S v Nomakhala (111/88) [1989] ZASCA 85; [1990] 3 All SA 985 (A) ; 1990 (1) SACR 300 (A) (27 July 1989)

S v Nomakhala (111/88) [1989] ZASCA 85; [1990] 3 All SA 985 (A) ; 1990 (1) SACR 300 (A) (27 July 1989)

The Supreme Court of Appeal found that the trial court erred in concluding that both appellants had the necessary intention to kill and had actively associated themselves with the common purpose to murder the deceased. The first appellant, upon realising the true intention of the perpetrators, refused to participate further and withdrew from the scene, which constituted effective dissociation. The second appellant, a young man, was at most a spectator and his act of holding the deceased's hand could not be unequivocally interpreted as aggression or active participation. The State failed to prove beyond reasonable doubt that either appellant had the requisite intention or had made common...

Citation
[1989] ZASCA 85
Parties
Appellant: Ncamile Nomakhlala; Appellant: Sandile ("Bunny") Jacobs; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 July 1989
Case Number
111/88
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeals upheld; convictions and sentences set aside.
Judges
CORBETT, HOEXTER, F H GROSSKOPF
Legal Topics
Murder, Common Purpose, Dolus Eventualis, Admissibility of Statements, Dissociation, Burden of Proof
Criminal Law Murder Common Purpose Dolus Eventualis Admissibility of Statements Dissociation Burden of Proof

Case Brief

Summary, issues, holding and outcome

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Parties

Ncamile Nomakhlala

Appellant

Sandile ("Bunny") Jacobs

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the appellants had the necessary intention to kill (dolus eventualis).
  2. 2 Whether the appellants actively associated themselves with the common purpose to murder the deceased.
  3. 3 Whether the trial court erred in drawing adverse inferences from the appellants' failure to testify.

Ratio Decidendi

The Supreme Court of Appeal found that the trial court erred in concluding that both appellants had the necessary intention to kill and had actively associated themselves with the common purpose to murder the deceased. The first appellant, upon realising the true intention of the perpetrators, refused to participate further and withdrew from the scene, which constituted effective dissociation. The second appellant, a young man, was at most a spectator and his act of holding the deceased's hand could not be unequivocally interpreted as aggression or active participation. The State failed to prove beyond reasonable doubt that either appellant had the requisite intention or had made common...

Court Disposition

Appeals upheld; convictions and sentences set aside.

Orders

  • The appeals of both appellants are upheld.
  • The convictions and sentences of both appellants are set aside.