S v Ngubeni and Others (494/88) [1989] ZASCA 84 (27 July 1989)

S v Ngubeni and Others (494/88) [1989] ZASCA 84 (27 July 1989)

The court found that, although the appellants participated in a planned and violent robbery, the evidence did not establish beyond reasonable doubt that each appellant subjectively foresaw and reconciled themselves to the possibility that one of their group would commit a senseless murder after the victim had been subdued and disarmed. The fatal shooting of the deceased was not shown to be within the scope of the common purpose to rob, nor was it a reasonably foreseeable consequence of the plan as executed. The court held that the trial court erred in convicting the appellants of murder under the doctrine of common purpose and in imposing the death sentence for both murder and robbery....

Citation
[1989] ZASCA 84
Parties
Appellant: Jeremiah Ngubeni; Appellant: James Moketi Tshabalala; Appellant: Thulani Shezi; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 July 1989
Case Number
494/88
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal against murder convictions and sentences succeeds; convictions and sentences for murder set aside. Appeal against convictions for robbery with aggravating circumstances dismissed; death sentences for robbery set aside and replaced with fifteen years' imprisonment for each appellant.
Judges
F H Grosskopf, Joubert, E M Grosskopf
Legal Topics
Common Purpose, Dolus Eventualis, Robbery With Aggravating Circumstances, Murder, Culpa, Sentencing
Criminal Law Common Purpose Dolus Eventualis Robbery With Aggravating Circumstances Murder Culpa Sentencing

Case Brief

Summary, issues, holding and outcome

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Parties

Jeremiah Ngubeni

Appellant

James Moketi Tshabalala

Appellant

Thulani Shezi

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the appellants were correctly convicted of murder under the doctrine of common purpose.
  2. 2 Whether the appellants foresaw the possibility of death resulting from their actions (dolus eventualis).
  3. 3 Whether the appellants are liable for robbery with aggravating circumstances.

Ratio Decidendi

The court found that, although the appellants participated in a planned and violent robbery, the evidence did not establish beyond reasonable doubt that each appellant subjectively foresaw and reconciled themselves to the possibility that one of their group would commit a senseless murder after the victim had been subdued and disarmed. The fatal shooting of the deceased was not shown to be within the scope of the common purpose to rob, nor was it a reasonably foreseeable consequence of the plan as executed. The court held that the trial court erred in convicting the appellants of murder under the doctrine of common purpose and in imposing the death sentence for both murder and robbery....

Court Disposition

Appeal against murder convictions and sentences succeeds; convictions and sentences for murder set aside. Appeal against convictions for robbery with aggravating circumstances dismissed; death sentences for robbery set aside and replaced with fifteen years' imprisonment for each appellant.

Orders

  • The appeal of each appellant against conviction and sentence for murder is upheld; the conviction and sentence for murder are set aside.
  • The appeal of each appellant against conviction for robbery with aggravating circumstances is dismissed.