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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)           REPORTABLE: NO

(2)           OF INTEREST TO OTHER JUDGES: NO

 

CASE NO: A130/2017

27/8/2018

 

In the matter between:

 

MATSOBANE ELIAS LETSOALO                                                                           Applicant

 

and

 
THE STATE                                                                                                                  Respondent

JUDGMENT

 

MNGQIBISA-THUSI J

[1]        The appellant, together with three co-accused were arraigned in the Regional Court sitting at Pretoria North on a charge of murder read with the provisions of Section 51 of Act 105 of 1997. The appellant was convicted as charged and sentenced to 15 years imprisonment. The appellant was also declared unfit to possess a firearm in terms of s 103 of the Criminal Procedure Act[1].

[2]        The appellant appealed against both conviction and sentence which leave to appeal was refused by the court a quo. On petition, he was granted leave to appeal against the conviction only.

[3]        In brief, the charges emanate from the death of the deceased on 3 August 2008 where the deceased was brutally attacked and killed by a group of people in what could be described as an incident of "mob justice".

[4]        The post mortem was performed by Dr Percival Dubase who found that the deceased had died as a result of a head injury which had been inflicted by a blunt object. Although the post mortem report and exhibits were handed in during the plea proceedings, the appeal record did not contain the documents.  The parties agreed that the appeal could proceed without the said documents.

[5]        The common cause facts are that:

5.1       The contents of Exhibits "N to "G" being part of the post mortem report were formally admitted in terms of Section 200 of Act 51 of 1977 at the start of the trial proceedings;

5.2       The appellant was present at ''the first scene" of the assault on the deceased and that he also assaulted the deceased.

 

[6]        The Issues in the matter are whether it could be said that the appellant withdrew from the common purpose that existed between the attackers who perpetrated the fatal assault on the deceased and whether the appellant was involved in the "seco n d assault" where the deceased was further assaulted.

[7]        The evidence of Mr David Mashakeng, the first state witness, was that he observed the appellant and accused' 2 chasing the deceased. They then caught up to him and began to assault him. The appellant then went to his house and returned with a sjambok with which he continued to assault the deceased. Accused 3 then joined the assault with a knobkierie. The deceased was then tied up and the appellant and accused 2 left the scene after the deceased had been place on a bakkie on the understanding that he was being taken to the Police Station.

[8]        The evidence of Mr Mashakeng was not seriously challenged in cross-examination and when it was put to him that the appellant only hit the deceased twice, denied this version.

[9]        This evidence was corroborated by the evidence of Ms Maria Raisibe Rakomako who was also present when the deceased was tied up and put onto the vehicle that left the "first scene" with the deceased.

[10]      The appellant testified in his own defence that he was in the presence of accused 2 when the deceased was stopped by accused 2. He testified that there were other community members present who suspected that the deceased had committed various crimes. He testified that the deceased was assaulted but did not testify by whom in particular. He merely confirmed that he did participate by assaulting the deceased with a sjambok. His further evidence was that the deceased was driven from the scene of the first assault by accused 2 ostensibly to take him to the police station.

[11]     The appellant testified further that he followed accused 2 in another vehicle but accused 2 changed direction and went to the house of accused 4 (who died during the course of the trial) where the deceased was further assaulted in his presence. No further witnesses were called by the appellant.

[12]     Accused 2 and accused 3 testified in their respective matters and placed differing versions of the incident before the court a quo.

[13]       In convicting the appellant and accused, the Magistrate said the following:

“And regard also being had to the fact that the injuries are concentrated on the head and face accused 1 and ac used 2 must have at that stage when they further assaulted the deceased foreseen the possibility that the deceased might die as a result of their conduct coupled with the conduct of the erstwhile deceased accused 4. But they proceeded with reckless abandon. That said I find accused 1, accused 2 and the deceased accused 4's conduct at the second scene is causally connected or contributed to the death of the deceased in this matter."[2]

 

THE LAW

[14]      The doctrine of common purpose has been defined as follows:

"The essence of the doctrine is that if two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, the conduct of each of them is imputed to the others."[3]

 

[15]      If, as is more often so, there is no proof of a previous agreement, the following requirements must be met:[4]

(i)         the perpetrator must have been at the scene of where the violence was being committed;

(ii)       the perpetrator must have been aware of the assault on the complainant or deceased by someone else;

(iii)       the perpetrator must have had the intention to make common cause with those committing the crime;

(iv)       the perpetrator must have committed some act of association with the conduct of the others;

(v)        the perpetrator must have intended to kill the deceased.

 

[16]      It is trite that a court of appeal will only interfere where the trial court materially misdirects itself insofar as its factual and credibility findings are concerned. The court held in the matter of S v Francis[5] that:

"The powers of a court of appeal to interfere with the findings of fact of a trial court are limited. In the absence of any misdirection the trial courts conclusion, including its acceptance of witness' evidence is presumed to be correct. In order to succeed on appeal, the appellant must therefore convince the court of appeal on adequate grounds that the trial court was wrong in accepting the witness' evidence - a reasonable doubt will not suffice to justify interference with its findings. Bearing in mind the advantage which a trial court has of seeing, hearing and appraising a witness, it is only in exceptional cases that the court of appeal will be entitled to interfere with a trial court's evaluation of oral testimony.”

 

[17]       The court in the matter of S v Hadebe and Others[6] held that:

".. .in the absence of demonstrable and material misdirection by the trial court, its findings of fact are presumed to be correct and will only be disregarded if the recorded evidence shows them to be clearly wrong."

 

[18]      Active association on the crime scene itself is only required in circumstances where there was no prior agreement between the parties before the commission of the offence.

[19]      In the matter on hand, it is accepted that there was no prior agreement between the appellant and other perpetrators to murder of the deceased. The question that needs to be interrogated is whether the appellant actively associated himself with the death of the deceased. It has to be ascertained whether on the totality of the evidence tendered it has been proven that the appellant had the necessary mens rea in the form of do/us to commit the offence of murder that he has been convicted of.[7] In this regard, it is not necessary for the State to prove that there was a prior agreement specifically to murder the deceased.

[20]      On the evidence before this court, the appellant viciously assaulted the deceased at the "first scene". He furthermore assisted in tying up the deceased and putting him on the bakkie that transported him to the scene of the second assault. It is common cause that he went to the scene of the second assault although there was conflicting evidence presented as to whether he went in the bakkie or followed in his car.

[21]      The appellant denied that he participated in the further assaults on the deceased at the "scene of the second assault". On his own version, he failed to prevent further assaults on the deceased by merely standing and observing the assaults. He also failed to ask the crowd to desist from further assaults on the deceased.

[22]      The Magistrate correctly identified two separate scenes. However, one should be cautious in evaluating evidence in a 'piece-meal' fashion. The respondent submitted that the deceased was essentially assaulted and killed in one incident with the appellant actively participating. Applying the doctrine of common purpose, it matters not who inflicted the fatal blow upon the deceased as the conduct of each perpetrator is impugned to the other.

[23]      Whilst no direct evidence was adduced that the appellant assaulted the deceased on the second scene, I am of the considered view that the Magistrate correctly found that the requirements as set out in the Mgedezi matter (supra) were present:

(i)        the appellant was present at the scene of the second assault;

(ii)       by his own admission, he was aware of the assault by his co-perpetrators;

(iii)      although he may not have intended to make common cause with the assailant, he actively associated himself with the death of the deceased;

(iv)       he committed an act of association with the c-perpetrators in his failure to do anything whilst the deceased was being assaulted at the second scene;

(v)        he had the necessary mens rea in the form of dolus to commit the offence of murder.

 

[24]       In the circumstances, the following order is made:

(i)        the appeal against conviction is dismissed;

(ii)       The conviction by the court a quo is confirmed.

 

 

 

MNGQIBISA-THUSI J

Judge of the High Court of South

Africa Gauteng Division,

Pretoria

 

 

I agree and is so ordered

 

 

 

MOKOSE AJ

Acting Judge of the High

Court of South Africa

Gauteng Division, Pretoria

 

 

For the Appellant:

Adv AC Klapper instructed by

Moldenhauer Attorneys

 Pretoria North

 

 

For the State:

Adv PW Coetzer instructed by

The Office of the Director of Public Prosecutions Pretoria

Pretoria

 

 

Date of hearing:       4 June 2018

Date of judgement:  27 August 2018

 

 

 

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