S v Mazibuko an Others (384/87) [1988] ZASCA 25 (29 March 1988)

384/87 /mb

IN THE SUPREME COURT OF SOUTH AFRICA

(APPELLATE DIVISION)

In the matter between:

ENOCH MAKHOSONKE MAZIBUKO APPELLANT 1

PHILLIP TLHAPANE APPELLANT 2BARNEY HAYNES APPELLANT 3RALPH HAYNES . APPELLANT 4andTHE STATE

RESPONDENT

CORAM : VAN HEERDEN, NESTADT et KUMLEBEN, JJAHEARD : 18 MARCH 1988 DELIVERED : 29 March 1988

JUDGMENT/

2. JUDGMENT

KUMLEBEN, JA

The four appellants, to whom I shall refer

as accused nos 1 to 4, stood trial in the Witwaters-

rand Local Division. They were charged with: count

1 - murder; count 2 - robbery with aggravating cir-

cumstances; counts 3 and 4 - unlawful possession of

a firearm and its ammunition; and count 5 - theft.The indictment alleged in reference to these charges:that on 22 February 1985 at or near Randfontein theaccused intentionally and unlawfully killed the de-ceased, Charl Petrus Marais, by fatally injuring himw'ith a sub-machine gun; that they unlawfully possessedthis firearm and its ammunition; that they robbed himof R14 100,69; and that a Cortina motorcar was stolen

by/

4

by them in order to carry out this planned robbery. Accused no 1 was initially represented by pro deo counsel (Mr Katzew) but after the close of the State case was unrepresented. Pro deo counsel acted for the others throughout: Mr Liebowitz for

accused no 2 and Mr Robinson for accused nos 3 and 4.Notwithstanding their pleas of not guilty, each was convicted on some or all counts. Accused no 1 was found guilty on count 1 of murder with the ancillary finding that the degree of intent was dolus directus. However, when the court came to the consi-der whether there were extenuating circumstances, it, for reasons which will be discussed in due course, concluded that this accused had acted dolo eventuale

and/

4. and that this lesser degree of intent in the circum-

stances amounted to extenuation. On this count,and

on counts 3, 4, and 5, on which he was also convic-

ted, prison sentences were imposed. On count 2 this

accused was found guilty as charged and in the exer-

cise of his discretion the learned Judge, Mc Creath J,

imposed the death sentence. The other three accused

were each convicted on counts 1, 2 and 5 as charged butwere found not guilty on counts 3 and 4. As regards

count 1, the murder charge, the Court held that the

degree of intent was dolus eventualis and extenuating

circumstances were found to be present. Prison sen-

tences were imposed in respect of each of the counts

on which they were found guilty.

The/

5. The following facts giving rise to these

convictions were common cause or indisputably proved.Accused no 3 came to know that a certain Mr Lowe re-gularly sent someone by car on Friday afternoons withmoney to be paid to employees. It was conveyed fromhis business premises in Randfontein to the Cook Re-duction.Works in the district. The four accused andone Goosen decided to intercept the car and rob itsdriver. The five of them discussed in detail howthis was to be done. Accused no 4 obtained a sub-machine gun to be used in the robbery. On Friday22 February 1985 it took place. Goosen stole a Cor-tina motorcar. He drove it to the business premisesof Mr Lowe. Accused nos 1 and 2 joined him and sat

in the/

6. in the car. Accused nos 3 and 4 were in the vicinity

to see that things went according to plan. In due

course the deceased left in a Mercedes Benz motorcar.He was followed by Goosen driving the Cortina withaccused nos 1 and 2 still in it. At a point shortlybefore the Mercedes Benz reached an intersection theCortina overtook it and, when it stopped at the in-tersection, blocked its passage. Accused nos 1 and

2 alighted from the Cortina. No 2 accused struck thedeceased on the jaw with his fist. Accused no 1 shotthe deceased with the sub-machine gun as he sat slumpedin the driver's seat as a result of the blow he hadreceived. (Accused no 1 initially denied but lateradmitted that he had shot the deceased.) The post-

mortem/ 7. mortem examination revealed that one bullet had

entered the right shoulder of the deceased and pene-trated the skull where it lodged. The course of theother was through his chest, the bullet being foundlodged in the arm rest between the two front seats.Shortly before or at the time the shots were fired,the Mercedes Benz moved forward, collided with theleft hand side of the Cortina and came to rest onthe far side of the intersection. Accused no 2 tookan attaché case, containing the money, from the rearseat of the car. Goosen drove the Cortina to a sëclu-ded spot. The money was removed from the attachécase before it and the car were abandoned. LaterGoosen and the four accused met at the house of

Goosen's/

8.

Goosen's mother and most of the money was divided

amongst them.Goosen was the key witness for the State. He recounted in detail the events, which I have brief-ly summarised, and explained the role played by each accused. He in fact featured as an accused at the trial before a separation of trials was ordered. At the time he testified he had been convicted on counts 1, 2 and 5 for which the death sentence, twelve years' imprison-ment and five years' imprisonment respectively were imposed (The facts and decision in his appeal, which was heard immediately after this one, appear from the judgment of my Brother van Heerden - S v Goosen.(Appeal 278/87))

He said that a number of discussions took place on how the robbery was to be carried out and the part each one was to play. Nothing was left to9. the independent judgment of a participant. It wasexplicitly agreed that the firearm was only to beused to intimidate the driver and that it was notto be fired. They confidently expected that the blowto be delivered by accused no 2, who was apparentlya man of formidable physique, would immobilize thedriver. During the discussions no 3 accused hadtold them that it was the policy of the company toinstruct its couriers hot to offer resistance if way-laid and attacked. (Mr Lowe in his evidence confirmedthis.) They therefore expected little or no resistan-ce. That afternoon as they travelled in the car, ata distance of about 500 metres from the intersection,accused no 1 took the sub-machine gun out of' a haver-

sack./

10. sack. He was seated next to the witness, who wasdriving. He instructed accused no 1 to steerwhilst he (Goosen) took the sub-machine gun fromhim, removed the magazine and operated the breechmechanism two or three times to ensure that therewas no cartridge in it. Had there been, it wouldhave been ejected. He said he did this to make surethat the driver would not be injured or killed bythe firearm during the robbery. He handed the sub-machine gun back to accused no 1 and placed the maga-

zine on the lap of no 1 accused. When the car hadstopped in the way of the Mercedes Benz, the twopassengers alighted from the Cortina, accused no 1

armed with the sub-machine gun. Accused no 2, as

planned,/

11.

planned, struck the deceased on the jaw with his fist. The witness noticed that he seemed dazed; his head was resting on his shoulder. He next saw accused no 1 pointing the firearm at the driver and moving to-wards him as accused no 2 retreated. He heard what he took to be one shot being fired by accused no 1. (If Goosen's evidence on the detachment of the magazine is accepted, accused no 1 must have re-placed it and cocked the sub-machine gun.) Accu-sed no 2 reacted to this by heading back to the Cortina. Accused no 1 shouted at him telling him to take the money from the back seat. This he did. The witness said that the Mercedes Benz was stationary when the "shot" was fired but

he was/ 12. he was not all that certain about the precise sequen-ce of events. During cross-examination, when askedwhether the forward movement of the Mercedes Benzpreceded the shot or shots, he said he did not think

so. ("Nee, ek glo nie.")

Mindful of the caution to be exercised in

evaluátihg the evidence of an accomplice, the Court,after a close examination of his evidence, concludedthat Goosen was a reliable witness. His evidence wasaccepted: though with a measure of scepticism asregards the removal of the magazine. As pointed out

in the judgment, his evidence was corroborated invarious respects by other reliable witnesses and was

not effectively controverted by any evidence on the

Part/ 13. part of the defence. Accused no 1 gave patentlyfalse evidence on the part he played in the commissionof the offences. The evidence of accused no 2 large-

ly corroborated that of Goosen. Where it differedthe Court concluded that Goosen's evidence was tobe preferred. Accused nos 3 and 4 declined to giveevidence. In short - and on appeal this was impli-citly conceded - for the purposes of this appealGoosen's evidence is to be accepted in all materialrespects.

Two special entries were made on the re-cord in terms of sec 317 of the Criminal ProcedureAct, 51 of 1977, to which I shall refer as "the Act".Although the application for the second entry was

made/

14. made by counsel representing certain of the accused,

once recorded it was taken to have been made on be-

half of all of them.During the course of the trial the learned Judge ruled that Mr Liebowitz, representing accused no 2, and Mr Robinson, for accused nos 3 and 4,were not permitted to cross-examine accused no 1 on his previous convictions.. The first special entry avers that, having regard to the provisions of sec 197 of the Act, this constituted an irregularity.

The following passage in the cross-exami-nation of accused no 1 reflects how this issue arose:

"You were forced to participate in the robbery because of your fear of Accu sed 2? .... My Lord, I said so .

And/

15. And as regards robbery itself, you did not go near the sub-machinegun or rather you did not handle the sub-machinegun in any manner whatsoever? No, My Lord, I never touched it. And further that you had never possessed a firearm in your life? -— No, My Lord, I never possessed a firearm. You had never handled a firearm of any description in your whole life? No, I had never held a firearm . And you were entirely ignorant of fire-arms at all?

COURT : Of the workings of firearms.

MR LIEBOWITZ : Of the workings of a fire- arm, sorry, My Lord. Even now, My Lord, I have no knowledge of handlinq a firearm ." (My underlining)

Mr Liebowitz thereupon informed the Court that he intended cross-examining accused no 1 on his

previous/ 16. previous convictions, submitting that the provisions

of sec 197(b) and (d) of the Act entitled him to do

so. This section, omitting sub-paragraphs (a) and

(c),reads as follows:

"An accused who gives evidence at criminal proceedings shall not be asked or required to answer any question tending to show that he has committed or has been convicted of or has been charged with any offence other than the offence with which he is charged, or that he is of bad character, unless-

(b) he gives evidence against any other person charged with the same offence or an offence in respect of the same facts;

(d) the proof that he has committed or has been convicted of such other offence is admissible evi-dence to show that he is guilty of the offence with which he is charged."

Mr Robinson/...

17. Mr Robinson associated himself with the

claim to cross-examine as aforesaid and presented

argument on behalf of the three accused concerned.

Although not explicitly stated at the

start of the argument, it emerged that counsel wishedto put to this accused certain of his previous con-victions which would disclose that he had been convictedof offences involying a firearm. The learned Judge,although he heard the argument on this issue in theabsence of the assessors, did not allow counsel tofurnish details of the previous convictions on whichhe wished to cross-examine. However, counsel saidthat they would show that no 1 accused had knowledgeof firearms and had committed offences involving

their/ 18. their use. It was submitted, with reference to sub-

paragraph (d) of sec 197, that these previous con-victions, if admitted or proved, would, or might,refute the assertion that no 1 accused had no ex-perience in the handling of firearms, and would alsobe relevant to the defence raised by him at thatstage of the trial, namely, that he had been forcedto take part in the robbery, was not a willing parti-cipant and had not fired the shots. Counsel furthersubmitted that, apart from considerations of relevancy,sub-paragraph (b) of sec 197 in any event authorisedsuch questioning since this accused had given evidenceimplicating all his co-accused. (As a matter of facthis previous convictions, which were admitted when put

to him/ 19. to him after conviction,show that of the fifteen,

seven were for robbery involving the use of a

firearm, one was for theft of a pistol and one for

unlawful possession of a firearm.) At the conclu-

sion of argument the application to thus cross-exa-mine was refused on the ground, as Mc Creath J putit,

"that there should be the prima facie evidence in view of the denial of an actual use of a firearm by whatever means that prima facie evidence is ob-tained. But not merely a document which is in itself not proof if it is denied."

This ruling, so it appears, was based onthe fact that the customary SAP form recording theprevious convictions was not regarded as prima facie

evidence/

20. evidence of the fact that the accused had actually

handled a firearm. In thus deciding the learned Judge

erred for the simple reason that the only point at

issue was whether the accused could be cross-examinedon his previous convictions. Were they to be deniedthen, and then only, would any questions arise as towhether evidence to refute the denial could be adducedand, if so, the form it should take. In this regardit is to be noted that sec 272 of the Act expresslyprovides that a fingerprint record of previous con-victions emanating from the South African CriminalBureau shall be prima facie proof of the factscontained therein. This, however, is by the way,

since, as I have said, the question of proof formed no

part/

21.

part of the inquiry.

In the judgment on the conviction thereason given at the time of the ruling was repeatedand another added, as appears from the following ex-tract:

"After hearing argument, I ruled that the majority of the questions sought to be put in regard hereto were irrelevant in that, although Counsel wished to refer to pre-vious convictions in regard to crimes in-volving the use of a firearm, it appeared that others were also involved in the alleged previous offences committed by accused number 1 and that in those cif-cumstances the relevance of the questions as to accused number l's knowledge of firearms in general and the possible con-sequent lack of any reluctance on his part to participate in crimes of this na-ture had not been shown to exist. It appears that there may have been one offence in which the accused personally was involved in the use of a firearm,but

accused/

22.

accused number 1 indicated that he did not admit any such previous conviction and I was of the view that in the absen-ce of Counsel being in possession of information to substantiate the fact that accused number 1 had previously made use of a firearm, cross-examination of this nature was not permissible unless and until such information was available. It was for this reason that I ruled that at that stage cross-examination of the nature sought to be embarked upon, was not to be permitted."

I mention in passing that there are twoinaccuracies in this passage. Firstly, as has beenpointed out, nine of the fifteen previous convictionsinvolved the unlawful acquisition, use or possessionof a firearm and, secondly, there was no clear in-dication from the accused that he did not, or wouldnot, admit his previous convictions. What he said

was/

23.

was "My Lord, I have never used a firearm. My Lord,I do not dispute that (sic) my previous convictions, but My Lord, I say that I have never used in the past a firearm." Be that as it may, in the judg-ment irrelevancy is relied upon as an additional reason for not permitting cross-examination on any of the previous convictions. This ground is necessa-rily based on the supposition that the court has a discretion in this regard. None is conferred by the language of sec 197(b). If an accused gives the evi-dence against a co-accused charged with the same offen-ce - as accused no 1 plainly did in this case - the immunity is forfeited and he is required to answer any question tending to show that he has been convicted

of/

24.

of any offence other than the offence with which he is charged. There is a considerable body of autho-rity which supports the view that a court, when cross-examination is authorised by sec 197(b), has no gene-ral or residual discretion to prohibit or restrict such cross-examination on grounds of irrelevancy or at all. (See Rex v Bagas 1952(1) SA 437(A) at 44CE -441A, in which the similarly worded sec 295(b) of Act 31 of 1917 was considered; Hoffmann and Zeffertt' South African Law of Evidence (3rd ed) 71; Hiemstra Suid-Afrikaanse Strafproses (4th ed) 423; and Schmidt Bewysleer (2nd ed) 299. It is, however, in the in-stant case unnecessary to decide this question since, firstly, the initial ruling was not based on the

exercise/....

25.

exercise of any judicial discretion and, secondly,

as I have indicated, nine of the previous convic-

tions are clearly relevant.

For these reasons, having regard to sec

197(b) of the Act, counsel for accused nos 2, 3 and

4 ought to have been allowed to cross-examine accu-sed no 1 as requested by them. This counsel for re-spondent on appeal did not dispute. In the lightof this conclusion it is unnecessary to decide whet-her the provisions of sec 197(d) also thus entitledthem.

The irregularity was not of the orderwhich per se vitiates a trial. In the words of the

judgment in The State v Naidoo 1962(4) SA 348(A)

at/

26.

at 353 D - F, it cannot be said that there was "sogross a departure from established rules of procedure" that the accused were not properly tried. It follows that the irregularity can only influence the convic-tion of these three accused if it can be shown that they were prejudiced. (Cf. S v Gaba 1985(4) SA 734(A) at 750 G - H.) The purpose of this proposed cross-examination, as I have said, was to prove that the accused had experience of firearms, acted voluntarily and was an untrustworthy witness. The Court in convicting him, found that he handled, in fact fired, the sub-machine gun; that he was a willing participant; and that his evi-dence was false. Thus, on the face of it, no prejudice could

have/ 27. have risen. After his conviction accused no 1 ad-mitted that he had shot the deceased but said thathe had done so accidentally. Mr Potgieter, whoappeared for accused no 2 on appeal, submitted thatthe proposed cross-examination may have elicitedthis admission and explanation from accused no 1whilst he was in the witness-box and before he closedhis case and that this might have significantly affec-ted the course of the trial. This appears to me tobe a purely speculative ground of potential prejudice.

(Cf. S v Gaba (supra)). It is, however, unnecessaryto express a final view in this regard in the lightof the decision I have reached on the merits of the

second special entry, which I now turn to consider,

28.

and the resultant order I propose making.This special entry is in substance that the presiding Judge failed to have due regard to a statement made by accused no 1 when addressing the Court on the merits of his defence and that he ought to have construed the statement as an application on no 1 accused's part to re-open his case, bearing in mind that he was a layman and at that stage unrepre-sented.The events giving rise to, and related to, this special entry are important:

(i) It was initially accused no l's case that he had remained in the car and had not shot the deceased. He gave evidence to that effect. It was convincingly

refuted by the evidence of Goosen and accused no 2.

Accused/ 29. Accused no 1 no doubt came to realise this.

(ii) Thus it was that during argument on the merits he said "Ek wil nou die Hof die waarheid vertel"; ek het die man geskiet en ek wil die Hof vertel hoe dit gebeur het." The learned Judge did not react to this statement by explaining to the accused his procedural rights or by asking him whether he wished to apply to reopen his case to explain what he con-tends actually happened. Instead it was decided, in the interests of the accused, not to take into account his admission that he had shot the deceased but no attention was directed at the rest of his statement, which may have presaged an exculpatory explanation.

(iii) In the course of the judgment following uponargument the court referred to this statement byaccused no 1 and said:

"In/

30. "In view of the fact that this was men- tioned by accused number 1 during the course of argument, this Court came to the conclusion that that admission should not be held against accused num- ber 1, but that in fairness to him the case should be adjudicated upon the evidence before the Court and ignoring that admission. The Court has accor- dingly approached the matter along these lines."

(iv) Having been found guilty on the murder charge

(and on certain others), accused no 1, in the courseof giving evidence in mitigation of sentence, testi-fied to the alleged inadvertent discharge of thesub-machine gun. He said that he did not know howto operate it and that he had no intention of firingit. When they arrived at Goosen's place after the

robbery,/

31. robbery, he told them, Goosen and his co-accused,

that he had fired it accidentally. He repeated this

explanation to a police officer at the Brixton Po-

lice Station. He said in evidence that when theMercedes Benz came towards him he thought that hewould be pinned between the two cars and in a stateof panic he accidentally fired. He added that hewas surprised that the bullet did not strike accusedno 2. This evidence was not really, or at leastnot effectively, challenged by cross-examination.Mr de Kock, who appeared for the State at the trial,merely asked him whether he had perhaps fired the

shot to prevent the Mercedes Benz driving off. This

he emphatically denied, reiterating that it was not

his/

32.

his intention to shoot at the car or the deceased.

(v) In the judgment on extenuating circumstancesthe Court, after referring to three decisions ofthis Court in which the significance of dolus even-tualis as an extenuating factor is. discussed, said:

"It is against the background of these principles that the Court approaches the issue of extenuating circumstances in the present case and in doing so, the Court bears in mind the findings of fact which were made by the Court in dealing with the facts of the case. In its pre-vious judgment the Court found as a fact that at the time the robberý was planned, it was known to the accused that the de-ceased would not offer resistance if he were to follow the policy of his firm and that that policy was to avoid risk of life as the payroll monies had been insured. The Court also bears in mind the fact that as part of the planning, it had been

arranged/

33.

arranged that accused number 2 would render the deceased incapable of offering resistance by striking him a blow with the fist.

The Court also bears in mind the war-nings which were given and, more par-ticularly, in the Cortina immediately prior to the robbery, by Goosen and by accused number 2. It is the view of the Court that, if regard is had thereto, then the possibility of re-sultant death of the deceased in conse-guence of the activities of the accused was foreseen as being remote and that, therefore, in the light of the dicta to which I have referred, this is a fac-tor which must be taken into considera-tion in assessing whether extenuating circumstances exist or not.

Mr Liebowitz, on behalf of accused number 2, was good enough to be of assistance to the Court in relation to the position of accused number 1, in view of the fact that the said accused is unrepresented, and in this connection referred the Court to the case of S v SEFUTI 1985 (1) S.A. 9 (AD).

He/

34.

He raised what was said in that case, in dealing with the evidence of accused num-ber 1 in respect of this issue of extenu-ating circumstances to the effect that he did not intend to fire the sub-machine gun and that in consequence of the sudden for-ward jerking movement of the Mercedes Benz, and his 'running away' as a result there-of, the shots went off in error. The Court has given consideration to this factor, but does not consider that it is an element which detracts from the for-seeability of the consequences of their conduct in respect of any of the accused and that it does not operate to disturb the finding of dolus eventualis ."

This judgment concludes with a finding that in thecase of all four accused extenuating circumstanceswere proved, and that the death of the deceased was

forseen as no more than a remote possibility. (In

the case of accused nos 3 and 4 additional grounds

for/

35.

for extenuation were found to exist.) In the lightof the conclusion in this judgment that in the case of each accused the degree of intent was dolus even-tualis, I have difficulty with the statement in the last paragraph of the passage quoted in so far as it suggests that the finding of dolus eventualis in re-spect of any of the accused was not disturbed. In the judgment on the merits, as mentioned at the start of this judgment, the Court, quite correctly on the evidence before it at that stage, found no 1 accused guilty of murder "the requisite intent being that of dolus directus". Thus the judgment on extenuation does in fact alter this finding in the case of accused no 1 by substituting

one/

36.

one of dolus eventualis. A further difficulty thejudgment on extenuation presents is that it is not made at all clear whether this substitution is based on a finding of fact that an accidental killing was proved (either on a balance of probabilities or as a reasonable possibility) or whether, for the purposes of reconsidering the degree of intention in the case of accused no 1, it was assumed that he did not delibe-rately kill the deceased. In the first two paragraphs of the quoted passage certain relevant findings of fact are set out. However, from what was said in the last paragraph, one cannot infer with any degree of certainty whether "this factor" was held to have been proved or is merely assumed. What is subsequently

said/ 37. said in the judgment for leave to appeal strengthensthe view that there was no such finding of fact. Irefer to the following passage in that judgmentgiving reasons for allowing the second special entry:

"Die rede hoekom ek dit sê, is dat ek van oordeel is dat 'n ander Hof wel tot die slot-som mag kom dat indien die omstandighede waaronder die skote afgegaan het vanuit die vuurwapen wat beskuldigde 1 hanteer het, verder ondersoek word, die Hof moontlik tot 'n ander slotsom sou gekom het, wat betref die aanklag van moord en of dit moord sou wees en of strafbare manslag en/of selfs iets wat 'n novus actus uitgemaak het, en wat tot gevolg sou hê dat die beskuldigdes on-skuldig bevind sou word op daardie beson-dere aanklag."

In the circumstances, and particularly since thisdefence was raised after conviction and not fullycanvassed by cross-examination, to my mind the correct

approach/

38.

approach is to conclude that no such finding of fact

was made in the Court a quo.

In the light of what accused no 1 said

in argument (as set out in para (ii) above) his rightsought to have been explained to him and, had he de-cided to apply for a re-opening of his case, as inall probability he would have, the merits of suchan application ought have been considered. ThisMr Jordaan, who appeared for the respondent on appeal,conceded. It is consequently unnecessary to considerwhether the evidence given by the accused in extenua-tion (see para (iv) above) could also to be taken into

account in deciding whether an application to re-open

ought to have been entertained. (Cf. S v Mavhungu

1981(1)/

39. 1981(1) SA 56(A) at 65F - H; but see S v Theron

1984(2) SA 868 (A) at 879 C - H.)Whether this irregularity resulted in prejudice to the four accused depends upon whether the Court a quo was correct in deciding that, even if the shots were accidentally fired, the accused were nevertheless guilty of murder.This question must in the first instance be examined with reference to the causitive element in the crime of murder. Viewed factually the planned robbery and unlawful assault upon the deceased were conditions sine qua non of the fatal end result. It is, however, generally acknowledged that causation in that sense is inadequate to determine legal liability:

It/ 40. It would extend liability beyond reasonable and rea-

listic limits. As Jansen JA in S v Daniëls en Ander

1983(3) SA 275 (A) at 331 B - G observes:

"Daar kan weinig twyfel bestaan dat in ons regspraak die bepaling van 'feitelike' oor-saaklike verband op die grondslag van die conditio sine qua non geskied (vgl S v Van As en 'n Ander 1967(4) SA 594(A) op 602D; en wat die onregmatige daad betref, Minis - ter of Police v Skosana 1977 (1) SA 31 (A)). Sonder sodanige verband tussen die dader se handeling en die beweerde, gewraakte gevolg is daar in die algemeen geen aanspreeklik-heid nie. Aan diè ander kant is dit ook dui-delik dat 'n dader nie aanspreeklik gestel be-hoort te word vir alle gevolge waarvan sy handeling 'n conditio sine qua non is nie -sy aanspreeklikheid sou dan te wyd strek en die grense van redelikheid, billikheid en regverdigheid oorskry. Beleidsoorwegings verg dat iewers 'n grens gestel moet word. Oor hoe die grens bepaal moet word, is daar geen eenstemmigheid onder ons skrywers oor die strafreg nie. 'n Paar voorbeelde sal dit

illustreer./...41.

illustreer. Volgens De Wet en Swanepoel Strafreg 3de uitg op 63 -64 geskied be-grensing met aanwending van die skuldver-eiste. Snyman Strafreg op 54 - 55 verg dat die handeling adekwaat ten opsigte van die gevolg moet wees (wat blykbaar onder andere daarop kan neerkom dat daar geen novus actus interveniens aanwesig moet wees nie - vgl op 49, 55, 59). F F W van Oosten Oorsaaklikheid by Moord en Strafbare Manslag (proefskrif 1981) meen dat daar naas skuld ook na wederregtelik-heid gekyk moet word (op 584 ev). Hunt South African Criminal Law and Procedure band II ("Common Law Crimes') op 327 vereis benewens voldoening aan die sine qua non-toets ook voldoening aan

'a further test of legal causation which may require X's conduct' (nl die van die dader) 'to be not only a sine qua non but a 'decisive' or 'substantial' or 'proximate' or 'direct' or 'ade-quate' cause of Y's death; or, otherwise put, it may require that no novus actus interveniens inter-rupt the chain of effects which can be traced back to X's act'."

42.

The same view is expressed by P M A Hunt, in a comment

on S v Masilela and Another, 1968(2) SA 558(A) in The

South African Law Journal Vol 85 (1968) 383 at 385:

"But the sine qua non is obviously in-sufficient as a general test of causation, for it spreads the net of liability ab-surdly wide. It serves as a test of 'fac-tual' causation, but in addition a test of 'legal' or 'policy' causation must be for-mulated. X's conduct must be not only a sine qua non of Y's death, but also the 'proximate' or an 'adequate' cause of it. Expressed negatively: not only must X's conduct operate as a sine qua non, but there must be no novus actus interveniens. What is a novus actus interveniens depends very much on the circumstances. See, ge-nerally, J.C. Smith and B. Hogan, Criminal Law (1965), pp. 171-3; R.M. Perkins, Cri-minal Law (1957)), pp. 596 ff.; H.L.A. Hart and A.M. Honoré, Causation in the Law (1959), ch. XII. Even X's own subsequent conduct may rank as a novus actus if it takes the form of an innocent or even neg-

ligent/.....

43. ligent act which is completely inde-pendent (in conception and execution) of his original conduct...."

Thus, should a proper investigation of the issue

establish as a reasonable possibility that the shotswere fired accidentally, it may well be, dependingon the proved facts,that the shots were, adoptingHunt's phrase, "completely independent (in concep-tion and execution) of his original conduct." (Cf.

S v Masilela and Another (supra) at 571D, 573A andD - E, and 574A.) If the causitive link is not for-ged in the case of accused no 1 (he being a personwho, albeit accidentally, fired the shots) there isa fortiori scope - again depending on the proved facts

- for a cogent argument that the other accused are not

to be/

44.

to be found guilty of murder on an application ofthe doctrine of common purpose.There is a further ground on which the conviction of murder might be challenged, if it is accepted that the killing was accidental. Dolus eventualis is attributed to an accused person when-ever the possibility of death as a consequence of the unlawful act is foreseen (and is persisted in), whether or not the precise manner in which death eventuated was foreseen or contemplated. See R v Lewis, 1958(3) SA 107 (A) at 109H; S v Msiza 1984 (1) P.H. H116 (AD) and S v Nhlapo and Another 1981(2) SA 744(A) at 750 F - G. In the last mentioned decision Van Heerden JA posed the question in this form:

"whether/

45. "whether the unforseeh manner in which a foreseen consequence was caused is legally relevant; in other words, whether dolus eventualis requires fore-sight not only of a consequence but also of the causal sequence leading to the consequence."

Thus,with reference to the requirement of forsee-ability as well, an argument may be profitably ad-vanced on behalf of the accused, should it appearthat the shots were accidentally fired.

In the circumstances, since the possibilityof prejudice arising from the irregularity cannot beruled out, the conviction and sentence on count 1 cannotstand and the matter is to be remitted to the trialCourt to give no 1 accused the opportunity of applyingto re-open his case and, should the application be

granted,/

46. granted, to allow further evidence to be led on the

question whether the deceased was accidentally shot.

Councel were all agreed that, should there be a risk

of prejudice, the matter ought to be remitted. (If

this results in a finding that no 1 accused acted

negligently in killing the deceased, the question whether

his co-accused ought also be found guilty of culpable

homocide will arise - cf. S v Nkwenja en 'n Ander

1985(2) SA 560 (A).)

All four accused were granted leave to

appeal against their convictions and sentences on

count 1. The decision on the second special entry

requires that they be set aside. This decision is

also pertinent to the sentences imposed on count

2, the robbery charge since one may infer that

the finding that the deceased was deliberately

killed/....47. killed (murder: dolus eventualis) was,or may well

have been, taken into account as an aggravating fac-tor in deciding on an appropriate sentence for therobbery conviction. But leave to appeal against sen-tence on count 2 was restricted to accused no 1. Itis, however, unnecessary todecide whether this pre-sents a difficulty in setting aside the sentences oncount 2 in respect of accused nos 2, 3 and 4 whichcannot by the exercise of the wide powers conferredby the provisions of sec 22 of the Supreme Court Act,59 of 1959, be overcome. Mr Jordaan, very properly,agreed that in the special circumstances the mattershould be dealt with as if they too had been grantedsuch leave to appeal and that their sentences on the

robbery/

48. robbery charge ought also to be set aside.

In the result:

1. The appeals are allowed.

2. In the case of each accused the con-viction and sentence on count 1 and the sentence on count 2 are set aside.

3. The matter is remitted to the Court a quo to consider the re-opening

of the case of accused no 1, if so requested by him, and, should the application be granted, to hear further evidence.

M E KUMLEBEN JUDGE OF APPEAL

VAN HEERDEN) JJA -ConcurNESTADT ) JJA -Concur