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[1998] ZASCA 55
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S v Williams and Others (316/96) [1998] ZASCA 55; [1998] 3 All SA 262 (A) (1 June 1998)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA CASE NO: 316\96
In the matter between:
DEVAN WILLIAMS 1st Appellant
NORMAN MCHUNU 2nd Appellant
KRIEMENTHREN MAISTRY 3rd Appellant
and
THE STATE Respondent
Coram: Eksteen, JA, Melunsky et Farlam, AJJA Heard: 12 May 1998
Delivered: 1 June 1998
convictions only on the counts on which they were found guilty as
accessories after the fact. These are:
The first appellant: (accused no 1 in the court a quo): count 1 (arson) and
counts 10 and 11 (both murder);
The second appellant: (accused no 4 in the court a quo): count 5 (murder);
3 The third appellant: (accused no 5 in the court a quo): counts 5 and 8 (both
murder).
in the court a quo) was a warrant officer. They were all stationed at the
Mountain Rise Police Station, Pietermaritzburg, but the first and the second
appellants and Ramdas were seconded to Imbali in the same district.
advancement in the force. What is more, it is almost beyond belief that
members of the police, including the appellants and two state witnesses,
Mandlenkosi Ndaba and Adrian Aiyer, could so easily have been led by
Ramdas and Singh into participating in criminal conduct. It is quite obvious
- and this was conceded by the appellants' counsel - that Ramdas and Singh
regarded the appellants and Ndaba as persons who could be relied upon not
to reveal anything about the crimes that were committed. This is evident
from the fact that on some occasions certain of the appellants accompanied
the main perpetrators to the scenes of the crimes for no ostensible reason.
As the appeals are directed against the appellants' convictions as accessories
after the fact, it is necessary to say something about this branch of the law
which, fortunately, appears to be reasonably settled. In considering the
issues raised in this appeal I shall accept, for the purposes of this judgment,
6 that the obiter remarks in S v Morgan and Others 1993 (2) SACK 134 (A)
at 174 a-e are a correct reflection of our law. According to this judgment
the narrower approach to the definition of an accessory - a person who
assists the perpetrator to evade justice - is to be preferred to the wider
approach, according to which it is sufficient if the accessory associates
himself in a broad sense with the offence.
who had knowledge of the commission of the offence and the identity of the
perpetrator would ordinarily be liable as an accessory after the fact if he
deliberately failed to report the crime with the intention of assisting the
perpetrator to evade justice. Despite the concessions by counsel for the
appellants in this respect it is desirable to deal in more detail with this aspect
because this court has not, as far as I am aware, decided that an accessory's
liability can properly be based upon an omission in the circumstances which
I have mentioned. It should be emphasised that the views expressed in this
regard are confined to the criminal responsibility of an accessory after the
fact and not to the wider question of whether, or under what circumstances,
a person may incur criminal liability for failing to avert harm, a question that
was raised but left open in this court in S v A en 'n Ander 1993(1) SACK
600 (A) at 606e - 607a. In the circumstances it is not necessary to consider
8 all of the problems relating to criminal responsibility for omissions that have
arisen in other jurisdictions. Some of these have been discussed by George
Fletcher: "Rethinking Criminal Law" at 585 - 634 and "Criminal
legal convictions of the community.
[1954] AC 235 (PC)). Although the court applied the wider definition of an
accessory and assumed that Roman-Dutch law did not distinguish between
assistance by remaining inactive and assistance by acting positively, the
conclusion arrived at was undoubtedly correct. In S v Barnes Another
1990 (2) SACK 485 (N) a full court held that a member of the police was
guilty as an accessory after the fact where he failed to report the crime or to
make an entry in the occurrence book about it or to disclose the identity of
the perpetrators. Booysen J said at 493 e-f:
in any event, the State failed to prove that the appellants had the requisite
intention to assist the main offenders to evade detection. These are matters
which will be considered when I come to deal with the individual counts.
some of the accused, notably Singh and the first and third appellants who,
she claimed, had preferred false charges against her. For her part, she had
laid various complaints against some of the accused, the nature of which do
not have to be dealt with. It is not disputed that Singh and the second
appellant (and, possibly, Ndaba) set fire to her shop during the night of 27
September 1992. The first appellant's version of the events, which formed
the factual basis for his conviction, was that he was fetched at his home by
Ramdas, Singh, the second appellant, Ndaba and a constable Peters.
Ramdas was driving the official vehicle of a captain Pillay. The first
appellant said that he agreed to accompany them in the vehicle because
Ramdas had asked him to do so. There were two containers, both of which
held petrol, in the vehicle at the time and although the first appellant said that
he did not see them, he admitted smelling petrol when he entered the car.
24 officer who fails to report a crime. However counsel for the second 25 Singh. This might have been over-stating the position but there is no doubt 30 It therefore follows that the third appellant was correctly convicted on this 41 two occasions. They were parties to a common purpose to kill him. They 42 briefly. He was, on all the evidence, a mere spectator to the events. It has 43 friendly footing with Singh thereafter and it seems to be quite obvious that 46 took place. The second appellant and Aiyer returned to the vehicle. Nilesh 50 He may have been motivated, to some extent, by a desire to protect himself
the incident until May 1993, after the police investigations had already
shown his complicity in other offences. It remains to state that the evidence
on count 1 established that one of the window panes at the back of the shop
had been broken, that flammable liquid had been poured into the shop and
that a fire had broken out. That no substantial damage was caused to the
building or its contents might had been due to the arrival of the fire brigade
shortly after the fire started.
performed while he was present, he knew the parties who took
part and he did nothing to report it as he was obliged to do.
His conduct was clearly intended to assist the perpetrators and
he, as a police officer, was under a duty which he failed to
wished to protect himself rather than to assist the others to evade justice.
attack on Mrs Thaver's shop and, as I have mentioned earlier, Ramdas and
Singh considered that the appellants were reliable members of their group
who would not report what had occurred to the authorities. The result is
that I am satisfied that the trial judge was correct in drawing the inference
which he did and that the first appellant's appeal on count 1 cannot succeed.
Count 5
subsequent events. The court a quo held that there was
home, Ramdas, ordered
appellant adopted a similar argument to that employed by counsel for the
first appellant on the first count. He submitted that there was no evidence
to establish that the second appellant, while failing to report the incident, had
intended to help the perpetrators evade justice. This requirement was not
adverted to by the trial judge but his failure to do so does not mean that he
did not take it into account. The second appellant did not give evidence and
in his statement to the magistrate there is no explanation for his failure to
report the crime. The onus, however, remains on the State to prove that the
appellant's omission to report was accompanied by an intention to assist the
perpetrators. The question that has to be decided, therefore, is whether this
is the only reasonable inference that can be drawn from the proved facts.
The second appellant's counsel referred to him as "a lackey" of Ramdas and
that he was clearly under the influence of the main perpetrators and that he
carried out their orders and instructions to the letter. It is to be expected
that he would have wanted to protect them and to conceal their unlawful
activities. He had not played any part in the assault on the deceased at
Shongweni bridge and he therefore had nothing to hide. In the absence of
any other explanation, therefore, it seems to me that the only reasonable
inference to be drawn from his failure to report the crime was that he
intended to protect his fellow police officers to escape the consequences of
their unlawful actions. Quite apart from the omission to report, there is also
the second appellant's action in cleaning the blood from the back door of the
police van. The presence of the blood may well have resulted in questions
being asked and the second appellant must have realized this. It is beyond
question, in my view, that he removed traces of the blood from the back door
deceased recognised and greeted him before getting into the van. This part
of his evidence was apparently rejected by the trial court and in my view it
is unacceptable. It is in fact obvious from the evidence of the first appellant
that the deceased only recognised Singh and the third appellant after they
alighted from the vehicle when it stopped on the Shongweni bridge, and that
it was for this reason that he refused to get out. The deceased resisted
strongly and considerable force was needed to drag him out of the van. The
third appellant's evidence to the effect that the deceased was too tired to get
out of the van is so far-fetched that it was rightly rejected by the trial court.
convicting him as an accessory after the fact. The trial court's judgment
was based on the third appellant's failure to report a crime. Apart from this
the third appellant had forged a petrol register when asked to do so by
Ramdas in order to mislead the authorities into believing that a constable
Soogrin had used the vehicle in question on that night. The trial court did
not expressly decide that the third appellant forged the register and failed to
report the incident with the intention of assisting the perpetrators. I am
quite satisfied, however, that this was his intention. That he might also have
had the object of protecting himself because of his own participation, does
not mean that he cannot be convicted as an accessory after the fact if he
intended to assist the other perpetrators to escape the consequences of their
acts (see R v Sikepe and Others 1946 AD 745 at 757).
count.
Count 8
deceased's house. The deceased came to the door and the second appellant
fired three shots, one of which hit the deceased in the chest and caused his
death. Ndaba and the second appellant ran back to the car and the
occupants were then taken to their respective homes.
The first appellant was convicted on this count as an accessory after the fact
to the murder of Sipho Zulu ("the deceased"). Counsel for the State
submitted that the appropriate verdict should have been one of guilty of
murder of the deceased, while counsel for the first appellant argued that his
client should have been acquitted. The facts concerning this count, as brutal
as they may be, can be set out briefly enough. The deceased had instituted
a claim for damages against Singh and the second appellant, among others.
During the afternoon of 3 December 1992 Singh, the second appellant and
Ndaba saw the deceased while they were travelling in Singh's vehicle.
Singh, who was driving, told the other two that the deceased was a suspect
and that they should search him. This they did and on Singh's instruction,
they then pulled him into the car. When they stopped at a garage for petrol
the deceased recognised Singh, leapt out of the car and ran away. He was
noted that Ndaba claimed that it was the first appellant who had pulled the
deceased out of the motor car at the scene of the shooting and that thereafter
the first appellant throttled the deceased until he became weak. This
evidence was not accepted by the trial court and nothing further need be said
about it.
matter to be decided in the present appeal. Counsel for the State conceded
that it was essential to establish a causal connection between the omission
and the deceased's death. In this regard he contended that the facts
established that but for the first appellant's failure to act, the deceased would
not have been killed. This argument was based on the first appellant's
aforesaid concession under cross-examination that he had it within his power
to prevent Singh from shooting the deceased. The guilt of the first appellant
should, however, be based on the objective facts and not only on his
admission which may possibly have been an ill-considered response. It is
true that the first appellant might have been able to overpower Singh but it
was not established beyond reasonable doubt that he would have succeeded
in doing so. Moreover, both Ndaba and the second appellant were present.
They had earlier apprehended the deceased and had prevented his escape on
were under Singh's influence and assisted him at the scene of the shooting.
And the second appellant had been sued by the deceased and had a motive
to harm him. One cannot speculate how they would have reacted had the
first appellant attempted to intervene but it is at least reasonably possible
that they might have prevented him from taking any effective steps to save
the deceased's life. These material matters were not explored in the court
a quo. It would therefore be wrong, in my view, to hold the first appellant
legally liable for the death of the deceased on the strength of his answer to
a question in cross-examination and without having regard to the prevailing
circumstances. For this reason counsel for the State's submission in this
court cannot succeed.
The first appellant's appeal on this count can, in my view, be disposed of
not been shown that he had a common purpose to bring about the deceased's
death. Indeed, according to his evidence, he tried to dissuade Singh from
shooting the deceased. His failure to carry out his duty to report a crime is
explicable only on the basis that he intended thereby to assist his friends and
colleagues to evade conviction. Even if I were to accept the submission by
the first appellant's counsel that Singh and Ramdas had a hold over the
appellants and that they were able to manipulate them and use them, I am
unable to agree with his further argument that the first appellant was afraid
to report the crime and that, to this extent, it was reasonably possible that his
failure to tell the authorities about the death of the deceased might have been
attributable to a desire to protect himself from Singh's vengeance. There
is little substance in this point. The first appellant became friendly with
Singh at the police college during the first half of 1991. He remained on a
his intention was to protect his friend and colleague and not himself.
The only question that arises on this count is whether the first appellant was
correctly convicted as an accessory after the fact to the murder of captain
Durugiah.
his brake pedal three times causing the brake lights to light up at the house
where the shooting was to take place. Aiyer and the second appellant were
to do the shooting, the former with the shotgun and the latter with the first
appellant's service pistol, now fitted with a different barrel. They were to
knock on the door of the house and shoot the person who came out.
Ramdas' scheme was put into operation. The second appellant and Aiyer
got out of Nilesh Singh's car at the house indicated by Ramdas, the second
appellant knocked on the door and when the deceased came out he was shot
by both assailants. The post mortem report shows that he was killed as a
result of a shotgun wound to the chest and bullet wounds to the abdomen
and neck.
The first appellant remained in Nilesh Singh's vehicle while the shooting
Singh was left in Durban and the others travelled back to Pietermaritzburg
in captain Pillay's car after the correct number plates were fitted to it. The
first appellant replaced the barrel of his pistol with the original barrel that
had remained in his possession.
by telling anyone who enquired that he had been working with them.
perpetrators but, on the contrary, said that Ramdas had been in the
operational room during the night.
49 meeting. It is sufficient to say that the evidence of some of the witnesses
who testified about that occasion may be open to some doubt. It is quite
clear that the first appellant initially presented the police, who were
investigating the deceased's murder, with false information about the
movements of Singh and Ramdas. Counsel for the first appellant correctly
pointed out that the first appellant, shortly after giving the false information
to Swart, apologised for lying and told him that it was on Ramdas'
instructions that he had said that Ramdas was at the operational room at all
relevant times during the night of the murder. Even at that stage, however,
the first appellant concealed that Ramdas had, in truth, been at Umkomaas
with the other perpetrators.
It only remains to consider whether the first appellant acted as he did with the intention of assisting Singh and Ramdas, two of the main perpetrators.
because of his failure to remain on duty in the operational room for the major
part of the night. This argument is not without substance but it is important
not to overlook the fact that the false information which the first appellant
conveyed to Myburgh and Swart was in response to direct questions relating
to the possible involvement of Singh and Ramdas in the death of the
deceased. While the first appellant may have been concerned with his own
position, he can hardly claim that he did not intend to help both Singh and
Ramdas by providing them with false alibis (see R v Sikepe and Others,
supra).
voluntarily hand over his pistol. The undisputed facts show that Singh
removed the fire-arm from its holster after the first appellant had been
threatened by Ramdas.
For these reasons the first appellant's appeal against his conviction on count 11 cannot succeed.
In the result the appeals are dismissed.