Shange and Others v S (AR152/2015) [2016] ZAKZPHC 115; [2017] 3 All SA 289 (KZP) (15 December 2016)

Shange and Others v S (AR152/2015) [2016] ZAKZPHC 115; [2017] 3 All SA 289 (KZP) (15 December 2016)

The court found that the convictions for theft of motor vehicles (counts 1-4) and possession of firearms and ammunition (counts 27-30) could not be sustained due to lack of direct evidence and failure to prove knowledge or joint possession. The doctrine of common purpose was correctly applied to the primary offences at Charters and Penicuik, as the evidence established a prior agreement among the accused to commit the robberies and associated violent acts. The subsidiary offences, including attempted murder and robbery, were found to be within the scope of the prior agreement, except for certain counts where the evidence did not support foreseeability or participation. The trial court...

Citation
[2016] ZAKZPHC 115
Parties
Appellant: Mfanufikile Goodwill Shange; Appellant: Fox Sithole; Appellant: Zofania Mthethwa; Appellant: Sakhele Jan Sibisi; Appellant: Fani Johannes Mbonambi; Appellant: Sibusiso Benedict Shabalala; Appellant: Xolani Mhlunzi Buthelezi; Appellant: Themba Nqobitzitha Khatide; Appellant: Mpho Patrick Tsotensi; Appellant: Flavio Jose Mbonambi; Appellant: Bhekinkosi Leonard Kunene; Appellant: Johannes Khehla Langa; Appellant: Sipho Mhlongo; Appellant: Thabo Oscar Mahoa; Appellant: Sipho Percy Kunene; Appellant: Thabani Mgisi Zondo; Appellant: Lucky Buthez Phasha; Appellant: Vusi Pele Njoko; Appellant: Sipho Vusi Mpondo Gumede; Appellant: Bongani Shipa Tshabalala; Appellant: Ernest Ndlangamandla; Appellant: Hamilton Lizoko Mazibuko; Appellant: Mbuso Mncube; Appellant: Eddie Kalanga Ubisi; Appellant: Thulani Blessing Mthethwa; Respondent: The State
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
15 December 2016
Case Number
AR152/2015
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Sentence
Outcome
Appeal partly upheld; convictions and sentences on counts 1-4, 15, 18, 21-23, 27-30 set aside for most accused; convictions on counts 6-14 confirmed; life sentence on count 21 set aside; sentences on related counts to run concurrently.
Judges
Koen, Kruger, Jappie
Legal Topics
Common Purpose, Attempted Murder, Armed Robbery, Firearms Control Act, Circumstantial Evidence, Sentence Concurrency
Criminal Law Civil Procedure Common Purpose Attempted Murder Armed Robbery Firearms Control Act Circumstantial Evidence Sentence Concurrency

Case Brief

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Parties

Mfanufikile Goodwill Shange

Appellant

Fox Sithole

Appellant

Zofania Mthethwa

Appellant

Sakhele Jan Sibisi

Appellant

Fani Johannes Mbonambi

Appellant

Sibusiso Benedict Shabalala

Appellant

Xolani Mhlunzi Buthelezi

Appellant

Themba Nqobitzitha Khatide

Appellant

Mpho Patrick Tsotensi

Appellant

Flavio Jose Mbonambi

Appellant

Bhekinkosi Leonard Kunene

Appellant

Johannes Khehla Langa

Appellant

Sipho Mhlongo

Appellant

Thabo Oscar Mahoa

Appellant

Sipho Percy Kunene

Appellant

Thabani Mgisi Zondo

Appellant

Lucky Buthez Phasha

Appellant

Vusi Pele Njoko

Appellant

Sipho Vusi Mpondo Gumede

Appellant

Bongani Shipa Tshabalala

Appellant

Ernest Ndlangamandla

Appellant

Hamilton Lizoko Mazibuko

Appellant

Mbuso Mncube

Appellant

Eddie Kalanga Ubisi

Appellant

Thulani Blessing Mthethwa

Appellant

The State

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Sentence

Legal Issues

  1. 1 Whether the convictions for theft of motor vehicles (counts 1-4) were sustainable.
  2. 2 Whether convictions for possession of firearms and ammunition (counts 27-30) were justified.
  3. 3 Whether the doctrine of common purpose applied to all accused for both Charters and Penicuik incidents.

Ratio Decidendi

The court found that the convictions for theft of motor vehicles (counts 1-4) and possession of firearms and ammunition (counts 27-30) could not be sustained due to lack of direct evidence and failure to prove knowledge or joint possession. The doctrine of common purpose was correctly applied to the primary offences at Charters and Penicuik, as the evidence established a prior agreement among the accused to commit the robberies and associated violent acts. The subsidiary offences, including attempted murder and robbery, were found to be within the scope of the prior agreement, except for certain counts where the evidence did not support foreseeability or participation. The trial court...

Court Disposition

Appeal partly upheld; convictions and sentences on counts 1-4, 15, 18, 21-23, 27-30 set aside for most accused; convictions on counts 6-14 confirmed; life sentence on count 21 set aside; sentences on related counts to run concurrently.

Orders

  • Convictions and sentences on counts 1, 2, 3, 4, 15, 18, 21, 22, 23, 27, 28, 29 and 30 set aside for accused 2, 3, 4, 6, 9, 11, 13, 15, 17, 18, 21, 23 and 24; they are found not guilty.
  • Convictions and sentences on counts 1, 2, 3, 4, 15, 18, 21, 22 and 23 set aside for accused 1, 5, 7, 8, 14, 16, 19, 20, 22, 25 and 26; they are found not guilty.