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IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)

CASE NO: 404/90 In the appeal of

JOSEPH NROSI FIRST APPELLANT
JOSEPH MPHUTI SEOOND APPELLANT
and
THE STATE RESPONDENT

Coram: SMALBERGER, NESTADT JJA et PREISS AJA

Date heard: 21 May 1991 Date delivered: 28 May 1991

2 JUDGMENT

PREISS AJA:

During the early evening of Friday, 24 June 1988, the first appellant (accused No. 1), and the second appellant (accused No. 2) and a friend, Johannes Themba Boyana (Boyana), visited a house in Lawley, an area consisting of plots situated near Westonaria in the Transvaal. There they consumed several bottles of beer. According to Boyana they decided to go on to another party at Lenasia South. It was then shortly after 6 p.m. While walking along the tarred road which leads to Lenasia South they hailed a passing Combi and sought a lift. The Combi was being driven by George May(the deceased) who was accompanied by his cousin,

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3 Edward Manuals (Manuals). They were on their way to visit relatives in the area before leaving on a business trip to Qwa-Qwa to deliver a consignment of furniture.

The deceased agreed to take the three passengers to their destination for a stipulated fee. No. 1 took a seat in the second row behind the deceased; No. 2 sat next to him and behind Manuals. Boyana sat on his own in the third row.

No. 2 was in possession of a 9 mm automatic pistol which was fully loaded. He carried it with him that evening. It then found its way into the possession of No. 1 . There are two conflicting accounts regarding its transfer. Boyana says that No. 2 handed it to No. 1 before they boarded the Combi because he was so dressed that he could not effectively conceal it in his clothing. In the magistrate's court, after his arrest, No. 1

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said that it was handed to him by No. 2 while they were in the

Combi and immediately before he fired it. In my view this conflict is immaterial; what is important is that it was fired by No. 1 . I shall in due course indicate my reasons for this finding.

While the Combi was travelling towards the destination indicated by the passengers, No. 1 directed the driver to take a short cut along an unfrequented and untarred road. The Combi arrived at a lonely place near Lawley Dam whereupon Boyana asked the deceased to stop so that he could get out and urinate. The Combi stopped and Boyana got out. The deceased must have suspected that some unlawful act was afoot. He opened the glove compartment, removed a pistol from the compartment and placed it on the front seat between them. It was a toy pistol but apparently a realistic immitation of a firearm. The deceased presumably hoped that it would deter any wrongdoer. Unfortunately for him it had the

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5 opposite effect.

The moment the toy pistol was taken from the glove compartment and placed on the front seat No. 1 fired a single shot at the deceased from his position in the second row. It penetrated the skull of the deceased from behind and emerged near the right eye. No. 1 then pointed the firearm at Manuals and pulled the trigger, but the weapon misfired. Manuals, no doubt as a result of this unexpected and terrifying development, grabbed the toy pistol and pointed it, not at No. 1, but at No. 2, who was sitting behind him. No. 2 wrested the toy pistol from his grasp. At that moment the deceased fell towards his left and finished up virtually on Manuals' lap. With courage born of desperation, Manuals snatched the ignition key from the dashboard, opened the passenger door and ran off into the darkness. No. 1 emerged from the vehicle, crouched on his haunches and fired two shots at the fleeing Manuals. One of the shots grazed his scalp and caused a

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superficial wound.

No. 1 ahd No. 2, according to Boyana, who were some distance away from the Combi, went back to where Boyana was standing and then went back to the Combi while Boyana remained where he was. They rejoined him after a short interval whereupon all three left the scene. The Combi, with the deceased lying on the front seat, remained at this lonely place.

Manuals, in the meantime, had reached a house and managed to telephone members of his family. His message was garbled but sufficiently coherent to alert an uncle, Jonathan May, who took a motor car and hastened to the house where Manuals was waiting. Manuals, quite understandably, was in a state of near hysteria but was able to direct his uncle to the place near Lawley Dam where the Combi still stood. The deceased, still alive, but clearly in a serious condition, lay along the front seat in a

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7 pool of blood. His back pocket had been emptied and his

identification book and spectacles were found near the Combi. He
was rushed to the Coronation Hospital but died later that night
as a result of the shooting.

The police who had been summoned to the scene recovered a cartridge case and a bullet casing at the scene. When No. 2 was arrested, the 9 mm pistol was found in his home. Ballistic tests confirmed that the cartridge case and the casing tallied with the firing mechanism of the pistol. The police were able to effect the arrests because Manuals knew No. 1, and No. 1 in turn led the police to No. 2 and Boyana. Boyana was initially charged but at the eventual trial of No. 1 and No. 2 he featured merely as a State witness.

No. 1 and No. 2 were arraigned in the Witwatersrand Local Division before M.J. Strydom J and assessors on five counts,

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consisting of the following:

COUNT 1: Murder, by reason of the shooting of the deceased;
COUNT 2: Attempted murder committed upon Manuals;
COUNT 3: Robbery with aggravating circumstances arising from the

emptying of the pockets of the deceased and the removal

of R30 in cash and other unknown items; COUNT 4: The unlawful possession of a firearm, i e the 9 mm
automatic pistol; and COUNT 5: The unlawful possessión of ammunition.

On all five counts No. 1 pleaded not guilty and on Counts 1,2 and 3 No. 2 pleaded not guilty. In respect of Counts 4 and 5, No. 2 pleaded guilty. At the conclusion of the evidence the trial court convicted both accused on all five counts. On the count of murder, each of the accused was sentenced to death; no extenuating circumstances were found. On the remaining counts

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the accused were sentenced to varying terms of imprisonment. In
the case of No. 1 he was sentenced to 4 years imprisonment on the count of attempted murder and 4 years imprisonment for robbery with aggravating circumstances; in respect of the unlawf ul possession of a firearm and of ammunition he was sentenced to imprisonment for one year and for three months respectively. Some of the sentences were ordered to run concurrently, resulting in an effective period of imprisonment of 8 years. In the case of No. 2 he was sentenced to 5 years imprisonment for attempted murder (an increase over No. 1's sentence because of his record of previous convictions), and to 4 years imprisonment for robbery with aggravating circumstances; in regard to the unlawful possssion of a firearm and of ammunition he received the same sentence as No. 1, namely imprisonment for one year and for three months respectively. The sentences were so arranged by an order that some of them run concurrently that the effective period of imprisonment was 9 years.

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The court a quo granted No. 1 leave to appeal against each conviction, including the finding that there were no extenuating circumstances on the murder count, namely, Count 1. No. 2 was granted leave to appeal on the same basis, save for Counts 4 and 5 in respect of which he had pleaded guilty.

My above analysis of the evidence is not based entirely upon undisputed testimony. I propose therefore to indicate how I arrive at my conclusions. Counsel for the appellants relied principaily upon the submission that the two eye-witnesses, Manuals and Boyana, should, for differing reasons, be rejected as unreliable and that the convictions should accordingly be set aside.

I commence with Manuals. His account conflicts with Boyana's on a number of issues. He gave a figure for the stipulated fare

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which differs from Boyana's. His description of the manoeuvre executed by the vehicle driven by the deceased when the threë passengers were picked up is not supported by Boyana's version. Furthermore, Manuals was extremely vague about the position taken up by his assailants when shots were fired at him and generally about the sequence of events immediately before he fled from the scene.

The trial court commented favourably upon Manuals as a witness. It was alive to the above discrepancies but found him to be an honest witness. His vagueness was attributed to his relative inability to express himself with precision. I see no reason to depart from this conclusion; the well-known advantage enjoyed by the trial court in assessing the quality of a witness is a further ground for my concurrence. Due allowance must also be made for the following relevant considerations - the events took place in a dark, isolated area and over a brief interval; the

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shootings were sudden and unexpected, and undoubtedly terrifying.

Manuals was found in a state bordering upon hysteria. When he gave his evidence it was obvious that he was re-living his terrifying ordeal. Finally, the differences between his version and Boyana's were regarded by the trial court as inconsequential and immaterial. I agree.

Boyana's testimony must be approached on a different basis. He was called as a State witness but his participation as a member of a gang of three is not unlikely. There is a disquieting pattern about the entire enterprise - the carrying of a firearm by one of them, the directing of the Combi on to a lonely and unfrequented path, the stopping of the Combi by Boyana in order, as he says, to urinate (although he had urinated no more than ten minutes before) - all point toward the possibility of a pre-planned unlawful expedition. The trial court was alive to this possibility. Not only was Boyana treated as an accomplice but the

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court went so far as to make a finding that there had been such

pre-planning.

It is necessary to analyse this finding for two reasons. In the first place it relates directly to Boyana's creditworthiness since he said nothing about a pre-planned operation, and was even at pains to distance himself from any participation in an unlawful enterprise. Secondly, and more importantly, it has a vital bearing upon the conviction of No. 2 on the counts of murder (Count 1) and attempted murder (Count 2). On these two counts No. 2 was convicted upon the ground of common purpose, founded upon the existence of the pre-planned enterprise. Should it be found that there was no prior planning, these convictions cannot stand.

The features which constitute grounds for the existence of prior planning must be considered one by one, and then cumulatively.

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The first is the carrying of a weapon by one of them; that, in
itself, is a suspicious feature but not necessarily indicative of prior planning. The Combi was hailed by the three pedestrians but Boyana states that it was for the purpose of going to a second party at Lenasia South; his evidence to this effect is not seriously challenged. The Combi was then directed by No. 1 to a dark and isolated route. Had this been a dead-end path, there might have been more substance to a sinister interpretation; nevertheless, it may have been a short-cut, as No. 1 suggested. In the absence of any evidence on this issue, it remains no more than a suspicious feature. Boyana' s act in halting the taxi in order to urinate is strange but inconclusive. He had drunk a fair guantity of beer and may well have írequired to empty his bladder at frequent intervals. Moreover, this issue was never taken up with him. The fact of a removal of cash from the pocket of the wounded driver could equally have been the result of an impulsive decision once the victim had been immobilised by the

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15 shooting. And the shooting seems to have been precipitated by

the appearance of the realistic toy gun. (I shall have more to

say about this feature later.)

There are a number of features which point the other way, namely, against the existence of a prior plan. Boyana testified that after the shooting No. 1 and No. 2 fled from the Combi and only returned to it when No. 2 suggested that they go back to see what they could find; this is inconsistent with a completed plan to rob. It is also worthy of comment to observe that the State's summary of material facts which accompanied the charge-sheet makes no mention of such plan. Finally, and most significantly, Boyana's evidence is singularly free from any suggestion of such plan, and his possible participation in a pre-planned undertaking was, if anything, hardly canvassed. True, No. 2 failed to testify. That notwithstanding, I am of the view that the existence of a pre-arranged scheme to hail the Combi and rob the

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16 occupants, either of their possessions or of the vehicle itself,

was not established beyond reasonable doubt. As I have

indicated, there is ground for suspecting that there was such a

scheme, but it falls short of the requisite degree of proof in

criminal proceedings.

It must now be considered what effect this finding has upon Boyana's creditworthiness and upon the conviction of No. 2 on the counts of murder and attempted murder (Counts 1 and 2). As to creditworthiness a large question mark must be placed upon his veracity because of his insistence that the three of them were engaged upon an innocent pursuit of attending a second party at Lenasia South. It may be true, but there is a strong suspicion that it was not; for that reason alone he was, correctly, treated by the trial court as an accomplice. The finding, however, that there was a pre-planned scheme to effect a robbery cannot be justified, not only for the reasons which I have listed but also

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17 because it involves the rejection of a major feature of Boyana's

evidence while holding, as the trial court did, that Boyana was

an acceptable witness. I am of the view that Boyana's testimony

can only be accepted on issues which are corroborated by Manuals

or by independent evidence.

In my view, Boyana's testimony can safely be accepted in regard to the circumstances surrounding the actual shooting of the deceased in the Combi. Not only does it tally with Manual's evidence but it is supported by the ballistic tests as also the general scene as found by Jonathan May and, later, by the police.

Óne of the other issues upon which Boyana can be believed is that No. 1 shot the deceased and then fired shots at Manuals. In this regard Boyana is supported by Manuals and by No. 1 himself. In s 119 proceedings in the magistrate's court No. 1 admitted to shooting the deceased in the back of the head. When he was

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conf ronted with his statement, and also the fact that he had

pleaded guilty to murder before the magistrate, he stated that he had been assaulted by the police immediately after his arrest and forced to admit guilt. This explanation was rejected by the trial court, and correctly so. His statement was furnished to the magistrate a good two months after the alleged assault committed upon him by the police. Moreover, the question of an alleged assault was not put to the police witness. Not only did he admit to the shooting but his statement contained numerous exculpatory features which are inconsistent with a forced statement. For example, he said that No. 2 "het op my voet getrap en gesê ek moet skiet", a remark that he also made to Boyana immediately after the shooting when the latter asked him why he had shot the deceased.

As to the attempted murder, Count 2, there is the evidence of Manuals that No. 1, after shooting the deceased in the head,

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turned the pistol upon him, but it misfired. This evidence on
its own would establish No. 1's. guilt on this charge. In addition there is the firing of shots at Manuals as he ran away. Boyana was then about 25 metres from the Combi. Having regard to this distance and to the darkness of the night, his testimony requires careful scrutiny. He added that No. 1 was dressed in a white skipper shirt which would presumably have rendered him more visible. In my view, the decisive piece of evidence was the fact that the shots fired at Manuals must have taken place within seconds of the initial shooting of the deceased. Any suggestion that No. 1 unaccountably handed over the pistol to No. 2 who thereafter shot at the fleeing Manuals is so highly unlikely as to be ignored. Boyana testified that No. 2 asked No. 1 why he had not shot both the occupants and why he had allowed Manuals to escape. This testimony is added support for a finding that it was No. 1 who continued to wield the firearm.

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It follows from what I have stated that the appeal of No. 1

against his convictions on Counts 1 and 2 cannot succeed. I shall in due course consider his appeal on Count 3 where he was convicted of robbery.

A second conseguence which flows from the conclusion that a pre-arranged scheme of robbery was not established beyond reasonable doubt is that No. 2's complicity on Counts 1 and 2 must be reconsidered. Had there been a prior arrangement he would have been liable to conviction upon the doctrine of common purpose. This was the basis for the trial court's finding.

No such prior arrangement was proved. What other evidence is there to link him with these two shootings? There is only the statement made by No. 1 before the magistrate that No. 2 "het op my voete getrap en gesê ek moet skiet",and an explanation in identical terms which No. 1 made to Boyana shortly after the

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shots were fired, but not within earshot of No. 2. Neither

statement is admissible against No. 2. Possibly because this issue was not raised by counsel, the learned Judge in the court a quo completely overlooked its inadmissibility. It follows, in my view, that there was no evidence, even of a prima facie nature, before the court a quo to establish the guilt of No. 2 in respect of Counts 1 and 2. His failure to testify cannot serve to bolster a non-existent State case. Accordingly, he cannot be found guilty of murder (Count 1) or of attempted murder (Count 2) and his appeal in respect of these convictions must succeed.

This conclusion does not necessarily dispose of Count 1. It must be considered whether, on all the available evidence, No. 2 should have beeh convicted of being an accessory aftér the fact to murder. His counsel conceded that in the circumstances it was not only a competent verdict but a proper one. I shall proceed to consider whether this concession is well-founded.

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Snyman - Criminal Law (2nd ed) at 273 distinguishes two types of definitions of an accessory after the fact and categorises them as a wide definition and a narrow one. The learned author states:

"According to the wide one, an accessory after the fact is someone who helps the perpetrator after the completion of the crime in circumstances indicating that he associates himself, in the wide sense of the word, with the crime."

Authority for this approach, says Snyman, can be traced back to the Privy Councíl Decision in Nkau Majara v The Queen [1954] AC 235 (PC). The wide approach would seem to be the basis, at least for the judgment of Curlewis CJ, in R v Jongani 1937 AD 400, although a narrower approach seems to be postulated in the concurring judgments of De Wet JA and Watermeyer AJA. (See in this regard, S v Augustine 1986 (3) SA 294 (C) at 299 G - 300 B.)

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Snyman (op cit) at 273 goes on to describe the narrow approach as follows:

"The second and narrower approach regards as accessories after the fact only those people who, in helping the perpetrator after the commission of the offence, have a certain object in mind, namely to defeat or obstruct the course of justice. They are people who prevent the apprehension and bringing to justice of the perpetrator..."

Authority for this approach can be found in decisions such as R v Mlooi and Others 1925 AD 131 at 134, 135 - 6, 137 and 142; Ex Parte Minister of Justice: In re R v Maserow and Another 1942 AD 164 at 173; S v Khoza 1982 (3) SA 1019 (A) at 1040 C - D.

Snyman favours the narrower approach and submits that R v Jongani (supra) was wrongly decided. Burchell and Hunt - SA Criminal Law and Procedure Vol I (2nd ed) favour the wider approach (see at 441 - 3).

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It is, however, unnecessary, in my view, to consider whether there is any real conflict between the above authorities, or whether the wider or narrower approach should be adopted. As was found by Jansen JA in S v Jonathan en Andere 1987(1) SA 633 (A) at 644 H - 645 B, on the facts of that case, the conduct of No. 2 fits the narrow, as well as the wide definition. He not only joined No. 1 in rifling the pocket of the wounded victim but also re-took possession of the automatic pistol and concealed it in his house. Accordingly, he not only associated himself with the murder committed by No. 1 , but went further, with the object of preventing the apprehension and bringing to justice of the perpetrator. This is the only inference to be drawn in the absence of any explanation by No. 2 of his conduct. In my view, whatever approach is to be adopted, the conduct of No. 2 rendered him guilty of being an accessory after the fact to murder (which is a competent verdict) and on Count 1 he must so be convicted.

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The conviction of No. 1 and No. 2 on the count of robbery (Count 3) must also be re-assessed in the light of the conclusion that there was no prior plan to rob. It follows that the State failed to establish that the deceased was shot in order to be robbed. The turning out of the pocket of an unresisting victim and the removal of his money amounts to theft and no more. Accordingly, the conviction on Count 3 must be altered in the case of each accused to a finding of guilty of theft; and their sentences on this count must be reconsidered. I am of the view that this conviction, viewed on its own, as it must be, necessarily attracts a lesser penalty.

The appeals against sentence must now be considered. I commence with the sentence of death passed on No. 1 . Since the date on which sentence was passed the Criminal Law Amendment Act 107 of 1990 came into operation. Its effect has been considered and

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analysed in a number of decisions of this Court which I need not

repeat in any detail. Its provisions apply to appeals like the present one even though the original trial proceeded upon the basis of pre-existing legislation. This Court is empowered and, indeed, obliged to reconsider the dêath sentences upon different and extended criteria. By weighing up aggravating and mitigating factors (wider in concept than extenuating circumstances under the pre-existing statutory provision) this Court is vested with a discretion in terms of which it is obliged to consider whether a sentence of death is the only proper sentence in the circumstances.

The aggravating factors consist primarily of proof that the deceased, an innocent victim, was deliberately shot and callously left to die. There was a total absence of remorse compounded by the unfeeling act of rifling the pockets of the dying victim.

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On the other hand, mitigating factors were undoubtedly present.
No. 1 was barely 19 years old at the time he committed the offences. This is not in my view a case of mere youthfulness but rather one of immaturity, in the sense that he was confronted by a situation with which he could not adeguately deal. The production of the toy pistol, which he obviously believed to be real, must have prompted in him an impulse to draw his pistol and fire at the head of the deceased in circumstances where the use of a weapon, at the worst for him, may have been contemplated as no more than a remote possibility. He has no record of previous convictions but this must not be accorded much weight since he was only 19 at the time. His insistence that No. 2 pressed him to shoot cannot be rejected; he said it immediately after the shooting when Boyana questioned him - at a stage before any motive for exculpation would probably have suggested itself, and it was stated to a friend and companion, for whom exculpation would have been unnecessary. There is a further element, namely,

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liquor; a fair quantity of beer had been drunk that evening and

his natural inhibitions could conceivably have been weakened.

It seems to me that this is a situation where the mitigating factors significantly outweigh the aggravating factors and that the death sentence is by no means the only appropriate penalty. I am of the view that justice will best be met by the imposition of a substantial term of imprisonment.

In so far as No. 1 is concerned, on Count 1, the murder, a sentence of 12 (twelve) years will be imposed. On Count 2, the attempted murder, the sentence of 4 years imprisonment stands as does the order that the sentences on Counts 4 and 5 will run concurrently therewith. On Count 3, the conviction for theft instead of robbery, the sentence is reduced to one of 6 (six) months imprisonment which in my opinion should also run concurrently with the sentence upon Count 2.

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In the case of No. 2, an appropriate sentence upon a finding that he is guilty of being an accessory after the fact to murder is 6 (six) years imprisonment. I see no reason why the sentences upon Counts 4 and 5 should run concurrently with the above sentence since his possession of the pistol and ammunition was, if anything, more serious than in the case of No. 1. For the conviction of theft, on Count 3, an appropriate sentence should take account of his record of previous convictions which includes one for theft committed in 1985. Moreover, the theft seems to have been his idea. He persuaded No. 1 to join him. I am of the opinion that in his case it should be 1 (one) years imprisonment and that it should also not run concurrently.

The following orders are accordingly made:

In the case of No. 1:

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COUNT 1 (murder): The appeal against the conviction fails. The appeal against the sentence succeeds; the sentence of death is set aside and replaced by a sentence of 12 (twelve) years imprisonment.
COUNT 2 (attempted murder): The appeal against the conviction fails and the sentence of 4 (four) years imprisonment stands.
COUNT 3 (robbery): The appeal against the conviction succeeds. The conviction is altered to one of guilty of theft; the sentence imposed by the trial court is set aside and replaced with one of 6 (six) months imprisonment.
COUNTS 4 and 5 (unlawful possession of arms and ammunition): The appeal fails. The convictions and sentences stand.

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It is ordered that the sentences on Counts 3,4 and 5 will run concurrently with the sentence imposed on Count 2. Accordingly No. 1's effective period of imprisonment will be 16 (sixteen) years.

In the case of No. 2:

COUNT 1 (murder): The appeal succeeds. The conviction and sentence of death are set aside. He is found guilty of the crime of being an accessory after the fact to murder and is sentenced to 6 (six) years imprisonment.
COUNT 2 (attempted murder): The appeal succeeds. The conviction and sentence are set aside.

COUNT 3 (robbery): The appeal succeeds to the extent that the

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is reduced to 12 (twelve) months imprisonment.

COUNTS 4 and 5 (unlawful possession of arms and ammunition): The convictions and sentences still stand. The order of the trial court that these sentences are to run concurrently with another sentence is deleted.

To make it clear, in the case of No. 2, none of the above sentences is to run concurrently with any other sentence. The total period of imprisonment in his case is 8 (eight) years and 3 (three) months.

H.J PREISS

SMALBERGER JA )

NESTADT JA ) CONCUR

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