Malele and Others v S (723/2016) [2017] ZASCA 173 (1 December 2017)

Malele and Others v S (723/2016) [2017] ZASCA 173 (1 December 2017)

The Supreme Court of Appeal found that there were material misgivings regarding the trial court's application of the doctrine of common purpose to the applicants. The evidence did not clearly establish that all applicants were aware of or associated themselves with the conduct leading to the deceased's death. The single witness to the alleged assault in the holding cells did not specifically identify any applicant as a perpetrator. The trial court's reasoning that mere failure to intervene constituted association was questioned, and the finding of dolus eventualis was not sufficiently supported. Given these concerns, the court held that there was a reasonable prospect that another court...

Citation
[2017] ZASCA 173
Parties
Applicant: Meshack Malele; Applicant: Sipho Sydwell Ngobeni; Applicant: Bongani Kolisi; Applicant: Linda Sololo; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
1 December 2017
Case Number
723/2016
Procedural Posture
Leave to Appeal / Application for Reconsideration of Refusal of Leave to Appeal
Outcome
Leave to appeal granted to all applicants; previous refusal of leave set aside.
Judges
Navsa, Swain, Mathopo, Mokgohloa, Ploos van Amstel
Legal Topics
Common Purpose, Murder Conviction, Leave to Appeal, Mens Rea, Association, Causation
Criminal Law Common Purpose Murder Conviction Leave to Appeal Mens Rea Association Causation

Case Brief

Summary, issues, holding and outcome

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Parties

Meshack Malele

Applicant

Sipho Sydwell Ngobeni

Applicant

Bongani Kolisi

Applicant

Linda Sololo

Applicant

The State

Respondent

Procedural Posture

Leave to Appeal / Application for Reconsideration of Refusal of Leave to Appeal

Legal Issues

  1. 1 Whether the doctrine of common purpose was correctly applied to convict the applicants of murder.
  2. 2 Whether there is a reasonable prospect that another court may overturn the murder convictions.
  3. 3 Whether the applicants' failure to intervene constituted association with the perpetrator.

Ratio Decidendi

The Supreme Court of Appeal found that there were material misgivings regarding the trial court's application of the doctrine of common purpose to the applicants. The evidence did not clearly establish that all applicants were aware of or associated themselves with the conduct leading to the deceased's death. The single witness to the alleged assault in the holding cells did not specifically identify any applicant as a perpetrator. The trial court's reasoning that mere failure to intervene constituted association was questioned, and the finding of dolus eventualis was not sufficiently supported. Given these concerns, the court held that there was a reasonable prospect that another court...

Court Disposition

Leave to appeal granted to all applicants; previous refusal of leave set aside.

Orders

  • The decision of this court dated 3 May 2016 is set aside.
  • The applicants are all granted leave to appeal their convictions to a full court of the Gauteng Division of the High Court, Pretoria.