial Court. Indeed, with respect to the trial Court,

65

when one considers the evidence against accused No 6, the verdicts recorded against him are so startling that it is patent that the Court must have fallen into error in its reasoning. The error committed by the trial Court is to be found in the manner in which it applied considerations of common purpose to the case of accused No 6, as I shall now endeavour to show.
It would appear from the judgment of the trial Judge (paragraph (2) of the quotation given earlier) that the trial Court might have based its decision on a finding that there had been a prior agreement between the accused to kill the mpimpi's, i e the team leaders. There was, however, no evidence to substantiate such a finding. The attack which resulted in the killing or wounding of team leaders was confined to room 12 and its occupants. Consequently any enquiry into common purpose must be directed at the events that occurred there. As far as accused No 6 is concerned, there is nothing in the evidence to show

66

that he had agreed that the inmates of room 12 were to be assaulted. There is no suggestion of an express agreement and there is no proof of an implied agreement. As to the latter, the acts that accused No 6 was proved to have committed in the vicinity of blocks 4 and 5 do not give rise to an inference beyond reasonable doubt that he had agreed with any other person that the occupants of room 12 were to be killed. At the time when, and at the place where, accused No 6 participated in the activities of the group who were calling for mpimpi's to be killed, those activities constituted no more than threats and intimidation, which had not reached any stage of actual execution, as we know from what happened in room 108, and it would be too much of a leap in time and place to infer from those events that accused No 6 had agreed to the events that occurred at room 12.

In the absence of proof of a prior agreement, accused No 6, who was not shown to have contributed
67 causally to the killing or wounding of the occupants of room 12, can be held liable for those events, on the basis of the decision in S v Safatsa and Others 1988 (1) SA 868 (A) , only if certain prerequisites are satisfied. In the first place, he must have been present at the scene where the violence was being committed. Secondly, he must have been aware of the assault on the inmates of room 12. Thirdly, he must have intended to make common cause 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 mus.t 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. (As to the first four

68

requirements, see Whiting, 1986 SALJ 38 at 39.) In order to secure a conviction against accused No 6, in respect of the counts on which he was charged, the State had to prove all of these prerequisites beyond reasonable doubt. It failed so to prove a single one of them.
It follows that the appeal of accused No 6 must succeed in respect of all 5 counts.
Accused No 6 cannot go scot-free, though (unlike accused No 7). In my view the facts proved against him show that he committed the crime of public violence. He actively associated himself with a large group of people who were intentionally and unlawfully threatening forcibly to disturb the public peace and to invade the rights of others and who were actually carrying out the threats to the extent of gaining forcible entry to a number of rooms occupied by team leaders and in one instance assaulting the inhabitants of such a room. Although the one

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instance of actual assault which was proved was of a minor nature, it is clear, in my judgment, that the threats that were uttered and the general manner of behaviour of the group were of sufficiently serious dimensions to constitute public violence. It is also clear that accused No 6 actively identified himself with the activities of the group by participating therein. A conviction for public violence is competent on a charge of murder and in my judgment such a conviction is warranted against accused No 6. The guestion of an appropriate sentence to be imposed in respect of such conviction will be considered later.
The subject of common purpose, with which I have just dealt in relation to accused No 6, arises pertinently also in the case of accused No 2. It will be convenient, therefore, to consider the case of accused No 2 now.

The State case against accused No 2 rested on the evidence of Makepies. I recounted earlier how

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Makepies fled from his room in block 5 and how he found himself a hiding place in the building complex to the east of block 1 . I take up his evidence from there. As he was standing in his hiding place, a man came running into an open space, a kind of courtyard, which was well lit and on which Makepies had a clear view. This man later turned out to be Edward Masiane, the deceased in Count 1. In the present context I shall refer to him simply as the deceased. The deceased was being pursued by another man, whom I shall call the unknown assailant. As Makepies watched, the deceased stopped, turned around and tried to grab hold of his pursuer, the unknown assailant. The latter dealt him a blow, and then a second blow, with a weapon that Makepies could not identify, but which, he said, was a shiny object. After the second blow the deceased fell to the ground. As he was lying on the ground the unknown assailant dealt him some more blows. At this stage Makepies noticed another man approaching,
71 apparently from a northernly direction but in any event (this is quite clear) from a direction and through a passage-way completely different from whence the deceased and the unknown assailant had come. This man came towards where Makepies was standing. Makepies did not say whether he was then walking or running. The man then stopped and turned around and walked in the direction where the deceased and the unknown assailant were. He walked past Makepies at a distance of a couple of paces. Makepies recognized him as accused No 2. Accused No 2 walked up to the place where the deceased was lying prostrate on his back. By now the unknown assailant had ceased his assault on the deceased and was standing to one side. Accused No 2 looked at the deceased and then proceeded to deal him a number of blows. He held an object in both his hands, which Makepies could not identify, and with up and down movements he struck the deceased. The blows landed on the deceased's head and the upper

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part of his chest. A third person (i e apart from the unknown assailant and accused No 2) then appeared ón the scene. These three men stood there awhile and then left together. After they had left, the deceased crawled away for some paces, up to the place where he was later found dead.
Accused No 2 testified, denying any involvement in the attack upon the deceased. However, in the Court a quo junior counsel who appeared for all the accused conceded that accused No 2's evidence was worthless, and in this Court senior counsel representing the accused abided by that concession. Apart from saying that the record shows that the concession was fully justified and was very properly made, I need not refer further to the evidence of accused No 2.
Makepies's evidence was the sum total of the State case against accused No 2. As in the case of accused No 6, the trial Court's startling conviction of
73 accused No 2 on four counts of murder and one count of attempted murder is attributable to a wholly unwarranted application of considerations relating to common purpose. Nothing in Makepies's evidence can justify a finding of common purpose between accused No 2 and the mob who launched the murderous attack on the occupants of room 12. I need not traverse the same ground as I did when dealing with the case against accused No 6. Suffice it to say that the prerequisites for holding accused No 2 liable for what happened in room 12 cannot be suggested to be satisfied except on the basis of pure conjecture. Nor does Makepies's evidence afford a foundation for finding accused No 2 guilty of the murder of the deceased in Count 1 alone. From the medical evidence concerning the injuries sustained by this deceased and the cause of his death, as set out earlier in this judgment, it is clear that the fatal injuries must have been inflicted upon the deceased either by the unknown
74 assailant or by some other person before the deceased ran into Makepies's view. At best for the State, the unknown assailant dealt the deceased the two stab wounds in his back, which caused his death. The injuries that accused No 2 inflicted upon the deceased, as appears from Makepies's evidence, were located in the region of his head and upper chest, and the medical evidence shows that these did not cause or contribute causally to the deceased's death. In order to hold accused No 2 liable for the deceased's death, therefore, the State was required to prove that there was a common purpose to kill between accused No 2 and the unknown assailant. But Makepies's evidence does not justify such a finding. Makepies did not say that accused No 2 saw, or must have seen, the deceased being assaulted by the unknown assailant. A careful perusal of Makepies's evidence reveals that it does not exclude a reasonable possibility that when accused No 2 first saw the deceased lying prostrate on his back the

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unknown assailant had already ceased his assault and had stood back from where the deceased was lying. Accordingly there is a reasonable possibility that when accused No 2 approached the deceased he was unaware of the nature of the assault that had been perpetrated on the deceased, and that he was unaware that the deceased had been fatally injured. Conseguently there is no room for a finding beyond reasonable doubt that accused No 2, by assaulting the deceased in the manner in which he did, was making common cause with the unknown assailant or was actively associating himself with a murderous attack on the deceased. On the same basis, the State failed to prove the requisite mens rea on the part of accused No 2 to justify his conviction for the murder of the deceased.
It follows that accused No 2's appeal must be allowed in respect of all of the 5 counts on which he was convicted. He is liable, however, for his own assault, as such, cm the deceased in Count 1.
76 Although I have found that it is a reasonable possibility that he did not know that the decéased had been fatally injured, I consider that an inference is justified, beyond reasonable doubt, that he was aware that the deceased had been injured seriously enough to cause him to be lying on his back in an apparently helpless condition. That being so, the proper verdict in his case, in my judgment, is that he is guilty pf assault with intent to cause grievous bodily harm. The sentence to be imposed on him for this conviction will be considered later.
I turn now to the case of accused No 1. The State evidence against him is overwhelming. To begin with, there can be no doubt that he was the "senior man" amongst the shaft stewards, as one State witness put it, and that he was in fact their leader. Many State witnesses testified to this fact and they were not challenged on it in cross-examination. On the contrary, it was specifically put to the witness Daniel
77 Nkofu in cross-examination on behalf of accused No 1 that accused No 1 was the leader of the Union at that shaft of the mine, and the witness agreed. In another passage of his evidence Nkofu said that it was not the Union, as such, that wanted to kill the mpimpi's, but its leader, accused No 1. In his own evidence accused No 1 attempted to convey the impression that he was just an ordinary shaft steward and that he did not occupy any particular position amongst his colleagues, but he was obviously being untruthful in this regard. As to the meetings held before 18 February 1986, at which accused No 1 made speeches calling for the killing of the team leaders, the mass of the State evidence against accused No 1 is so weighty that his denial of it must be rejected as being false beyond reasonable doubt.

As to the events in the compound on the night in question, as I have mentioned before, seven of the State witnesses saw accused No 1 taking part in those
78 events at various places in the compound. Most of them observed him to be the leader of a group of men who were marching through the compound, dancing and singing songs calling for the mpimpi's to be killed. A few examples will suffice. On the first occasion when a group of people moved past room 12, from the kitchen towards block 8, Nhone saw accused No 1 in the vanguard of that group, wearing a yellow skipper with a picture on it of a man holding his fist aloft, and Nkuatsana described accused No 1 as the leader of that group; he was dancing and singing the songs which Nkuatsana heard, as described earlier. When Qhalisile came across the singing group of Union men between blocks 3 and 4, as described earlier, accused No 1 was their leader and he was waving his clenched fist in the air. Motjoli said that accused No 1 was constantly in front of the singing group that he encountered, as described earlier, and that he was leading them on.

With regard to the crucial events at room 12,
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two of the State witnesses directly implicated accused No 1 in participating in the attack. Daniel Nkofu was standing talking to some men in front of block 1, in the vicinity of room 5, which is close to the passagé-way nearest to the kitchen. He saw and heard a group of singing men moving towards room 12. There they stopped and some of them started to throw stones at room 12. Nkofu went up the stairs next to the passage-way where he had been standing, to the top floor of block 1 . There is a balcony on the top floor, extending for the length of the building along the front of the top rooms. Nkofu walked along the balcóny to a point almost directly above room 12, where he stood and observed what was taking place below him. There was a large group of men in front of room 12. Stones were being picked up and hurled at room 12, shattering the window panes. Nkofu saw accused No 1 at the head of the group of stonethrowers. There was an orange-coloured chair next to him. Nkofu saw him

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picking up this chair and hurling it at room 12. Then a fire broke out in the room. Nkofu went down the stairs to the back of the room, where he saw flames emerging from the room. He also saw Boy, the deceased in Count 2, climbing out of the back window of room 12. Amongst the many people at the back of the room was accused No 5 (now deceased). He saw accused No 5 coming to the fore and felling Boy with a single blow, whereupon many men set upon him and assaulted him. Nkofu left the scene to report at the "hospital" (he was referring to the medical station, I am sure) what he had seen and to say that he had not been injured in the attack on room 12 (it will be remembered that he resided in that room). The following morning, when he went to collect his belongings, he noticed that the orange chair that accused No 1 had thrown at the room, was inside the room, partly burnt out.

Ephraim, as mentioned earlier, went to room
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12 after he had witnessed the prior events at and in the vicinity of room 108 in block 4. He saw a crowd of people covering the open area between room 12 and the entrance gate, many of whom, he said, were merely spectators. He himself moved through the throng and took up a position near the front of room 11, right next to room 12. He saw a man dressed in a white overall lying on the ground in front of room 12. From other evidence, which I do not propose to detail, it can safely be accepted that this was accused No 8 (who was acquitted), who had earlier formed part of the group of men that had been active in the vicinity of block 4, and who sustained an injury in front of room 12, causing him to fall down there. Ephraim then saw accused No 1 , whom he described as "ons leier by the unie", standing on the stoep in front of the door of room 12. Accused No 1 was shouting: "Moet net nie mekaar beseer nie". After that he saw that accused No 1 opened the front window of room 12 by lifting it

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upwards. While the window was being held open, a number of men took an orange-coloured chair and thrust it through the open window to the inside of the room. Then a match was lit and thrown into the room, by one of the groupwhichhad caused the chair to be thrown into the room. Accused No 1 was part of that group. A fire immediately flamed up in the room. According to Ephraim, he then gained the clear impression that people were now being killed ("daar word nou doodgemaak"). He left the scene and returned to his room. I should add that Modise also witnessed the orange chair being thrown into the ropm, after which a flame shot up, but he did not see accused No 1 taking part in that activity.
Armando Eias, as mentioned earlier, was on duty as a mine policeman at the entrance gate. He heard a singing group of people roving through various parts of the compound. He saw them as they went from the direction of block 8 towards block 1. At room 12

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he heard the sounds of an attack being launched against that room. He went into a telephone booth and called a person to whom he referred as "the clerk on duty", to report the matter. He returned to his post and then saw flames emanating from room 12. He then returned to the telephone booth to make a second call. Room 12 was now on fire. He saw two men emerging from the crowd in front of the room, running towards the entrance gate. They passed him, while he was still busy with his call, and left the compound, running, through the pedestrian gate. The one man was accused No 1, who was known to him as the leader of the Union, and the other man was known to him as Colbert. Almost immediately after these two had gone through the gate, as Elias came out of the telephone booth, he saw that the crowd in front of room 12 were scattering, people running away in all directions. Elias himself fled from his post.

Accused No 1, as mentioned before, denied

84 that he was in the compound at all during that evening; his alibi was that he spent the night with Colbert Mtjelwa, whom he called as a witness in support of the alibi. Accused No 1's evidence was unsatisfactory in major respects. For instance, as to the reason why he was not in the compound: his case, as put to the State witness Pollack, was that he was afraid of spending the night in his room because he apprehended that violence would erupt as a result of the gathering of weapons by the team leaders; but when he came to testify, he denied that there was tension in the compound and his explanation of how it came about that he went to Mtjelwa's house reveals no trace of a suggestion that he did so because of fear of violence breaking out. But I do not propose to examine the criticisms that can be levelled at the evidence of accused No 1, nor that of Mtjelwa. The simple fact of the matter is that their evidence cannot possibly be true, in view of the overwhelming weight of the State evidence. Having

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regard to the broad canvas of the picture painted by the State witnesses, of which I have reproduced only scattered parts, it is quite inconceivable, in my judgment, that accused No 1 was falsely implicated in the events of the evening. In view of the nature of the evidence given by each of the State witnesses, the fact that all of them, bar Elias, were team leaders, is of no consequence, and the evidence of the odd man out, Elias, is ultimately the final straw in the total destruction of the alibi of accused No 1 and his witness Colbert Mtjelwa.
It follows that accused No 1's criminal responsibility for the events that occurred inside room 12 must be assessed on the basis of the State evidence against him, as set out above. Accepting as a reasonable possibility that accused No 1 did not himself enter the room or inflict injuries on any of the deceased or on Nhone, I have no doubt that the acts of the members of the mob who did inflict such injuries

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within the room must be attributed to accused No 1 and that he is criminally liable for the results of those acts as if he had committed them himself. All the prerequisites for holding him liable on the basis of a common purpose between himself and the perpetrators of the assaults in the room, as enumerated earlier in relation to the case of accused No 6, are satisfied beyond reasonable doubt. Accused No 1 actually led the mob in the attack against room 12 and its occupants, the object of which undoubtedly was to kill the occupants. Accused No 1's active association with the murderous attack of the mob is manifest, and it is equally clear that he had the requisite mens rea in the form of dolus directus.
It was argued on behalf of accused No 1 that he had dissociated himself from the mob violence before the commencement of the physical assault on the occupants themselves inside the room. In my opinion there is no substance in this argument. Two pieces of

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evidence were relied upon in support of it. The first was Ephraim's evidence that accused No 1 shouted: "Moet net nie mekaar beseer nie" . In my view this exhortation was clearly related to the fact that accused No 8, who was part of the group outside the room, had been accidentally injured. Accused No 1's warning could not possibly have been directed at the occupants of room 12, for immediately afterwards he was a party to the pushing of a chair into the room and the setting alight of a fire inside it. The second piece of evidence was Elias's statement that accused No 1 and Colbert Mtjelwa were the first to run away from the room and that they went out of the gate while the witness was still in the process of reporting the fire. It suffices to say, in my view, that this evidence, having regard to the context of the evidence as a whole, does not bear out the argument.

What has been said above regarding the imputing to accused No 1 of the assaults committed
88 inside the room applies to the victims in Counts 3, 4 and 5. It follows that the appeal of accused No 1 must fail in respect of his convictions for murder on Counts 3 and 4 and for attempted murder on Count 5.
Different considerations come into play, I consider, in regard to Counts 1 and 2. In respect of Count 1 it must be accepted as a reasonable possibility that the deceased in that count, Edward Masiane, had not been fatally injured before he succeeded in escaping from the room, and that his death was caused by the injuries inflicted on him by the unknown assailant in the scene witnessed by Makepies in the building complex to the east of blóck 1, as described earlier. It is possible, and indeed not improbable, that the unknown assailant had been one of the murderous mob at room 12 and one of those whom Nkuatsana saw pursuing the deceased in Count 1 as he was fleeing, but in my opinion that is not the only reasonable inference to be drawn from the evidence.

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The place where this deceased's body was found was some hundreds of metres away from room 12. I cannot exclude a reasonable possibility that the unknown assailant, having come across this deceased fleeing from the mob, decided to engage upon a venture of his own by pursuing the deceased and killing him. On this footing accused No 1 cannot, in my judgment, be held criminally responsible for the death of this deceased. Inherent in the concept of imputing to an accused the act of another on the basis of common purpose is the indispensable notion of an acting in concert. From the point of view of the accused, the common purpose must be one that he shares consciously with the other person. A "common" purpose which is merely coincidentally and independently the same in the case of the perpetrator of the deed and the accused is not sufficient to render the latter liable for the act of the former. In my judgment, therefore, accused No 1's appeal against his conviction for murder cm Count 1

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must be allowed.
On the same line of reasoning I have reached the same conclusion in regard to Count 2, albeit with some hesitation, for there the position is less clear. The deceased in this count, Boy, was killed where his body was found later, roughly 50 metres away from room 12, at the back of block 1. I described earlier how Nkofu witnessed his killing, after having been struck down by accused No 5. Nhone said that the group which came from the direction of block 8 split into two, one part going to the front of room 12 and the other to the back of it,/ and the trial Court found as a fact that that is what happened. In my opinion, however, the State did not prove beyond reasonable doubt that the mob at the front and the mob at the back of the room were but two sections of one crowd acting in concert. Nhone's evidence on the point seems to rest on mere conjecture. Nkuatsana's evidence that he saw a group of men approaching from the direction of block 2 when

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he escaped through the rear window, suggests the possibility that the group at the back of block 1 were men acting on their own, independently of those in front of the room. The evidence as a whole certainly does not show conclusively that there was only one group of trouble-makers marauding around the compound. It is true that accused No 5, who commenced the attack on this deceased, was seen at an earlier stage, when the stone-throwing commenced, at the front of room 12, by the witness Tshiame, but it does not necessarily follow from that fact that the groups at the front and at the back were acting in concert and not independently. It is a border-line situation, in which I think accused No 1 should be given the benefit of the doubt. I would therefore uphold his appeal against the conviction for murder on Count 2 also.

The discussion above of the position of accused No 1 in respect of Counts 1 and 2 has been based on considerations relating to liability founded

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on common purpose. For the sake of clarity I should add that I have given consideration to the question whether accused No 1 could be held responsible for the deaths of the deceased in these counts, apart from considerations relating to common purpose. I think not. I would merely say that, in my judgment, the facts of this case are distinguishable from those dealt with in the majority judgments in S v Nkombani and Another 1963 (4) SA 877 (A) and from those dealt with in the judgments of JANSEN JA and VAN WINSEN AJA in S v Daniëls en 'n Ander 1983 (3) SA 275 (A) at 330-333 and 312-314 (contra per TRENGOVE JA at 324-325 and per NICHOLAS AJA at 302-304).
From the finding that accused No 1 is not guilty of the murder of the deceased in Counts 1 and 2 it does not follow, however, that he has not committed any crime in respect of those deceased. In my judgment he is guilty of attempted murder on these counts. From the nature of the attack upon room 12

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and its occupants, and in the absence of any acceptable evidence to the contrary from accused No 1, the inference is justified beyond reasonable doubt, I consider, that the murderous attack of the mob, with which accused No 1 associated himself, was directed at the killing of all the occupants of the room at the time. There is no foundation for surmising that, if the deceased in Counts 1 and 2 had not succeeded in making good their escape from the room, they would not have been killed. Consequently a verdict of attempted murder should be brought in against accused No 1 on Counts 1 and 2.

The matter of extenuating circumstances in the case of accused No 1, with regard to Counts 3 and 4, and the sentences to be imposed on him in regard to the other counts, will be considered later.
I turn next to the case of accused No 3. Two of the State witnesses testified that he participated in the attack on room 12 and its inmates.
94 One was Nkuatsana. Earlier in this judgment, when I summarised his evidence, it was mentioned that he saw inflammable glue being applied to the door of room 12, which was then set alight, and that a motor car tyre was taken to the front of the room, where petrol or paraffin was poured over it and it was then set alight and pushed through the window into the room. Nkuatsana testified that the man who performed these acts was accused No 3. The other witness was Modise. When he arrived at the scene (he intended leaving the compound through the entrance gate), he found a huge crowd of people in the area between room 12 and the entrance gate. Caught up in the crowd, he stood and watched what was happening at room 12. He saw an orange-coloured chair being pushed into the room (as has been mentioned before) and that flames arose inside the room. Thereafter he heard people talking of a tyre and petrol. He saw accused No 3 fetching a tyre, which he took to the front of room 12. Something was

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poured onto the tyre, it was set alight and thrown into the room. Because of the throng of people in front of the room, Modise could not see who took part in these acts; he did not see accused No 3 participating in them. After the burning tyre had been pushed into the room, there was "groot rook, groot vlamme". Modise fled. It will be seen from the above summary of the evidence of Nkuatsana and Modise that the feature which is common to their observations as to the conduct of accused No 3, is that he took a tyre to the front of room 12. There is, however, a serious conflict in their evidence as to where the tyre was fetched from by accused No 3. I shall deál with this conflict in a moment. It will be convenient first to refer to the evidence of accused No 3.
The gist of accused No 3' s evidence was as follows. He was a shaft steward and he lived in room 10, block 1, i e one room removed from room 12. He knew most of the inhabitants of room 12 very well, and

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he was accustomed to playing cards with some of them. There were no feelings of animosity at all between himself and any of the residents of room 12. During the afternoon of the day in question he left the compound in the company of one Vincent, to see the regional chairman of the Union at shaft No 1 of the mine, in connection with the events that had taken place in the compound the day before, as related earlier. They returned to the compound in the evening. As they entered the compound, he noticed a group of men moving along block 8, going into some of the rooms there. He saw no signs of unrest or any commotion, and no people in front of, or near, his room. At the suggestion of Vincent, he accompanied him to his room, which was room 59, block 2. He saw people walking up and down, talking, coming from the other blocks. He stayed for some time with Vincent in his room. He then heard a noise; he said: "It was quite a din". He left Vincent' s room and went

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towards his own. As he approached it he saw "a multitude of people". He turned back and returned to Vincent's room. He stood there for some time. He then saw a group of men running past in front of block 3. He heard a security siren from the kitchen area. After a while he went to his room again, and found many security vehicles parked there. He denied the evidence of Nkuatsana and Modise in so far as it implicated him in the events at room 12.
At first sight it appears to be unlikely that accused No 3 would not have investigated further what was happening in the vicinity of his room when he saw the crowd of people there, after having heard the "din". But he gave an explanation for his apparent lack of interest, in response to questions put to him by one of the assessors, right at the end of his evidence. He said that when he saw the mob of people in front of room 12, he was upset; he considered the possibility of going there in order to try and defuse
the situation; but when he looked at the crowd there ("maar toe ek die groep so aangekyk het"), he came to the conclusion that it would not be advisable or safe for him to do so. In my opinion his explanation is not unacceptable. In the course of his cross-examination he occasionally became confused and contradicted himself, particularly in regard to the reason for his visit to the regional chairman. On the whoie, however, he was not shaken in regard to his movements in the compound that evening, and his evidence in that connection was not inherently improbable so as to render it suspect. In one collateral aspect of his evidence, I consider, he was untruthful: he admitted that he invariably acted as interpreter for accused No 1 at the Union meetings, but he denied that any threats were ever uttered against team leaders and he even denied ever having heard the word "mpimpi". In my view this part of his evidence must be rejected as false. But it does not follow,

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of course, that the rest of it was. To assess whether his denial of involvement in the events at room 12 could reasonably be true, his evidence must be weighed up against that of Nkuastsana and Modise.
I revert, then, to the conflict in the evidence of the two State witnesses as to the place from where accused No 3 fetched the tyre. In brief, the conflict was this. Modise, who testified first, said that accused No 3 fetched the tyre from a store-place which was used by the Shangaans for the storage of their belongings, and which was situated close to the entrance gate, being part of the line of small buildings and structures to which I referred earlier, as stretching for a short distance south-eastwards from the gate. When Nkuatsana came to testify, Modise's evidence on this point was put to him and he flatly denied it; he was adamant that the tyre had not been fetched from the store-place indicated by Modise (which was well known to him). His evidence was explicit:
100 the tyre was fetched from a quite different spot, namely a small store-place in front of room 12 and very close to it. Now on the face of it this discrepancy in the evidence of the two witnesses does not appear to be of any consequence. It is a matter of frequent experience that two witnesses who have observed the same events differ in their evidence in regard to the details of what they observed, simply because human nature is such that people do not take notice of, or do not remember, the same details of the events witnessed by them. More often than not discrepancies as to details do not detract from either the credibility or the reliability of the witnesses in regard to the central occurrence observed and testified to by them. The present case affords numerous examples of such a situation. One has been mentioned in discussing the case of accused No 6, where one witness said he was holding a stick and the other said he was not. Another, of a similar nature, will be mentioned below
101 in regard to the case of accused No 4. Others, I have not thought of sufficient importance to mention, or, where they have appeared from the summaries given of the evidence of various witnesses, to discuss. But in the case of the conflict between Modise and Nkuatsana which is now being examined, the position seems to me to be different, as will appear from what follows.
The store-place from which Nkuatsana said the tyre was taken by accused No 3 was, as I have mentioned, very close to room 12. It appears from the record that when Nkuatsana was making this observation as to accused No 3's movements, he was standing 8 metres away from room 12. He was emphatic in his evidence that when accused No 3 fetched the tyre he did not in fact leave the group of men who were directly in front of room 12. On his evidence, therefore, the tyre was fetched by accused No 3 practically from right in front of him. On his

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evidence, it is simply not possible that accused No 3 could have gone about 50 metres away to the entrance gate, to fetch the tyre. Modise, on the other hand, was standing at the second cluster of trees to the south-east of room 12, as described earlier, when, as he said, he first saw accused No 3, who was then running past him to the Shangaan store-place next to the entrance gate. It appears from the record that the cluster, of trees where Modise was standing is about 25 paces away from room 12. On Nkuatsana's evidence, Modise would not have seen accused No 3 at all. On Modise's evidence, Nkuatsana's evidence cannot be true. There is no way in which the evidence of the two witnesses can be reconciled; the two versions are mutually destructive. Nor is there any way in which the common feature of the evidence, viz that accused No 3 fetched a tyre, can be extricated from the rest of the evidence, as being the one fact that can safely be accepted as true. The reason why this cannot be done,
103 in the peculiar circumstances of this situation, is that the manner (being directly related to the place) of the fetching of the tyre is an integral, inseparable part and parcel of the description of each of the witnesses regarding the very participation of accused No 3 in the events. Moreover, there is no way in which the evidence of the one witness can be preferred to the evidence of the other. Nor, in my view, is there room for a genuine mistake on the part of either. The inevitable result is that a shadow of doubt is cast over both witnesses' account of the involvement of accused No 3 in the events. This doubt is heightened by two further considerations. The first is that no other witness made any mention of a tyre being used in the attack on room 12. The second is that there was no evidence that the remains of a burnt-out tyre were found in room 12. One would have expected police evidence about that, had it been a fact. In all these circumstances, the State case against accused No

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3 is materially defective.
Weighing up the evidence of accused No 3 against the evidence of Nkuatsana and Modise, my conclusion is that accused No 3's denial of complicity in the events could reasonably possibly be true. He is entitled to the benefit of the doubt.
It follows that the appeal of accused No 3 against his convictions and sentences on all 5 counts must be allowed.
I turn, finally, to the case of accused No 4. The evidence against him was brief but vivid. It was given by two witnesses: Tshiame and Motjoli. After Tshiame had watched the group of people moving from room to room in block 4, as described earlier, and they had left, going around block 3, he saw accused No 4, who came running from block 5. He was clad in a pair of under-pants and had a counterpane draped over his shoulder. In one hand he held a kierie and an assegai. He ran in the direction of the kitchen, but

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then turned and ran in the direction of block 1 . Tshiame, as has been mentioned, then went to block 1 himself, where he stood and watched the crowd in front of room 12. Amongst the crowd he again saw accused No 4. He was one of the stone-throwers. He still had the kierie and the assegai in his one hand. Tshiame saw him throwing stones with his other hand at the window of room 12. Tshiame then left the scene. Accused No 4 was next seen by Motjoli, who was standing at block 3, room 77. Motjoli saw accused No 4, coming from the direction of block 1, and running through the passage-way through block 2, nearest to the kitchen. At that stage Motjoli had already observed a cloud of smoke billowing up from room 12. Accused No 4 ran past him, where he was standing. He had a bed-sheet draped over his shoulder and he had two kieries with him. As he ran past Motjoli, he shouted: "Ons het hulle klaar gemaak, die mpimpi's". He then ran back in the direction of block 1.

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Accused No 4 denied the evidence against him. His evidence was very brief. He said that he was asleep in his room, which was room 89 in block 3. Before he had gone to bed, he had heard or seen nothing out of the ordinary in the compound. He was awakened by a noise of people shouting. He went outside and walked towards the kitchen. He saw many people running, being chased by security officials. He ran back to his room and went to sleep. He was a member of the Union and had attended meetings addressed by accused No 1, but he had never heard threats being made against team leaders, and he had never heard the word "mpimpi" before the trial. Because of the nature of accused No 4's evidence, there was very little scope for counsel for the State to cross-examine him. His evidence was challenged in cross-examination, but nothing of consequence emerged from it.

Although there is nothing intrinsically rejectable in the evidence given by accused No 4, his

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denial of the State evidence against him cannot, in my judgment, be true, as a reasonable possibility. It must be weighed up against the evidence of Tshiame and Motjoli. It is not a reasonable possibility that they conspired falsely to implicate accused No 4; the nature of their evidence rules that out. Nor do I consider it to be a reasonable possibility that they could have been mistaken in the observations to which they testified. The fact that the one saw accused No 4 carrying a kierie and an assegai, and the other saw him with two kieries, is of no consequence, in view of their evidence as a whole. There is no need to elaborate cm this, because of what I have said earlier about discrepancies of this kind. The two witnesses saw him in different places and at different times, and yet their evidence as to his conduct forms a composite picture with a very forceful impact of truthfulness and reliability. In my assessment it must be accepted as true beyond reasonable doubt.
108 On the basis of the evidence of Tshiame and Motjoli it is clear, in my opinion, by way of necessary inference, that accused No 4 made common cause with those who inflicted the injuries on the occupants of room 12 and that he is criminally responsible for the results thereof. He actively associated himself with the attack by throwing stones at the window of room 12. The notional possibility that his participation in and association with the assault on the inmates of the room may have ceased after the stone-throwing, is ruled out by his remark to Motjoli. The fact that the room had already been set alight by the time that he left the scene and ran past Motjoli, proves that he was aware of the murderous nature of the attack when he shouted the remark to which Motjoli testified. On the face of it, there was nothing ambiguous about that remark. In the absence of anything to suggest the contrary, he must have intended to include himself in the use of the word "ons", in relation to the fact that the mpimpi's

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had been "finished of f "; and the word "klaargemaak", in the circumstances preceding and then prevailing, again in the absence of anything to suggest the contrary, can only be taken to have meant that the mpimpi's in room 12 had been killed. The only reasonable inference that can be drawn from his remark is that he had not only associated himself with the killing, but also that he had the necessary mens rea to sustain convictions for murder and attempted murder.
It follows that accused No 4's appeal against his convictions on Counts 3, 4 and 5 must be dismissed. In regard to Counts 1 and 2, he is in the same position as accused No 1 . For the reasons discussed in the case of accused No 1 , the verdicts on Counts 1 and 2, in respect of accused No 4, must be changed from guilty of murder to guilty of attempted murder. I shall deal with the sentences on the various counts in relation to accused No 4 later.

Having now concluded my discussion of the

110 cases of all the accused with regard to their convictions, I proceed to consider the question of extenuating circumstances. In view of the conclusions reached above, this question remains a live issue only in respect of accused No 1, in relation to Counts 3 and 4.
The trial Court, having convicted all the accused on four counts of murder, heard argument on the matter of extenuating circumstances, whereafter the learned trial Judge delivered a judgment in which it was stated that the trial Court found that there were no extenuating circumstances in the case of accused Nos 1, 2 and 3, but that there were extenuating circumstances in the case of accused Nos 4, 6 and 7. The judgment on extenuation consists of three pages. In the first two pages the trial Judge summarized a large number of submissions made by counsel for the accused in support of the contention that extenuating circumstances were present in regard to all the

111

accused, including specifically, accused No 1. The

trial Judge also made brief reference to some

submissions advanced by counsel for the State. In the
last page of the judgment the findings of the trial
Court are stated. The statement commences thus:

"Ons betrag dus die toedrag van sake. In die geval van beskuldigde 1 het ons die getuienis as bewese dat hy die aanstigter was en alhoewel nie bewys is dat hy 'n spesifieke oorledene aangerand en daardie persoon se dood veroorsaak het nie, het beskuldigde 1 die dood van al die spanleiers in kamer 12 beoog en hy het aktief meegehelp dat van hulle deur ander persone gedood is."

Thereafter brief reference was made to the positions of
accused Nos 2 and 3, and this was followed by the

finding:

"Na ons eenparige mening word die morele verwytbaarheid van beskuldigdes 1, 2 en 3 in geen opsig in hierdie saak verminder nie."

The judgment concludes with a brief paragraph dealing
with accused Nos 4, 6 and 7.

It is apparent from the foregoing that the

trial Judge in f act gave no reasons f or the trial
112 Court's finding that no extenuating circumstances existed in the case of accused No 1. The one sentence of the judgment in which reference is made to accused No 1, as guoted above, does not constitute reasons for the Court's finding. Not a single submission made by counsel for the accused was discussed. Assuming that the trial Court considered and rejected counsel's submissions, no reasons were stated for rejecting them.
The unfortunate result is that this Court is now obliged to consider the question of extenuating circumstances afresh, in the light of the evidence on record (see S v Masuku and Others 1985 (3) SA 908 (A) at 912).

The approach to be adopted is well known. I

quote the formulation of it by CORBETT JA in S v Nqoma
[1984] ZASCA 59; 1984 (3) SA 666 (A) at 673 G-I:

"The determination of the presence or absence of extenuating circumstances involves a three-fold enquiry: (1) whether there

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were at the time of the commission of the crime facts or circumstances which could have influenced the accused's state of mind or mental faculties and could serve to constitute extenuation; (2) whether such facts or circumstances, in their cumulative effect, probably did influence the accused's state of mind in doing what he did; and (3) whether this influence was of such a nature as to reduce the moral blameworthiness of the accused in doing what he did. In deciding (3) the trial Court passes a moral judgment."

I proceed to deal separately with each of the

grounds for extenuation advanced by counsel cm behalf
of accused No 1 in this Court.

(1) Counsel argued that the form of mens rea

proved on the part of accused No 1 was no
more than dolus eventualis. I do not
agree. The argument loses sight of the facts
that accused No 1 had himself exhorted the
workers that the team leaders should be
killed, that that was his theme song on that
very evening, and that he, against that
background, then proceeded to lead the mob on

114 to the ferocious attack on room 12 and its occupants. The only reasonable inference to be drawn from these facts, in the absence of evidence to the contrary from the accused himself, is that accused No 1's direct object was to have the victims murdered.
(2) It was pointed out that accused No 1 had not himself physically assaulted any of the victims. We do not know that that is so, but even if it is assumed to be a fact, I do not consider that it can serve to diminish his moral blameworthiness, having regard to the fact that he was the leader of the murderous attack.
(3) It was argued that accused No 1 had tried to control the attackers by warning them not to injure people. I have already dealt with the evidence in that regard; as has been pointed out, accused No 1's warning could not
possibly have been intended to apply to the men who were inside the room.
(4) Reliance was placed on the fact that accused No 1 was one of the first to desist from the attack. In the absence of any evidence from him, we do not know why he departed from the scene, when he did. A possible reason, which is no less probable thán any other theory, is that he departed solely in order to minimize the risk of his being caught in the act.
(5) Counsel argued that there was no premeditated plan or intention to kill. This argument merits careful examination. A premeditated plan or intention to kill cannot be inferred from the inflammatory and threatening speeches made by accused No 1 at the Union meetings, I think, because these had been occurring for a considerable length of time,

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nothing had come of them, and they seem to
have been used as a means of intimidation
rather than as threats of actual and imminent
action to follow. Nor do I think that an
inference of the existence of a premeditated
plan or intention to kill the inmates of room
12, until relatively shortly before the fatal
attack commenced, can properly be drawn from
the preceding events of that evening. I say
this because the roving group under the
leadership of accused No 1 had entered
several rooms of team leaders (such as room
108), and had indeed also "visited" room 12
itself, without any indication of the
execution of the threats of killing having
been given. The prior conduct of the
roving group is consequehtly consistent with
a mere plan or intention to intimidate the
team leaders by a show of force, as it were.

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It is to be noted also that a number of the
State witnesses said in their evidence that,
despite the intimidatory actions of the group

before the actual attack on room 12 started, they did not expect actual violence to occur. Aparently this kind of thing had happened so often before that they did not take the threats seriously. I am disposed to agree, therefore, with counsel's argument that a plan or intention to kill the occupants of room 12 had not taken shape as an actual fact until shortly before the attack commenced. However, that circumstance, in itself, is not extenuating. It has freguently been held that absence of premeditation does not per se constitute an extenuating circumstance. Whether or not it does, in any particular case, depends on all the surrounding circumstances, and the question must be
considered in the light of the general approach stated in the above quotation from Nqoma's case. In the present case, as a matter of probability, the decision to launch a murderous attack on room 12 and its inmates must have been taken, or the intention to do so must have become manifest, when the group under thê leadership of accused No 1 was in the vicinity of block 8, prior to its moving on to room 12, or, at the latest, while it was in the process of moving from block 8 to room 12, for it is clear on the evidence that when the group arrived at room 12 the vicious attack commenced immediately and without further ado. In order to assess the effect of these facts on accused No 1's moral blameworthiness it is necessary to examine the possible reasons for the group's embarking on the attack. This requires a
119 consideration of the further submissions made by counsel, discussed in the following two paragraphs. (6) Counsel argued that something must have happened to spark off the attack. To the extent that the argument suggests that something unforeseen or unexpected had happened to excite the mob into violent action, it rests on pure conjecture. And here, indeed, lies the major problem in the way of ccunsel's argument. Accused No 1 bore the onus of proving, on a balance of probabilities, the existence of extenuating circmstances, but he gave no e/idence regarding his state of mind or mental faculties, or influences operating thereon, at the critical time. Of course regard must be had to such evidence as is available, but mere speculation or conjecture cannot avail
120 the accused. To demonstrate the problem facing counsel's argument, one can postulate the following possibility: that accused No 1, while the men he was leading were conferring at block 8, decided that the time for mere intimidation had passed, that the men were in such an excitable and aggressive mood that the occasion was ripe for violent action, and that he then cold-bloodedly urged the men on to kill the mpimpi's in room 12. If that had happened, obviously the absence of premeditation would be irrelevant. The possibility postulated is mere conjecture, of course, but it underscores the lack of evidence pointing to any probability to the contrary. (7) In an attempt to overcome this problem, counsel advanced various reasons for the mob having gone on the attack. First, he

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mentioned mass hysteria. That, again, is pure speculation, in particular with reference to accused No 1, who was the leader of the group. He could have incited hysteria in the other men, but, if anything, it is improbable that he himself would have succumbed to mass hysteria. Secondly, counsel mentioned provocation. There is no suggestion of that in the evidence; on the contrary, the evidence shows that no resistance was offered to the intrusions of the group into rooms of team leaders anywhere in the compound. Thirdly, counsel suggested that the people simply lost control over themselves. Once again, this is no more than speculation, especially with reference to accused No 1, who, by all accounts, appears to have been perfectly cool and collected and in full control of himself.

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For these reasons the absence of premeditation cannot, in my judgment, qualify as an extenuating circumstance in regard to accused No 1 in this case. (8) Counsel submitted that the underlying tension and feelings of animosity and ill-will between shaft stewards and team leaders diminished accused No 1's moral blameworthi-ness. I do not agree. Accused No 1 was not uneducated and he occupied a position of responsibility in the Union. Exercising a moral judgment, the rivalry and struggle for power between the two sections of the community in the compound, and such tension and feelings of hostility as may have been engendered thereby, cannot serve to render his conduct less blameworthy. I should add that, in any event, there is no evidence, and in the absence of it, no probability, that

123

these matters exercised an influence on accused No 1's mind of such a nature as to reduce his blameworthiness. (9) Finally, counsel referred to the events of the previous day, when accused No 1 was frustrated in his attempt to have the rooms of team leaders searched for weapons, and to his desire that the team leaders should be disarmed in order to obviate an attack on the shaft stewards, and it was submitted that accused No 1 succumbed to the temptation of taking the law into his own hands. In the absence of evidence to that effect from accused No 1, it cannot be found on the probabilities that these matters operated on his mind in a manner that could constitute extenuation.

Looking at the cumulative effect of the matters discussed above, as I am required to do, my
124 conclusion is that no extenuating circumstances have been proved. It follows that accused No 1 's appeal against the death sentences imposed upon him in respect of Counts 3 and 4 must fail.
Turning now to the sentence of 15 years' imprisonment imposed on accused No 1 on Count 5, I consider that sentence to be excessive. Had I been called upon to pass sentence on that count in the first instance, I would have imposed a sentence of 10 years' imprisonment. The disparity is sufficiently striking to warrant interference by this Court. As to Counts 1 and 2, where convictions for attempted murder are to be substituted for the trial Court's convictions for murder, the ultimate fate of the deceased in these counts must be left out of consideration in deciding upon an appropriate sentence. I consider a sentence of 6 years' imprisonment on each count to be appropriate. These sentences will be ordered to be served concurrently with the sentence on Count 5.

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Next, I must deal with the sentence to be imposed on accused No 2 in respect of the convicton for assault with intent to do grievous bodily harm, which is to be substituted for the trial Court's conviction of this accused for murder on Count 1. Having regard to accused No 2's clean record and personal circumstances favourable to him, I consider an appropriate sentence to be one of 18 months' imprisonment. I do not propose, however, to impose that sentence, for the following reasons. Accused No 1 was sentenced to death on 12 May 1987. That means that he has by now spent about 16½ months in the death cell. A sentence of imprisonment imposed by this Court for an offence other than the one for which the accused was sentenced by the Court a quo cannot be antedated in terms of section 282 of the Criminal Procedure Act 51 of 1977; the wording of the section does not permit of its application in the circumstances of this case. This appears to me to be a serious

126

deficiency in the provisions of the Act, 'which requires the urgent attention of the Legislature. The Court has no power to antedate a sentence otherwise than in accordance with the provisions of the section (see S v Hawthorne en h Ander 1980 (1) SA 521 (A) at 524). The result is that if this Court were now to impose a sentence of imprisonment of 18 months, that sentence would commence to run f rom the date of this judgment , and no effect can be given to the time that the accused has already spent in prison. This is a result that I am not prepared to countenance. If the time already spent in prison by the accused is taken into account in the sentence to be imposed now, by making a deduction from the period of imprisonment to be fixed, the sentence will be artificial and will create a false impression on the accused's record of previous convictions in the future. In the interests of justice, however, I cannot see how that undesirable result can be avoided. Consequently I intend to

127

impose a sentence of 30 days' imprisonment on accused No 2 for the conviction which is to be recorded on Count 1 in place of that of the trial Court.
In the case of accused No 4 the trial Judge imposed a sentence of 10 years' imprisonment on each of the five counts, to be served concurrently. In respect of Counts 3 and 4 I can find no sufficient warrant for interfering with the sentences. In respect of Count 5, having regard to the reduction of accused No 1's sentence on that count, as mentioned above, I consider that accused No 4's sentence should be reduced to one of 6 years' imprisonment. In regard to Counts 1 and 2, where the convictions are to be altered to attempted murder, I think that a sentence of 4 years' imprisonment on each count would be appropriate. All these sentences will be ordered to run concurrently.

Finally, I refer to accused No 6. A single conviction for public violence is to be

128

substituted for all the convictions of the trial Court.
Having regard to his clean record and personal
circumstances, and to the nature of his offence, I
consider a sentence of 3 years' imprisonment to be

appropriate. In his case, however, the same
difficulty exists as in the case of accused No 2 in
regard to the impossibility of antedating the sentence.
Accordingly I propose to impose a sentence of 18
months' imprisonment on him.

The order of the Court is as follows:

1 . Appellant No 1 (Accused No 1 in the Court a quo):-

(a) Counts 3 and 4:

The appeal against the convictions for murder and the death sentences imposed on these counts is dismissed.

(b) Counts 1 and 2:

The appeal against the convictions for murder and the death sentences imposed on these counts is allowed to the extent that such convictions and sentences are set aside and there is substituted therefor on each of these counts a

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conviction for attempted murder and a sentence of 6 years' imprisonment, such sentences to be served together and concurrently with the sentence imposed on Count 5.

(c) Count 5:

(i) The appeal against the conviction for attempted murder on this count is dismissed.

(ii) The appeal against the sentence of 15 years' imprisonment on this count is allowed to the extent that the sentence is altered to one of 10 years' imprisonment.

2. Appellant No 2 (Accused No 2 in the Court a quo):-

(a) Count 1:

The appeal against the conviction for murder and the death sentênce imposed on this count is allowed to the extent that such conviction and sentence are set aside and there is substituted therefor a conviction for assault with intent to do grievous bodily harm and a sentence of 30 days' imprisonment.

(b) Counts 2, 3, 4 and 5:

The appeal against the convictions and sentences imposed on all these counts is allowed; all the convictions and

130
sentences on these counts are set aside.

3. Appellant No 3 (Accused No 3 in the Court a
quo):-

Counts 1, 2, 3, 4 and 5:

The appeal is allowed in its entirety; all the convictions and sentences on all of the counts are set aside.

4. Áppellant No 4 (Accused No 4 in the Court a
quo):-

(a) Counts 3 and 4:

The appeal against the convictions for murder and the sentences of 10 years' imprisonment imposed on each of these counts, to be served concurrently, is dismissed.

(b) Counts 1 and 2:

The appeal against the convictions for murder and the sentences of 10 years' imprisonment imposed on these counts is allowed to the extent that such convictions and sentences are set aside and there is substituted therefor on each of these counts a conviction for attempted murder and a sentence of 4 years' imprisonment, such sentences to be served together and concurrently with the sentences on Counts 3 and 4.

(c) Count 5:

(i) The appeal against the conviction for attempted murder on this count is dismissed.

(ii) The appeal against the sentence of 10 years' imprisonment on this count is allowed to the extent that the sentence is altered to one of 6 years' imprisonment, which is ordered to be served concurrently with the sentences imposed on Counts 3 and 4.

5. Appellant No 5 (Accused No 6 in the Court a
quo):-

Counts 1, 2, 3, 4 and 5:

The appeal is allowed to the extent that the convictions and sentences imposed on all of the counts are set aside and there is substituted therefor a single conviction for public violence and a sentence of 18 months' imprisonment.

6. Appellant No 6 (Accused No 7 in the Court a
quo):-

Counts 1, 2, 3, 4 and 5:

The appeal is allowea in its entirety; all the convictions and sentences on all of the counts are set aside.

A.S. BOTHA JA

SMALBERGER JA
CONCUR STEYN JA

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