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S v Motaugn 1990 (4) SA 485 (A) Liability of the joiner-in In July 1985, 4 young men from the Duduza Township on the East Rand were shot and killed during rioting.• The belief was held that these men had been shot by police officers. Their funeral was held on July 20th 1985. At the funeral a woman r...

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CASES Monday, 15 November 2021

07:14

S v Motaugn 1990 (4) SA 485 (A) - Liability of the joiner-in • In July 1985, 4 young men from the Duduza Township on the East Rand were shot and killed during rioting. • The belief was held that these men had been shot by police officers. • Their funeral was held on July 20th 1985. • At the funeral a woman referred to as ‘Maki’ was identified as a police informer and the lover of a police officer. • A group of the crowd near the funeral caught hold of Maki and very soon she was surrounded by a blood-thirsty and violent mob. • Maki was then severely battered and set alight. • The scope of the enquiry at the trial was was largely confined to the state of mind and intention of each identifiable aggressor and the nature and extent of their criminal liability. • 9 late-comers were convicted of murder under the doctrine of common purpose. • These late-comers joined in after the deceased had sustained her fatal injuries. (medical evidence could not confirm if they in any way expedited her death). • This part of the attack is caught on camera. ○ The footage shows the following: 1. She is struck on the legs with a stick. 2. Lots of hitting. 3. Stones are thrown. 4. Trampling. 5. A hosepipe was used on her • Accused no.1 says that she drank a bottle of beer before coming to the funeral which left her “just happy and warm”. • She then pushed her way to the inner circle and kicked the deceased on the buttocks.

• She said that she was angry that she was a police informer and wanted her to feel pain.

S v Thomo (1969) • Using a panga the second appellant had launched a violent attack upon the deceased in the course of which he sustained mortal head injuries. • After the second appellant's attack upon the deceased had ended, and while the deceased was still alive, the third appellant (accused No 4 at the trial) intervened: While the deceased was being held by a bystander the third appellant, with the intent to kill, stabbed the deceased several times in the back. • It could not be found, however, that these stab wounds were causally related to the deceased's death. • The trial Court convicted the third appellant of murder. • On appeal one of the questions which fell to be decided was whether the third appellant had been guilty of murder or the lesser crime of attempted murder.

Wessels JA - Thomo Appeal • The rule is contrary to accepted principle and authority, which have consistently required that on a charge of murder it must be established that, intending the death of his victim, the accused, irrespective of the fact whether he is charged as principal or socius, was guilty of unlawful conduct which caused or causally contributed to the death of the deceased. • Even though we don’t need to prove who caused the result the fact remains that the result was caused by 1 or more than 1 already - before the joiner in joined in! - Difference between having to prove causation and causation being present - fact remains, someone did cause the death!

Practical advantages • It is very difficult to say which injuries caused the ‘fatal blow’ - because of this indetermination the doctrine of common purpose could lose its value - see Thebus on the the value of common purpose.

• Surely a person who joins in a murderous assault ‘ratifies’ the conduct that took place before their joining in? Would this not be ‘retrospective responsibility’? • persons--the vital point remains that an accused cannot be guilty of murder unless he bears responsibility for conduct which has caused the victim's death. • Thus, to hold an accused liable for murder on the basis of an association with the crime only after all the acts contributing to the victim's death have already been committed would involve holding him responsible ex post facto tor such acts. • He criminal law is firmly opposed to liability based on ex post facto or retrospective responsibility

What should happen to the joiner-in then? HELD: • On the Court a quo's view of the facts the appropriate verdict in the case of each appellant should have been one attempted murder.. Q 1) Simon wants to kill Susan. Simon asks Thando for assistance. No conspiracy between the two is proven in court. If Simon inflicts fatal wounds on Susan. A few seconds later, but while Susan is still alive, Thando stabs Susan in the chest. What crime could Thando be guilty of? 2) Would your answer change if evidence presented in court reveals the conspiracy between Simon and Thando to kill Susan? _____________________________________________________________ ___________________________

EXAMPLE 1 _____________________________________________________________ ___________________________ • Billy decides to break up with his long time girlfriend Sally after getting involved with another woman at work. S ll i h tb k d d id th t if h ’t h Bill

• Sally is heartbroken and decides that if she can’t have Billy, no one can. • She plots his murder with her side lover Thabang. • Thabang and Sally patiently wait for Billy outside his home in Braamfontein. • When Billy opens the gate to leave for work they confront him. • When Billy tells them that he has no time for this and is late for work, Sally pulls out a gun and shoots him in the chest. • Billy falls to the ground and cries out in pain. • Cally sees the incident and decides that she wants part of the action. • She pulls a knife out of her sock and stabs Billy in the back.

Joining-in cases - ‘The term ‘joining-in’ is used to describe a person who, in the absence of common purpose to kill, but with intent to kill, joins in a murderous attack after the victim has been fatally wounded, but while he or she is still alive, and whose conduct does NOT causally contribute to the death of the victim. - Uncertainty as to whether such a person can be found guilty of the murder of a person. - Motaung 1. Cally acceded to the common purpose to kill Billy only after he had been fatally injured by Sally. 2. Intention to kill present. 3. If Cally’s conduct did not causally contribute the death of Billy, she can be considered a ‘joinder-in’. 4. She would then be found guilty of attempted murder on the strength of Motaung. 5. If Cally’s conduct causally contributed to Billy’s death, causation would be proved and she would be liable for murder. (No imputation necessary). But surely Cally stabbing Billy proves that she causally contributed to Billy’s death? No that straightforward! • Using a panga the second appellant had launched a violent attack upon the deceased in the course of which he sustained mortal head injuries.

• After the second appellant's attack upon the deceased had ended, and while the deceased was still alive, the third appellant (accused No 4 at the trial) intervened: While the deceased was being held by a bystander the third appellant, with the intent to kill, stabbed the deceased several times in the back. • It could not be found, however, that these stab wounds were causally related to the deceased's death. • The trial Court convicted the third appellant of murder. • On appeal one of the questions which fell to be decided was whether the third appellant had been guilty of murder or the lesser crime of attempted murder.

S v Mbambo 1965 (2) S.A 845 (A). • In this case the second appellant had thrown a stone at the deceased and inflicted a head injury. • The first appellant, who was not proved to have been acting in concert with the second appellant, then stabbed the deceased in the chest. • The head injury could have caused death but it would not inevitably have done so if some other act or cause had not supervened. • The medical evidence on the cause of death did not exclude the reasonable possibility that the stab wounds operated independently (ie did not combine physiologically with the head wound to produce the deceased's death) and so, even if the head wound had been, mortal, according to Wessels JA, the second appellant had not caused the deceased's death. • The stab wounds inflicted by the first appellant were held to constitute a nova causa that interrupted the chain of causation between the second appellant's conduct and the death of the deceased. • The stab wounds inflicted by the first appellant were considered by the court to be mortal in that they would inevitably have caused death. • The first appellant's appeal against a murder conviction was therefore dismissed. • The answer appears to be that, on the one hand, Jansen IA examined the first appellant's conduct in isolation from that of the second appellant and did not consider it significant that the wounds inflicted by the first appellant and the wound possibly inflicted by the second appellant did not combine physiologically to bring about the deceased's

appellant did not combine physiologically to bring about the deceased s death. • On the other hand, Nicholas AJA clearly gave weight to the fact that there was no evidence that the back and head wounds combined (physiologically) to produce death'13 and Trengove IA concurred with Nicholas AJA on this point. Answer? Prior agreement. D is liable for murder

S v Singo 1993 (2) SA 765 (A) - withdrawal from common purpose • The appellant, one of 7 accused, was convicted of murder. • A female scholar had named the deceased as one of three elderly women who had bewitched her. • The matter was reported to the headman, and the deceased and the other two women were summoned to attend a meeting at the headman’s kraal where a large number of people had gathered. • The gathered crowd became restless and noisy. The headman removed the 3 women to his hut and chased the crowd away. The crowd dispersed but there was some dissatisfaction. • The crowd then converged on her, (the deceased) assaulting her with sticks and stones and left her dying on the ground. When some of the crowd had moved on a distance, the deceased (who was now seriously injured) got up and, according to one witness, said that ‘she will finish them all’. The crowd attacked her again and she was stoned and killed. • The trial court had to decide the extent of the appellants participation in this killing. • According to his evidence, he was at the meeting at the headman’s kraal and when the meeting broke up, he left with the group which attacked the deceased. • He had thrown two stones, the size of his fist, from a distance of 3-4metres. One of the stones struck the deceased and, in his evidence, the appellant acknowledged that he intended it to hit the deceased. • Intention to kill?

Can intention be proven even if an ‘accused had no i t ti f killi th d d’?

intention of killing the deceased’? • The appellant maintained throughout that he had no intention to kill the deceased. • The mob had attacked the deceased (with a view to kill her) after a suggestion was made by accused no.7 to kill her. • Trial court: ‘only one inference can be drawn and that is that the accused in fact had the common intent to kill the deceased and that he acted in association with the crowd in executing that intent.’ Trial Court: • The trial court convicted him of participating in a common purpose to murder the deceased. The appellant appealed to the Appellate Division against his conviction, placing the limited question of the extent of his involvement before the court. Issues raised on appeal: • The problem arising from the appellant’s evidence was that of ‘continuing the assault to the very end.’ • There were two stages to the assault and the appellant was not present at the second stage. • There was reasonable possibility that the deceased’s fatal injuries were inflicted at the second stage. (Burden of proof?) • This raised the question whether the accused could properly be convicted of murder where he had discontinued his assault on the deceased PRIOR to her receiving mortal injuries. • Finding? ‘In this case the accused at no stage even says that he had a change of mind or a change in intention. He simply stopped because he says his shoulder was injured.’ SCA finding: • It is clear that, IF the appellant had effectively disassociated himself from the common purpose prior to the infliction of the fatal injuries on the deceased, he could NOT be convicted of murder. • It is clear that in such cases liability requires, in essence, that the accused must have the intent, in common with the other participants, to commit the substantive crime charged (in this case,

murder) and that there must be an active association by him with the conduct of the others for the attainment of common purpose. • But did he not have intent during the first stage? • All that remains is to apply the above principles to the facts of the present case - it is accepted that after throwing the 2 stones, the appellant was hurt and left the scene to go home. • It is clear that at that stage he decided to end his active participation in the assault. • It is true that his change of intent was not, on the evidence, caused by moral considerations… •Will this suffice to acquit him of murder? A purely factual question to be answered: The question is a purely factual one… DID HE CEASE HAVING THE INTENTION TO KILL? • For the reasons aforestated, I consider that the appellant effectively disassociated himself from the actions of the crowd before the deceased received her fatal wounds. • He accordingly cannot be found guilty of murder and his conviction must be set aside. • However did actively participate in the initial stage of the attack – and in that stage he did possess the intention to kill. • What crime would you find him guilty of? • The appeal is allowed. The conviction of murder is set aside and replaced with a conviction of attempted murder.

Class discussion • A group of individuals head to Y’s home who has been accused of raping A’s sister. • A, B and C enter Y’s home and throw him in front of the crowd who begin hurling accusations at him.

• Y tries to run away but the crowd starts to pelt him with rocks and sticks. • X (who does not pelt Y with anything) is very upset and pushes her way to the inner circle and kicks Y on the buttocks. • She later states that she was upset about what happened to A’s sister and wanted to hurt Y. • Soon after X’s kick, Y is hit with a large stone on his head and dies instantly. • It is uncertain who threw the stone that killed Y.

Thebus: • The appellants were convicted on one count of murder and two counts of attempted murder • A group of residents were protesting the presence of certain alleged drug dealers. These residents drove in a motorcade of 5-6 vehicles past the house of C (one of the alleged drug dealers). • C opens fire on the motorcade and some members of the group alighted from their vehicles and returned fire. • In the resulting crossfire, a 7 year old girl was fatally shot and 2 others wounded. • At the trial, a witness for the state testified that he had seen the 1st appellant standing near a vehicle holding a pick handle, while the 2nd appellant retrieved spent cartridges discharged from the firearms of other members of the group. • He further testified that he had seen the 2nd appellant holding a gun BUT NOT USING IT. (1) X must have been present at the scene where the violence was being committed; (2) X must have been aware of the assault on Y by somebody else; (3) X must have intended to make common cause with the person or persons committing the assault; (4) X must have manifested his sharing of a common purpose by himself performing some act of association with the particular conduct of the others; and (5) X must have intended to kill Y. Intention through DE in the following way:...