Court name
Supreme Court
Case name
S v Gurirab and Others
Media neutral citation
[2008] NASC 1



IN THE SUPREME COURT OF NAMIBIA



REPORTABLE
CASE NO.: SA 12/2002





IN THE SUPREME COURT OF NAMIBIA







In the matter between:






ELIFAS GURIRAB



JOHNY FRANS MOSES



DENNIS KAUTWIMA

FIRST APPELLANT



SECOND APPELLANT



THIRD APPELLANT





And






THE STATE RESPONDENT







CORAM:  
        
Shivute CJ, Maritz JA
et Strydom AJA.



HEARD ON:       
        
2007/10/15




DELIVERED ON:   
2008/02/07






APPEAL JUDGMENT







STRYDOM AJA: [1] The three appellants appeared in the High Court of Namibia on two counts, namely Murder and Robbery with aggravating circumstances as defined in sec 1 of the Criminal Procedure Act, Act 51 of 1977 (the Act). On the first charge it was alleged that they, on the 18th January 1996, and at the farm Verreweg, unlawfully and intentionally killed one Joseph F Oosthuizen. On the second charge it was alleged that they threatened to kill one Hester Oosthuizen and then robbed her of N$900,00 and N$300,00.




[2]     

The appellants pleaded not guilty to all the charges and after a somewhat lengthy trial first appellant was convicted of attempted murder and robbery with aggravated circumstances and second and third appellants were convicted on both counts as charged. Fairly lengthy sentences of imprisonment were imposed by the learned Judge a quo. The appellants were throughout the trial represented by legal practitioners.




[3]     

Subsequently all the appellants applied for leave to appeal to the Supreme Court of Namibia. Leave was granted to the first appellant to appeal against his conviction of attempted murder. The applications of second and third appellants were refused. They in turn petitioned the Chief Justice for leave to appeal in terms of sec. 316 (6) of the Act. Both petitions were successful and appellants were granted leave to appeal against their convictions and sentences.




[4]     

Before the appeal was argued first appellant was invited, on instructions by the Chief Justice, to address argument on the question whether his conviction of attempted murder, on count 1, should not be set aside and substituted with a conviction of murder, and if the conviction is altered to one of murder, to present argument on why the sentence should not also be increased.




[5]     

Because leave to appeal was granted, also to second and third appellants, the appeals were heard together. The appellants were again represented by counsel, namely Mr Mostert, who appeared for first appellant, and Mr Grobler, who appeared on behalf of second and third appellants. Ms Miller appeared on behalf of the State.




[6]     

After argument was heard we handed down the following order and indicated that our reasons would follow later. The order handed down provided as follows:



"IT IS ORDERED:






1.      

That the conviction of the first appellant of the crime of attempted murder and the sentence imposed in respect of that conviction in the High Court of Namibia are set aside and the following orders are substituted:




(a)     

'That the first accused is convicted of the crime of murder.'




(b)     

'That the first accused is sentenced to 18 years imprisonment.'




2.      

That the sentence of 18 years imprisonment is antedated to 1 November 1999.




3.      

That the first appellant’s appeal against his conviction of crime of robbery with aggravating circumstances is dismissed.




4.      

That the order of the High Court of Namibia that 6 years imprisonment imposed in respect of the first appellant’s conviction of the crime of Robbery with aggravating circumstances is to be served concurrently with the sentence imposed in respect of the crime of murder is confirmed.




5.      

That the appeal of the second appellant against his convictions is dismissed.




6.      

That the appeal of the third appellant against his convictions and sentences succeeds. The convictions and sentences are set aside and the following order is substituted:



(a)     
'That the third accused is found not guilty and discharged.'








[7]     
Hereafter follow the reasons in support of the above order.




[8]     

In the early evening of the 18th January 1996 first appellant, accompanied by two other persons, left Grootfontein in the motorcar of the first appellant. They travelled for about 67 kilometres on a gravel road until they came to the farm of the deceased, Verreweg. The car was left next to the road but hidden among some bushes. First appellant and the two other persons then walked for about a kilometre until they came to the farm homestead.




[9]     

At the homestead they hid among some bushes near to where the engine room was and where electricity was generated for the homestead. They sat down and waited for a considerable period of time until the deceased approached from the house, ostensibly to switch off the engine.




[10]    

When the deceased was approaching the three people donned balaclavas and two pistols were removed from a sack which was carried by one of the persons. When the deceased reached the engine room he was set upon and after, what seemed to have been a heavy fight, he was overpowered. His hands were bound behind his back and a piece of cloth was bound, very tightly, around his mouth and nose to stop him from screaming. According to the doctor, who held the post mortem on the body of the deceased, the main cause of death was asphyxiation.




[11]    

The deceased was left where he was trussed up and the three persons then ran to the house where they accosted Mrs Oosthuizen just as she was coming out of the house in search of her husband, the deceased. Mrs Oosthuizen was threatened with a pistol by one of the persons and they gained entrance into the house where they searched and took her wallet, containing some money. They also gained entrance to the safe in the house where they removed an unknown amount of money. Some of the money was in plastic bank bags of Standard Bank and consisted of coins.




[12]    

The three persons left the house together and Mrs Oosthuizen, assisted by some of the farm labourers, went to a neighbouring farm from where she summoned the police because she could not find the telephone at its usual place.




[13]    

Mrs Oosthuizen was not able to identify any of the assailants but she testified that two of them wore balaclavas whereas the third person did not wear any disguise.




[14]    

During investigation the police found a balaclava at the engine room which must have come off during the scuffle with the deceased. The police was also able to follow three sets of footprints from the homestead to a place next to the road where it was clear that a motorcar had been parked and where some blue paint, which had been scratched off by bushes, was also found. According to the police trackers the footprints were made by Hang Ten sandals, “veldskoene” and a pair of smooth heeled shoes. From the tyre marks left by the motorcar the trackers were able to establish that the car, when it left, drove in the direction of Grootfontein.




[15]    

It had rained the previous afternoon or early evening and in order to protect the footprints the police covered parts of them for later comparison if suspects would be found.




[16]    

The discovery, by the police, of the balaclava at the scene of the attack on the deceased, led them to the branch of Pep Stores in Grootfontein and from there the trail led to the first appellant. It seems that the buying of balaclavas in Grootfontein in mid summer did not go unnoticed and the manager of Pep Stores was not only able to give a description of the person who had bought the balaclavas but also of the car in which the person had left the shop.




[17]    

First appellant was arrested the day after the robbery and killing of the deceased occurred. He initially denied any complicity in the crimes. He was taken to the scene where the crimes were committed and it was found that his shoes matched one of the sets of footprints found by the police.




[18]    

After further questioning first appellant decided to make a statement. First Appellant was questioned by a police officer, one Saunderson, who introduced himself as a lawyer. However, first appellant testified that he was not taken in by this ruse and he stated that he willingly told his story to the police.




[19]    

According to first appellant the two persons who accompanied him to the farm Verreweg were second and third appellants. He stated that he was approached by second appellant some few days before the incident took place and requested to buy two balaclavas. He went to Pep Stores and bought the balaclavas. Thereafter, and on the late afternoon of the 18th January, second appellant asked him to take him to a farm where he wanted to obtain work. Before leaving town second appellant told him to go to the police barracks and there they picked up the third appellant.




[20]    

First appellant said that he did not know where the farm was and he was directed, mainly by the second appellant. On the way second and third appellants spoke in Oshiwambo and he could not understand what they were saying as he is Damara speaking. At a certain point he was told to stop the car because it was forbidden for cars to come onto the property at night. He wanted to stay with the car but second appellant told him to accompany him and the third appellant. They then left on foot for the homestead.




[21]    

When they arrived at the homestead they went to sit near the engine room. There they stayed for a considerable time until some person approached the engine room. He, first appellant, then saw second appellant remove two pistols from the bag he was carrying as well as the balaclavas, which they then put on. According to first appellant he then realised, for the first time, what the purpose of their visit to the farm was. When the person, coming from the house, went into the engine room he was set upon by second and third appellants. After this person, who later proved to be the deceased, was trussed up they all ran to the house where they met Mrs Oosthuizen and where the two appellants robbed her after searching the house and gaining access to the safe. From there they ran back to the car and drove to Grootfontein.




[22]    

According to the first appellant he was unaware of what was going to happen when the three of them set out for the farm and it was only when second appellant removed the pistols and balaclavas from the bag he was carrying, that he realised what was going to happen. During all the time that the deceased was attacked and that the robbery took place he, first appellant, was merely an innocent bystander, who feared for his life if he were to attempt to flee from the scene.




[23]    

Back in Grootfontein, third appellant was dropped at the police barracks. The three of them also went into a certain room where the bag, which previously contained the pistols and balaclavas, was left inside a cupboard. Thereafter he and second appellant departed, first to the house of first appellant, where they both entered and stayed for a while, and thereafter, he took second appellant to his house and returned to his own room where he was living with his girlfriend, a Miss Blaadt.




[24]    

As a result of the statement of the first appellant, second and third appellants were arrested. They however, denied that they were with the first appellant on the evening and night of the 18th January and both of them later alleged to have alibis for the relevant time when the crimes were committed.




[25]    

At this stage it would be convenient to deal with a finding by the learned Judge a quo concerning, what is known in our criminal law, as the doctrine of common purpose. It was mainly the finding by the Learned Judge a quo that causality was a necessary ingredient of the doctrine which led to the conviction of the first appellant of attempted murder on the first count. In summing up the evidence in regard to the appellant the Court concluded that he had not been privy to the agreement by the second and third appellants to rob but that he at a later stage spontaneously joined in the attack and robbery. The Court found, inter alia, that in such an instance it would be unjust to apply the principles, regarding the doctrine of common purpose, as laid down by the Appeal Court of South Africa in the case of S v Safatsa and Others, 1988 (1) SA 868 (A). The Court was of the opinion that in circumstances as the present it was necessary to revive the principles, regarding the element of causality, set out previously in the case of S v Thomo and Others, 1969 (1) SA 385(A).




[26]    

In an exhaustive discussion of decisions of the South African Appeal Court, and dividing such cases into those delivered before and those delivered after the Thomo–case, Botha, JA, in the Safatsa-case, pointed out the uncertainty created by some decisions of that Court in regard to whether, in applying the doctrine of common purpose, it was necessary to prove causality between the actions of a perpetrator and the resultant effect, e.g. death of the victim. It must be pointed out that the Safatsa-case did not deal with the so-called ‘joining in’ cases where the principles of common purpose are so often applied. In the Safatsa-case the State could prove that each one of the accused had the requisite intention to kill the deceased and that they actively associated themselves with the conduct of the mob, which was directed at the killing of the deceased.




[27]    

Dealing specifically with the Thomo-case the learned Judge pointed out that Wessels, JA, who wrote the judgment in the said case, concurred in the judgment of the case of S v Madlala, 1969 (2) SA 637 (A), which judgment was delivered just prior to the Thomo judgment, and in which Holmes, JA, stated the following at 640F – H, namely:



It is sometimes difficult to decide, when two accused are tried jointly on a charge of murder, whether the crime was committed by one or the other or both of them, or by neither. Generally, and leaving aside the position of an accessory after the fact, an accused may be convicted of murder if the killing was unlawful and there is proof-




(a)     

that he individually killed the deceased, with the required dolus, eg by shooting him; or




(b)     

that he was a party to a common purpose to murder, and one or both of them did the deed; or




(c)     

that he was a party to a common purpose to commit some other crime, and he foresaw the possibility of one or both of them causing death to someone in the execution of the plan, yet he persisted, reckless of such fatal consequence and it occurred; see S v Malinga and Others, 1963 (1) SA 692 (A) at 694F-H and 695; or




(d)     

that the accused must fall within (a) or (b) or (c) – it does not matter which, for in each event he would be guilty of murder.”





[28]    
Referring to the above excerpt and the fact that the two judgments were given so close in time Botha, JA, said the following at 897:




In this formulation of the legal position relating to common purpose it is quite clear, in my opinion, that there is no room for requiring proof of causation on the part of the participant in the common purpose who did not ‘do the deed’ (ie the killing). This fortifies my view that it was not intended in Thomo’s case to lay down that a causal connection had to be established between the acts of every party to a common purpose and the death of the deceased before a conviction of murder could ensue in respect of each of the participants.”








[29]    

The Safatsa–case was further explained in the case of S v Mgedezi and Others, 1989 (1) SA 687 (A). It was there laid down that in cases where the State does not prove a prior agreement and where it was also not shown that the accused contributed causally to the wounding or death of the deceased, an accused can still be held liable on the basis of the decision in Safatsa if the following prerequisites are proved, namely:




(a)     

The accused must have been present at the scene where the violence was being committed;




(b)     

he must have been aware of the assault being perpetrated;




(c)     

he must have intended to make common cause with those who were actually perpetrating the assault;




(d)     

he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others;




(e)     

he must have had the requisite mens rea; so in respect of the killing of the deceased, he must have intended them to be killed, or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue. (p 705 to 706).




[30]    

Therefore also in regard to the so-called “joining in“ cases causality is not required provided that there is proof of the prerequisites set out in the Megedezi-case.




[31]    

Returning to the findings, in this regard, by the Court a quo, it is clear that it brought about a fundamental change in the law, as laid down and explained in the above cases, and the question is whether that was justified. The reasons why the learned Judge a quo found it necessary to revive the reasoning in the Thomo case, and thereby depart from the general position of the law, are threefold. Firstly that it would be unjust to hold an accused, who was not part and parcel of the original agreement to commit the crime, equally responsible with those who were part of the original agreement. (Record page 1336 to 1337). Secondly that for reasons of policy and in the interest of justice and in order to encourage accused persons, in the position of the first appellant, to come forward and assist the police in solving cases, such accused persons’ liability should be limited to their particular unlawful act which they belatedly executed after they had joined in on the spur of the moment. (Record p 1337). Thirdly that the situation has changed from the day that the principles, set out in the Safatsa–case, have been formulated. At the time there were multiple cases where hundreds of people were involved in and to that extent the doctrine of common purpose, as set out in the Safatse-case, has fulfilled its role. (Record page 1337 to 1338).




[32]    

I agree with Ms Miller, as well as counsel for the defence, that these are not compelling, nor even convincing, reasons why the law as set out in the Safatsa case should not be followed, also by Courts in Namibia. It seems to me that the reliance placed by the Court a quo on the Thomo-case, which was either decided on wrong principles or, if Botha, JA, is correct, could never have meant to require causality where the doctrine applies, is in my opinion not a good starting point to change the law. To require causality in such an instance will limit the applicability of the doctrine and deprive it of its usefulness in situations where it would otherwise be difficult to prove liability.




[33]    

There is further in my opinion no reason to accept that application of the doctrine, as found by the Court a quo, would encourage criminals to come forward and assist the police in their investigation of cases. It is also not correct to say that the Safatsa-case created new law in order to meet a particular situation where crimes committed by groups of people were rife, and in order to cope with such a situation, it was necessary to devise new principles which would be able to take care of the situation.




[34]    

On p. 895 Botha, JA, stated that his object was "to attempt to clarify the law as it is applied in practice…". The learned Judge further pointed out that he was not dealing with the so called ‘joining in’ type of cases. To that extent and on the facts found by the Court a quo, namely that the first appellant only joined in on the spur of the moment after the attack on the deceased had already started, it would have been more correct to apply the principles set out in the Mgedezi-case, supra.




[35]    

That the learned Judge in the Safatsa–case was merely clarifying and restating the law of common purpose in regard to the question of causation is clear from the Court’s analysis of the relevant case law. Thus it was stated that even before 1969 (that was when the Thomo judgment was delivered) the Court found clear instances where convictions of persons, based on common purpose, were upheld where no causal connection had been proven between the conduct of the accused and the death of the deceased. (p. 895).




[36]    

As was pointed out earlier, also in regard to the Thomo-case, the Court was of the opinion that it could never have been intended that in convictions on the basis of common purpose a causal connection was required between the conduct of the accused person and the death of the deceased.




[37]