Mabuso v S (A005/2021) [2023] ZAGPJHC 140 (13 February 2023)
- Citation
- [2023] ZAGPJHC 140
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Mabesele, Mdalana-Mayisela
- Case number
- A005/2021
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Mabesele, Mdalana-Mayisela
- Case number
- A005/2021
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The appeal was upheld because the state failed to prove beyond reasonable doubt that the shots fired from the vehicle were directed at the police and failed to establish who among the occupants fired the shots. Furthermore, the state did not allege or prove that the appellant acted in furtherance of a common purpose. In light of these deficiencies, the conviction and sentence could not stand.
Court disposition
Appeal upheld; conviction and sentence set aside.
Orders
- The appeal against conviction is upheld.
- The conviction and sentence are set aside.
02
Material facts
Parties
Nkosi Mabuso
Appellant Counsel: Adv SmithThe State
Respondent Counsel: Adv Masina03
Procedural history
Posture
Criminal Appeal / Appeal Against Conviction
04
Questions and positions
Legal issues
- 01
Whether the state proved beyond reasonable doubt that shots fired from the vehicle were directed at the police.
- 02
Whether the state proved beyond reasonable doubt who amongst the occupants of the vehicle fired the shots.
- 03
Whether the appellant acted in furtherance of a common purpose with the co-accused.
Party arguments
- Applicant
- The appellant argued that the state failed to prove beyond reasonable doubt that he fired shots at the police or that the shots were directed at the police. He further contended that there was no evidence establishing who fired the shots and that the state did not allege common purpose among the occupants of the vehicle.
- Respondent
- The respondent maintained that the conviction was justified based on the evidence that shots were fired from the vehicle in which the appellant was an occupant, and that the circumstances warranted a finding of guilt for attempted murder.
05
Court’s reasoning
Legal principles
- 01
S v Zuma 1995 (2) SA 642 (CC)
The state must prove beyond reasonable doubt the identity of the perpetrator and the intention to commit the offence charged.
- 02
S v Mgedezi 1989 (1) SA 687 (A)
Where common purpose is not alleged, individual conduct must be proved for conviction.
06
Ratio, limits and disposition
Ratio decidendi
The appeal was upheld because the state failed to prove beyond reasonable doubt that the shots fired from the vehicle were directed at the police and failed to establish who among the occupants fired the shots. Furthermore, the state did not allege or prove that the appellant acted in furtherance of a common purpose. In light of these deficiencies, the conviction and sentence could not stand.
Obiter and limits
- It is logical that the outcome of the co-accused's appeal should apply to the appellant in similar circumstances.
- The absence of evidence regarding the identity of the shooter and the direction of the shots is fatal to the prosecution's case.
Court disposition
Appeal upheld; conviction and sentence set aside.
- The appeal against conviction is upheld.
- The conviction and sentence are set aside.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Appeal case number: A005/2021
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
DATE 13 February 2023
In the matter between:
NKOSI
MABUSO
Appellant
And
THE
STATE
Respondent
Mabesele J et Mdalana-Mayisela J
JUDGMENT
MABESELE, J:
[1] This is an appeal against conviction on a charge of attempted murder for which the appellant was sentenced to a period of 10 (ten) years imprisonment. The court a quo ordered that 5 years of the 10 years imprisonment sentence should be served concurrently with any other sentence that the appellant is serving.
[2] The evidence is that the appellant and two others were driving in a vehicle that was chased by the police. After they were arrested and brought to court on a charge of attempted murder for shooting at the police, the appellant’s co-accused namely; Themba Motau, appealed his conviction. His appeal was upheld by this court on 28 November 2022; firstly, due to failure by the state to prove beyond reasonable doubt that the shots that were fired from the said vehicle were directed at the police. Secondly, failure by the state to prove beyond reasonable doubt who, amongst the occupants of the vehicle fired shots, since the state did not allege that they acted in furtherance of a common purpose.
[3] Therefore, it is logical that the appeal of the appellant against his conviction be upheld.
[4] In the result, the following order is made:
4.1 The appeal against conviction is upheld.
4.2 The conviction and sentence are set aside.
M.M
MABESELE
(Judge of the High Court Gauteng Local Division)
I concur
M.M.P MDALANA-MAYISELA
Date of hearing: 13 February 2023
Date of Judgement: 13 February 2023
Appearances
On behalf of Appellant: Adv Smith
Instructed by: Legal
Aid Board South Africa
On behalf of the Respondent: Adv Masina
Instructed by: Director
of Public Prosecutions
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