Mabena v S (A81/2016) [2016] ZAGPPHC 731 (18 August 2016)

Mabena v S (A81/2016) [2016] ZAGPPHC 731 (18 August 2016)

The trial court misdirected itself in finding common purpose between the appellant and Kgareng. The independent witness could not identify which accused fired the fatal shots, and the appellant's version that Kgareng was the shooter and robber was reasonably possibly true and could not be rejected. The appellant did not manifest any association with Kgareng's conduct nor possess the requisite intention or foresight for common purpose liability. There was also no basis to convict the appellant as an accessory after the fact, as he did not assist Kgareng in evading justice. Accordingly, the conviction and sentence against the appellant must be set aside.

Citation
[2016] ZAGPPHC 731
Parties
Appellant: Bongani Joseph Mabena; Respondent: The State
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
18 August 2016
Case Number
A81/2016
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal upheld; conviction and sentence set aside.
Judges
J W Louw, H J De Vos, C P Rabie
Legal Topics
Common Purpose, Accessory After the Fact, Robbery With Aggravating Circumstances, Murder, Possession of Unlicensed Firearms, Possession of Unlicensed Ammunition
Criminal Law Common Purpose Accessory After the Fact Robbery With Aggravating Circumstances Murder Possession of Unlicensed Firearms Possession of Unlicensed Ammunition

Case Brief

Summary, issues, holding and outcome

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Parties

Bongani Joseph Mabena

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the trial court correctly found that the appellant acted in common purpose with his co-accused in the commission of murder and robbery.
  2. 2 Whether the appellant's conviction for possession of unlicensed firearms and ammunition was justified on the basis of common purpose.
  3. 3 Whether the appellant could be convicted as an accessory after the fact.

Ratio Decidendi

The trial court misdirected itself in finding common purpose between the appellant and Kgareng. The independent witness could not identify which accused fired the fatal shots, and the appellant's version that Kgareng was the shooter and robber was reasonably possibly true and could not be rejected. The appellant did not manifest any association with Kgareng's conduct nor possess the requisite intention or foresight for common purpose liability. There was also no basis to convict the appellant as an accessory after the fact, as he did not assist Kgareng in evading justice. Accordingly, the conviction and sentence against the appellant must be set aside.

Court Disposition

Appeal upheld; conviction and sentence set aside.

Orders

  • The conviction of the appellant by the court a quo is set aside.
  • Accused no. 2 is found not guilty and is discharged.