Dube and Others v S (AR 407/08) [2009] ZAKZPHC 42; 2010 (1) SACR 65 (KZP) (14 September 2009)

Dube and Others v S (AR 407/08) [2009] ZAKZPHC 42; 2010 (1) SACR 65 (KZP) (14 September 2009)

The court found that the appellants did not possess the subjective intention required for murder or attempted murder. The evidence showed that the appellants took extensive steps to avoid apprehension, were unarmed, and did not foresee or reconcile themselves to the possibility of dangerous resistance to arrest. The conduct of the deceased in attacking an armed policeman with a crowbar was not a foreseeable consequence of the common purpose, but rather a 'frolic of his own.' The absence of firearms and the careful planning to avoid detection supported the inference that the appellants did not subjectively foresee the risk of death or attempted murder. The court also held that the...

Citation
[2009] ZAKZPHC 42
Parties
Appellant: Nsukukayifani Patrick Dube; Appellant: Ndodo Oscar Jele; Appellant: Dongazi Jimmy James Ngobeni; Appellant: Sydney Ngesile Joe Kanana; Appellant: Smangaliso Simanga Cyril Sibiya; Appellant: Charlie Ephraim Tembe; Appellant: Khulile Glenwood Zoko; Appellant: Bongani Nhlanhla Gabela; Appellant: Johannes Mohlopheki Letsoalo; Respondent: The State
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
14 September 2009
Case Number
AR 407/08
Procedural Posture
Criminal Appeal / Appeal Against Convictions and Sentences
Outcome
Appeals against convictions and sentences for murder and attempted murder upheld; convictions and sentences set aside. Appeals against sentences for housebreaking with intent to commit theft and attempted theft upheld; sentences reduced.
Judges
Swain, K Pillay, Madondo
Legal Topics
Common Purpose, Dolus Eventualis, Culpable Homicide, Housebreaking, Sentencing Principles
Criminal Law Common Purpose Dolus Eventualis Culpable Homicide Housebreaking Sentencing Principles

Case Brief

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Parties

Nsukukayifani Patrick Dube

Appellant

Ndodo Oscar Jele

Appellant

Dongazi Jimmy James Ngobeni

Appellant

Sydney Ngesile Joe Kanana

Appellant

Smangaliso Simanga Cyril Sibiya

Appellant

Charlie Ephraim Tembe

Appellant

Khulile Glenwood Zoko

Appellant

Bongani Nhlanhla Gabela

Appellant

Johannes Mohlopheki Letsoalo

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Convictions and Sentences

Legal Issues

  1. 1 Whether the appellants possessed the requisite subjective intention (dolus eventualis) for murder and attempted murder.
  2. 2 Whether the convictions for murder and attempted murder were justified on the facts.
  3. 3 Whether the sentences imposed for housebreaking with intent to commit theft and attempted theft were appropriate.

Ratio Decidendi

The court found that the appellants did not possess the subjective intention required for murder or attempted murder. The evidence showed that the appellants took extensive steps to avoid apprehension, were unarmed, and did not foresee or reconcile themselves to the possibility of dangerous resistance to arrest. The conduct of the deceased in attacking an armed policeman with a crowbar was not a foreseeable consequence of the common purpose, but rather a 'frolic of his own.' The absence of firearms and the careful planning to avoid detection supported the inference that the appellants did not subjectively foresee the risk of death or attempted murder. The court also held that the...

Court Disposition

Appeals against convictions and sentences for murder and attempted murder upheld; convictions and sentences set aside. Appeals against sentences for housebreaking with intent to commit theft and attempted theft upheld; sentences reduced.

Orders

  • Convictions and sentences for murder (Count 2) and attempted murder (Count 3) are set aside and replaced with verdicts of not guilty.
  • Appellant Nos. 1, 2, 3, 5, 6, 7, 8 and 9 are sentenced to 12 years' imprisonment on Count 1 (housebreaking with intent to commit theft and attempted theft).