S v Swarts (28/90) [1993] ZASCA 96 (2 June 1993)

S v Swarts (28/90) [1993] ZASCA 96 (2 June 1993)

The Supreme Court of Appeal found that the appellant did not actively associate himself with the acts of murder and attempted murder committed by his co-accused. The evidence did not establish that the appellant had the intent to kill or that he participated in the shootings. His mere presence at the scene and subsequent departure with the co-accused did not amount to active association or common purpose. The trial court's finding that the appellant was guilty of murder and attempted murder was not supported by the evidence. Furthermore, the facts did not justify a conviction for assault with intent to do grievous bodily harm as a competent verdict under section 258 of Act 51 of 1977. The...

Citation
[1993] ZASCA 96
Parties
Appellant: S M C Swarts; Respondent: The State
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
2 June 1993
Case Number
28/90
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal upheld. Convictions and sentences on counts 2 (murder) and 3 (attempted murder) set aside.
Judges
Van Coller, Vivier, F H Grosskopf
Legal Topics
Common Purpose, Murder, Attempted Murder, Active Association, Assault With Intent to Do Grievous Bodily Harm
Criminal Law Common Purpose Murder Attempted Murder Active Association Assault With Intent to Do Grievous Bodily Harm

Case Brief

Summary, issues, holding and outcome

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Parties

S M C Swarts

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the appellant actively associated himself with the acts of murder and attempted murder committed by co-accused.
  2. 2 Whether the appellant's conviction for murder and attempted murder was justified on the evidence.
  3. 3 Whether the appellant could be convicted of assault with intent to do grievous bodily harm as a competent verdict.

Ratio Decidendi

The Supreme Court of Appeal found that the appellant did not actively associate himself with the acts of murder and attempted murder committed by his co-accused. The evidence did not establish that the appellant had the intent to kill or that he participated in the shootings. His mere presence at the scene and subsequent departure with the co-accused did not amount to active association or common purpose. The trial court's finding that the appellant was guilty of murder and attempted murder was not supported by the evidence. Furthermore, the facts did not justify a conviction for assault with intent to do grievous bodily harm as a competent verdict under section 258 of Act 51 of 1977. The...

Court Disposition

Appeal upheld. Convictions and sentences on counts 2 (murder) and 3 (attempted murder) set aside.

Orders

  • The appeal succeeds.
  • The appellant's convictions and sentences on counts 2 and 3 are set aside.