Court name
High Court
Case name
S v Haggai and Others
Media neutral citation
[1994] NAHC 8

















THE
STATE -vs- JEFTA HAGGAI & 8 OTHERS.


1994/06/02























CRIMINAL
PROCEDURE:









Common
purpose - Identity -what evidence necessary


Strydom,
J.P.










CASE
NO. 117/93











IN
THE HIGH COURT OF NAMIBIA















In
the matter between








THE
STATE



versus



JEFTA
HAGGAI LAZARUS KORNELIUS MARTIN UUPINDI ERASTUS SHEGAVALI PAULUS EVAS
NIKOLAUS NGHIPANDE TOBIAS KORNELIUS BENJAMIN IYAMBO ILINILIUS HOSEA








CORAM:
STRYDOM, J.P.









Heard
on:



Delivered
on:
1994/06/02








JUDGMENT



STRYDOM,
J.P.
: During
the beginning of
1992
some


dissatisfaction
arose amongst the workers of the firm MKT Enterprises (Pty) Ltd.
concerning bonuses payable to th< said workers. This eventually
led to a strike by all th< workers of the company.



After
negotiations with representatives of the Workers Union, it was agreed
to reinstate all workers, at a salary which was 30% less than the
salary earned by such workers during the previous year namely 1991.
The result of this agreement was that the workers also forfeited the
10% raise which they had received during 1992 so that the actual
salary decrease was 40% less than what was earned before the strike.
According to the evidence the atmosphere at MKU Enterprises was tense
when on the 24th September 1992 a meeting took place on the premises
of the company where some workers, mainly those in the wood section,
were addressed by a Mr Haikali. Soon after the resumption of work a
group of 12 to 15 men was seen by witnesses von Shirp and Schaeffer,
walking in the direction of the administration buildings of the
Company. Some of these men carried wooden slats and the two witnesses
gained the impression that the group was angry. The group followed
behind the witness
Ku'hn
who was seen to have come out of one of the buildings closer to the
offices and was also proceeding in the same direction. This group of
men also passed the witness Erasmus at Point D shown on photograph
no. 1 of EXHIBIT A.






Erasmus,
who was at the time talking to
Mr
Dickson
(senior) , saw the group moving into the entrance to the offices
namely Point
A
on
photograph no. 1.
At
this
stage inside the office were the deceased,
Mr
Zapporoli,
Mrs
Erasmus,
Mr
Kiihn
and
Mr Dickson (junior).






Kiihn,
according to his evidence, went to the office to enquire about a fax
which he was expecting and also to get

some information from the deceased. Shortly after he entered a group
of men came in. One of them, accused no. 1, said, "What have you
done now?", or words to that effect. This was addressed to the
deceased. The deceased then enquired as to what had been done by him.
He was not given an answer. The atmosphere became tense and the group
of people aggressive. The deceased then ordered Mrs Erasmus to phone
the police. At this stage accused no. 1, who was standing next to the
deceased as shown on photograph 2.G, said "Stop them". And
when the deceased tried to get hold of his brief case, which was
standing behind him on a shelf and which contained a pistol, he was,
according to Dixon and Kuhn, grabbed from behind by accused no. 1 who
pinned him to his chair and so prevented him from getting hold of his
brief case. Further, according to the evidence, the people
surrounding the desk of the deceased started to hit him with the
wooden slats or poles. In this process Kiihn was also attacked. He,
however, by holding his arms in front and above his head, succeeded
to block most or all of the blows which he said were aimed at his
head and he further succeeded to escape from the office.






Mrs
Erasmus, who tried to reach the telephone, was hit over the back
presumably also with a wooden slat or pole. At a stage she slipped
and fell, and then got hold of her handbag from which she removed a
pistol and she then fired a shot into the air. As a result thereof,
the people left the office except for accused no. 1, who now had a
wooden slat in his hand and who took a step or two in her direction.
She then fired a second shot whereupon accused no. 1 also left
the office. Erasmus, who was still outside, saw two groups of people
coming out of the office block at different doors marked F and G on
photograph no. 1. Shortly before, Kiihn also came out of the office
block and told the witness to telephone the police. He, that is
Erasmus, went into the office, where he armed himself with a pistol
of the deceased and, after having satisfied himself that his wife was
not in danger, left the office and went to point C shown on
photograph no. 1.









In
the meantime a group of people, allegedly led by accused no. 1,
entered the office of witness Burger at point B on photograph no. 1.









According
to Burger accused no. 1 said they had finished talking. He, Burger,
also enquired what was meant by such words but he, likewise, did not
receive an answer. He said that accused no. 1 had a chisel in his
hand and kept shoving him in the direction of the group of people who
was standing in his office, some of whom were armed with wooden
sticks. Without anything else being said, Burger was then attacked by
the group. He was hit on his head and face, and as he was bending
forward, he was also hit on his back. Then all of a sudden the group
stopped the attack and left the office.









According
to Erasmus some of the people standing outside saw him coming with a
pistol in his hand and shouted a warning to the group attacking
Burger.



After
the arrest of some 17 workers an identification parade was held at
the Windhoek prison where 9 people were identified by various
witnesses. By some mistake accused no. 9, who was not so identified,
was charged instead of another person who was in actual fact
identified. During the proceedings accused no. 9 was found not guilty
and discharged.
I
will
further-on only refer to the remaining 8 accused.









As
a result of the attack on him, Mr Zapporoli died on 28 September
1992. Flowing from the occurrences on the 24th September, the accused
are now charged with the murder of the deceased and furthermore with
the attempted murder of Mr Burger, Mr Kiihn and Mrs Erasmus.









The
State is represented by Mr Miller, whilst Mr Metcalfe represented all
the accused.









All
the accused pleaded not guilty to all the charges.









After
the State's case was closed only accused no. 1 and no. 5 gave
evidence under oath. Accused's no. 2, 3, 4, 6, 7 and 8 elected to
remain silent. Accused no. 1. testified that on the particular day he
was requested by the deceased to come and see him. He forgot about it
but during the afternoon he remembered and then proceeded towards the
office on his own. Inside the office he stood in front of the
deceased's desk. The deceased was busy on the computer and said that
he just had to wait a moment when he, the deceased, would give his
attention. The next moment people







came
into the office, and he, the accused, was hit twice over his back.
He managed to escape from the office and went to inform his foreman,
Mr Burger, that he was assaulted and that there were people in the
office who assaulted other people. While he was with Burger, he
heard people shouting that Erasmus was coming with a gun. He went to
investigate. When he returned he found Burger outside his office.
Burger asked him to explain what was going on but he informed Burger
that he was finished talking.









Accused
no. 1 therefore denied that he was part of the group of people who
assaulted the deceased and others on the afternoon of the 24th and
claimed himself to have been assaulted by these people.








Accused
no. 5 denied that he was part of the group of people who assaulted
the deceased and others. He stated that he never attended a meeting
during the afternoon and that he continued to work. Whether the
accused are guilty of some or other crime therefore depends on
identification. In this regard, and as stated before, an
identification parade was held at the Windhoek prison where all
eight the accused were identified by various witnesses. What
complicates matters is that some of them were identified during
various stages during the happenings of this fateful afternoon. So,
for instance, accused no. 3 was only identified by Burger and the
question is was he part of the group of persons who attacked the
deceased, Kiihn and Mrs Erasmus? Some of the accused, namely 4, 6
and 7, were only identified by Erasmus who recognized them when the
group of people moved passed

him

on
their
way
to
the
office.









According
to
the
evidence
there
were
some
270
to
300
workers
in

the
employ
of
MRU
Enterprises
at
the
time
of
the
incident.

Obviously
some
of
them
would
be
better
known
to
particular

witnesses
than
others,
depending
on
the
nature
of
previous

contact
with
them
by
a
particular
witness.
We
know
from

the
evidence
that
there
were
some
eight
or
nine
different

sections
of
work
at
the
company
and
that
workers
were

sometimes
transferred
from
one
section
to
another.
The
danger

inherent
in
a
situation
such
as
this
is
of
course
that

a
witness
may
be
able
to
bona
fide
recognize
a
particular

accused,
perhaps
not
because
he
was
part
of
the
particular

group
who
was
marching
on
the
office
on
that
afternoon

but
because
his
face
looked
familiar
as
a
result
of

previous
chance
encounters.
This,
in
my
opinion,
is
inevitable

where
a
large
group
of
people
work
together.
The
Court

must
be
alert
to
this
danger
and
must
guard
against
it.









On
the
other
hand
it
is
also
understandable
that
where
twelve

to
fifteen
or
more
people
move
together
in
a
group,
that

a
witness
may
only
recognize
some
whereas
there
may
be,
in

the
same
group,
others
equally
known
to
the
witness
but
not

seen
and
recognized
by
him
or
her
because
his
attention
may

not
be
focused
on
each
and
every
individual
in
the
group.









On
this
particular
afternoon,
those
who
saw
the
group
walking

to
the
offices
did
not
really
expect
or
foresee
anything untoward happening. This is demonstrated by the fact that
none of them did anything until after the assaults took place.









With
all this in mind I will now proceed to analyze the evidence in
regard to each accused as far as identity is concerned.









Accused
no. 1.



Accused
no. 1 was identified by each and every witness who was on the scene
on the afternoon of the 24th. Shaeffer and Von Shirp who were
standing at point X on photograph no. 1 saw the accused in the front
part of the group. Shaeffer had known the accused since 1989. He had
worked in the same section as Shaeffer. Although the accused was
later on transferred to Burger's section Shaeffer remembered him
because he was a very good worker, one who understood his work very
well and very fast. This witness could still remember that on the
particular afternoon accused was wearing a white T-shirt.








Von
Shirp also knew him, that is the accused no. 1, well, because he saw
him nearly every day and sometimes even more than once a day.









The
witness Erasmus also knew the accused by name and stated that he
recognized no. 1 when the group went passed him. To this
evidence must be added the evidence of Mrs Erasmus, Kiihn,
Dickson (junior) and Burger, who all knew accused no. 1 well and
who recognized him as the leader of a group of



persons
who entered the administrative offices and who was present when the
deceased, Kiihn and Mrs Erasmus were attacked. Again he led a group
of people into the offices of Burger and was present when the attack
was launched on the witness.









As
stated the accused gave evidence under oath. He was by no means an
impressive witness. He changed his evidence in regard to statements
made by his counsel in cross-examination to State witnesses. His
evidence that he himself was the victim of an attack is so
improbable that it can be rejected out of hand. He had great
difficulty in explaining why he went to Burger instead of reporting
the attacks to the first person he met. His explanation that Burger
came out of his office after somebody had shouted that Erasmus was
approaching with a gun, and that when he saw Burger he had no
injuries, is clearly out of context with what had happened on this
afternoon.









Against
this evidence, the evidence presented by the State, overwhelmingly
placed the accused no.
1
as
the leader of the group of people from the outset until after the
assault on Burger. Notwithstanding his denials it seems that acts of
violence were committed in both the office of the deceased and in
the office of Burger, where accused went after the attack on the
deceased, Kiihn and Erasmus. In the light of all the evidence the
concession by his counsel that the accused was correctly identified
was, in my opinion, correctly made.



Accused
no. 2.



Accused
no. 2 was identified by Schaeffer as part of the group which walked
past him and von Shirp on their way to the administrative office.
The witness knew the accused from 1989 when he worked in Shaeffer's
section and he knew that he was one of the deaf workers. Nobody
identified the accused in the office where the first attack was
launched on the deceased, Kiihn and Mrs Erasmus. However, Burger
again saw him amongst the group of persons who attacked him. Accused
no. 2 was one of the workers in his section.









In
my opinion both Shaeffer and Burger demonstrated that they knew
accused no. 2. well and there is therefore no danger of a wrong
identification of the accused. This, so I understood the argument of
Mr Metcalfe, was also accepted by him. Although there is no positive
identification of the accused in the office of the deceased it can,
in my opinion, safely be accepted that he was also there. Shaeffer
testified that he watched this group until they disappeared around
the corner of building no. 2 on their way to the office. According
to Shaeffer nobody left the group, and neither did anybody join
them. Erasmus, who was passed by the group at Point D, saw the whole
group entering the office complex. It is further highly unlikely
that accused no. 2, who was seen by Schaeffer in the group, would
have left the group and then popped up again when Burger was
attacked.









In
the circumstances I find that accused no. 2 was correctly identified
and that he also formed part of this group when deceased, Kiihn and
Mrs Erasmus were attacked.
Accused
no. 3.


Accused
no. 3 was only identified by Burger as forming part of the group of
people who came into his office. Accused no. 3 was not identified by
any other witness at a stage prior, or at the attack on deceased,
Kiihn and Mrs Erasmus.












Burger
conceded that he did not know the accused for a long time. However,
he testified that accused was working in his section and because the
accused was working with one of his key men, he was almost daily in
contact with the accused. In the circumstances I am satisfied that
Burger knew the accused well and that there is no danger of a wrong
identification.








Mr
Miller argued that because accused no. 3 was identified by Burger,
and the other circumstances present to which Mr Miller has referred
the Court, it must be accepted that he was also present when the
deceased and others were attacked in the administration office. I do
not agree. Although there is evidence that nobody joined or left the
group as they were on their way to the administration office, there
is no such evidence in regard to the movement of the group once they
had left this office and were on their way to Burger. The
possibility that accused 3 could have joined the group after the
first attack cannot be excluded. It is correct that the accused did
not testify but in the absence of any direct evidence linking him
to the group at that

stage

and
the
evidence
being
at
best
only
circumstantial,
no
inference

can
be
drawn
from
the
accused's
silence
in
regard
to

this
incident.









As
far
as
the
circumstantial
evidence
is
concerned,
I
am
not
satisfied

that
the
only
reasonable
inference
that
can
be
drawn

from
the
fact
that
the
accused
was
present
in
the
office

of
Burger,
and
the
other
circumstances
referred
to
by
Mr

Miller,
is
that
the
accused
must
also
have
been
present
when

the
deceased
and
others
were
attacked.
The
possibility
that

he
was
not
present
is
equally
reasonable,
especially
in
the

light
of
the
fact
that
he
was
not
identified
by
six
other

witnesses
who
saw
the
group
approaching
and
who
saw
them,

or
some
of
them,
in
action.
My
finding
is
therefore
that

the
State
only
proved
that
accused
no.
3
was
present
during

the
attack
on
Burger.






Accused
4,
6
and
7.



I
deal
with
these
three
accused
together
because
their
circumstances

are
more
or
less
the
same.
They
having
only
been

identified
by
the
witness
Erasmus.
All
three
the
accused

were
identified
by
Erasmus
as
workers
of
MKU
who
worked

in
the
wood
section.
He
also
indicated
that
accused
no.

6
was
one
of
the
deaf
people.
He
did
not
know
any
of
the

three
by
their
names
and
did
not
work
together
with
them.

Although
the
evidence
is
that
various
of
the
persons
in

the
group
carried
wooden
slats
Erasmus
only
saw
one
person

carrying
a
piece
of
wood.
In
fact,
he
was
positive
that

none
of
the
others,
when
he
saw
them,
was
carrying
anything.

In
this
regard
Mr
Erasmus
is
clearly
wrong.
See
the evidence of Schaeffer and the witnesses Dickson, Kiihn, Mrs
Erasmus and Burger.









His
explanation of how he recognized the accused because their faces
were subconsciously registered, is also not very reassuring bearing
in mind further that all the workers basically looked the same to
the witness. The descriptions given by the accused of the individual
accused also did not go far. Number 4 had a beard, but the witness
also conceded that there were many other workers there with beards.
No. 6 stood out as a deaf and dumb person and he also brought in
stapler guns and other tools to be repaired. Mr Erasmus however did
not know that accused no. 2 and 7 were also deaf and dumb. It is so
that the witness did not identify accused no. 2. However, in regard
to accused no. 7, whom he did identify, one would have expected him
to know no. 7 was also one of the deaf. No. 7 was solely identified
on the form of his head. Also the description of accused no. 6 as
walking around with a hard-baked expression on his face does not
take the matter much further, because an expression may change. The
most positive identification by this witness was made in regard to
accused no. 6. In this regard however, contrast the evidence of
Schaeffer, who stated that he knew accused no. 6, and that if he was
in the group he would, in all probability remember him. It may of
course be that Schaeffer, because he saw a group of people, did not
see no. 6 or did not recognize him. However, if there is any doubt,
that doubt must go to the accused.









I
have no doubt that these identifications were made
bona
fide

and honestly by Erasmus. But, as experience has shown, honesty is no
guarantee against a wrong identification anc courts must ever guard
against such an eventuality. It is clear that of those identified by
Erasmus, these three all were the least known to him. The danger of
calling up their faces from the subconscious as stated by this
witness, does not exclude the possibility that they were remembered
from other previous encounters. In certain respects Erasmus's power
of observation is suspect. See in this regard for instance his
evidence concerning the objects carried by the group. His further
observation that the group was laughing and talking normally when
they passed him, stands in stark contrast to the evidence of von
Shirp and Schaeffer and those present in the administration office
and what then actually happened there.








In
the light of these problems pointed out by me it would, in my
opinion, be risky to accept the witness's evidence of identification
of accused no. 4,
6
and
7
especially
where such evidence stands alone and where these accused were not
identified by any other witness. The fact that the three accused did
not testify can, in my opinion, not convert unsatisfactory
identification evidence into proof beyond reasonable doubt. There is
no onus on the accused and the State must prove their guilt beyond
reasonable doubt. I find therefore that the State did not prove
beyond reasonable doubt that accused 4,
6
and
7
were
present in the group who attacked the deceased and others in the
administration office or who attacked Burger.



Accused
no.
5.



Accused
no.
5
was
identified
by
Kiihn
in
the
administration
office

as
the
specific
person
who
attacked
him.
Accused
no.
5

was
again
identified
by
Burger
as
one
of
the
group
of
persons

who
came
into
his
office
prior
to
the
attack
upon
him.

Kiihn
testified
that
he
had
known
accused
no.
5
for
nearly

three
years
and
although
he
was
at
that
stage
only
seeing

him
once
or
twice
a
week,
he
was
a
hundred
percent
sure

that
accused
no.
5
was
the
person
who
hit
him.
Burger
testified

that
accused
no.
5
worked
in
his
section.









Mr
Metcalfe,
correctly
in
my
view,
conceded
that
the
accused
was

a
poor
witness
and
that
the
Court
should
reject
his
evidence.

In
my
opinion,
there
is
no
reason
to
doubt
the
identifications

of
Kiihn
and
Burger
and
I
therefore
find
that
accused

no.
5
was
present
in
both
the
administration
office
and

in
Burger's
office
when
the
attacks
took
place.









Accused
no.
8.



Accused
no.
8
was
identified
by
the
witness
von
Shirp
and
by
Erasmus.
Von
Shirp
saw
accused
no.
8
when
the
group
of
people

went
past
where
he
and
Schaeffer
were
standing.
Accused

worked
on
one
of
the
machines
under
the
control
of
the

witness
and
he
saw
him
daily.
Erasmus
also
knew
the
accused

as
he
also
used
to
work
with
him
in
one
section
in
the

plate
shop.
In
my
opinion
both
witnesses
demonstrated
that

they
had
known
the
accused
well.
This
evidence
of
Erasmus

stands
in
contrast
with
his
evidence
in
regard
to
accused

4,
6
and
7.
Both
witnesses
saw
accused
no.
8
in
the
group

at
different
points
and
on
the
evidence
I
am
satisfied
that

accused
no.
8
was
properly
identified
and
that
he
was
at

least
present
in
the
administration
office
during
the
attack

on
the
deceased,
Kiihn
and
Mrs
Erasmus.









Burger
did
not
identify
accused
no.
8.
On
the
evidence
of
Erasmus

it
must
be
found
that
when
the
group
of
persons
left
the

administration
office,
they
came
out
in
two
different
groups.

The
one
group
consisted
of
about
three
persons
while

the
rest
were
together.
Whether
the
two
groups
again
merged

into
one
before
the
attack
on
Burger
is
uncertain.
Whether

everybody
who
was
in
the
administration
office
went
along

to
Burger's
office
is
also
uncertain.
The
fact
that
the

group
split
up
at
least
opened
the
possibility
that
the
small

group
of
three
or
some
of
them
did
not
again
join
the
attack

on
Burger.
It
therefore
does
not
follow
that
those
in

the
administration
office
all
went
to
Burger's
office.
As

Burger
did
not
identify
accused
no.
8
the
possibility
exists

that
he
was
not
present
when
the
attack
on
Burger
was
perpetrated.









I
therefore
find
that
the
State
proved
that
accused
no.
8
was
present
during
the
attack
on
the
deceased,
Kiihn
and
Mrs
Erasmus,

but
that
it
was
not
proved
that
he
was
also
so
present

when
Burger
was
attacked.








The
Court
must
now
decide
the
liability
if
any
of
those
accused

found
to
have
been
present
during
the
attacks
vis-a­vis
the
charges
they
are
facing
or
possible
competent
verdicts

in
regard
thereto.
With
a
few
exceptions
the
State
could

not
prove
what
was
the
share,
if
any,
of
each
accused
in the various assaults committed. Mr Miller, on behalf of the
State, and with reference to all the evidence, argued that the
accused at the very least had a common purpose to commit acts of
violence and that they foresaw it as a reasonable possibility that,
in the execution of their plan, death could ensue. This being the
case, all the accused should be found guilty as charged except in
respect of count
4,
that
is the case of Mrs Erasmus, where the State did not prove more than
an assault.









Mr
Metcalfe, for the accused, submitted that in order to come to the
conclusion that a common purpose existed it was incumbent upon the
State to prove, in regard to each accused, some act committed by
such an accused whereby his willingness to associate himself with
the commission of the crimes is proved. On the strength of various
cases quoted by counsel he submitted that the mere passive presence
of an accused on the scene of the crime does not give rise to any
criminal liability. As there is no evidence of any acts of
association committed by accused 2, 3,
4,
6,
7 and 8, they should be discharged on all counts. In regard to
accused no. 1 , Mr Metcalfe submitted that he can at most be
convicted of culpable homicide. As far as accused no. 5 is
concerned, he should be found guilty of assault with the intent to
do grievous bodily harm in respect of counts 2 and 3 only.









These
submissions by counsel in regard to the legal doctrine of common
purpose, when seen in proper perspective, and in regard to the
commission of the crime of murder, cannot be

faulted.

In
S
v
Savatsa
and
Others
1988(1)
SA
868
A,
the
following

question
was
asked
and
unanimously
reaffirmed
by
the

Appeal
Court
of
South
Africa,
namely:











"In
cases
of
the
kind
commonly
referred
to
in
our
practice

as
cases
of
common
purpose
in
relation
to
murder

is
it
competent
for
a
participant
in
the
common

purpose
to
be
found
guilty
of
murder
in
the
absence

of
proof
that
his
conduct
individually
caused

or
contributed
causally
to
the
death
of
the
deceased." See:

p.
894.






In
cases
where
the
State
does
not
prove
a
prior
agreement
to
a

common
purpose
or
where
such
prior
agreement
cannot
be
inferred

from
the
facts
and
circumstances
proved,
the
State
will

still
be
able
to
rely
on
common
purpose
by
proving
that
the

accused
had
the
necessary
mens
rea
and
proving
that
the
accused

associated
himself
in
some
way
or
other
with
the
commission

of
crime.
To
facilitate
proof
of
such
association

Botha,
J.A.
in
S
v
Nqedezi
and
Others
1989(1)
SA
687

A
at
705i
to
706c
laid
down
certain
guidelines.
These
guidelines

are
of
particular
significance
in
the
so-called
"joining-in"

cases.
Where
there
is
however
a
prior
agreement

to
a
common
purpose
and
the
purpose
is
achieved
a
party

to
such
agreement
is
liable
whether
he
has
performed
some

act
of
association
with
the
conduct
of
the
others
or
not.









In
the
present
case
there
was
a
background
of
labour
unrest.
On

the
afternoon
of
the
24th
September
a
meeting
was
held
with

specifically
the
workers
in
the
wood
section.
On
the
evidence of Burger,
I
think
it can safely be accepted that most of the accused, if not all,
attended this meeting. What transpired there is not known. However,
shortly thereafter a group of person led by accused no. 1 was seen,
armed with wooden poles of slats. These poles were not cut off and
discarded pieces of wood which one would pick up in a wood factory.
At least some of them were prepared and trimmed and the grips on
square pieces were rounded off to facilitate better and easier
handling. According to the description of these wooden slats at
least some of them were formidable weapons. The evidence is that the
group was angry and when they entered the administration office they
became aggressive. Each of the accused identified, with the
exception of accused no. 1, who had at some stage a chisel, was
armed with a wooden slat. Taking into consideration the background
and atmosphere at that stage, the fact that the accused armed
themselves with these weapons prior to going to the administration
office, is in itself ominous. However, what then happened there and
also in Burger's office, is also relevant.








Accused
no. 1 was no doubt the leader and spokesman of the group. It was he
who said to the deceased, with the others in close attendance, "What
have you done now?". This was countered by the deceased asking
what the accused was referring to. This was asked more than once,
but no answer was forthcoming from the accused. This is significant,
and shows in my opinion, that the weapons were not taken along
merely to intimidate or to threaten the deceased into addressing the
grievances of the accused because if that was

the purpose of the accused they would have informed the deceased
what he had done wrong. Again the same pattern was followed in
regard to the attack on Burger. Burger was informed by accused no. 1
that they had finished talking. This by itself sounded threatening.
Again the accused were requested to explain what was meant. Again no
explanation was forthcoming and, after Burger was shoved in the
direction of the group the beating started spontaneously. The group
was certainly not interested in solving their problems in any other
way but by the use of force. In regard to Burger, an additional
factor can be added and that is that those who were present at the
attack on the deceased now at least knew what the effect of such an
attack was and the seriousness thereof. In any event it seems to me
highly unlikely that those accused who were part of this
preconceived plan, and who were armed, would stand around idle
during the attack in the offices. If that were the case I would have
expected accused to come and tell the Court or not to lie about what
had happened. In the case of
S
v Mdlala

1969(2) SA 637 A the following was stated by Holmes, J.A. in
regard to common purpose at 640 F - H.











"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. 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,
that is by shooting him; or




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



  2. 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 Malinqa and Others

1963(1)
SA
692
A
at
694
F
- 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."






The
correctness of this decision was again confirmed in the
Sawatsa
case supra

p.
896
H
-
898
A.
See further:
S
v Talana

1986(3)
SA
196
A
at
206
E
-
207
A;
and



S
v Mbatha and Others

1987(2)
SA
272
A
at
282
B
to
284
C.






Applying
the principles as set out in the above cases, I agree with Mr Miller
that the fact that the accused armed themselves before the events
that took place and, taking further into consideration the facts set
out by me herein before, clearly indicate that violence was indeed
planned beforehand. I also agree with counsel that the accused were
under no illusion as to the fact that people were going to be beaten
that afternoon and beaten severely. In regard to the deceased, no.'s
2,
5
and
8
were
armed with wooden slats, each one knowing that he had no control
over the other as to how these slats were going to be used. To this
must be added the fact that these slats were used in a murderous way
on the deceased and I am satisfied that accused 1, 2, 5 and 8 did
foresee it as a reasonable possibility that someone could be killed
in the execution of their plan, but, notwithstanding this
realisation, they were reckless as to the outcome of this attack
and, that if they themselves did not partake therein, it was proven
that they fully associated themselves therewith.









The
attack itself was mercilessly executed. According to the medical
evidence of Dr Liebenberg, most of the force was aimed at the head
of the deceased. The injuries sustained by the deceased to his head
were extensive. The scull was fractured in two places which required
the application of considerable force. The determination with which
the attack was carried out, is illustrated by the fact that the
beating continued, even at the stage when the deceased was already
lying helpless on the floor, and that the attack upon the deceased
only stopped when Mrs Erasmus fired a shot with a pistol into the
air.









As
regards count 2 I am satisfied that the attack on Burger was meant
to have the same consequence as the attack on the deceased and that
it was only the timeous arrival of Mr Erasmus with a pistol which
saved Burger. Also in this case, the initial force was aimed at his
head and at least four blows landed on his head and face. According
to Dr Hanekom a considerable amount of force was necessary to cause
the injuries he sustained. Burger was able to bend down, and, as
I understood his evidence, was able to protect his head by holding
his arms over his head and by protecting himself by crouching under
the desk. He, Burger, was also hit on his arm and there were four
linear abrasions on his back. According to Dr Hanekom, the amount of
force used in regard to Burger was greater than was the case with
Kiihn. Also here, the attack was only stopped when Erasmus appeared
on the scene.









In
the circumstances, I am satisfied that the State proved count 2 as
regards accused 1, 2 and 5.









The
position of accused no. 3 is somewhat different. I have found that
it was not proved by the State that he was present during the attack
on the deceased, Kiihn, and Mr Erasmus, and that the possibility
existed that he only joined the group when they went to Burger.
However, it seems that he came prepared, and when he was seen by
Burger, he was also armed with a wooden slat. He was observed in
close proximity to Burger. If he did not know of the attack
beforehand, bearing in mind that he came prepared with a wooden
slat, then, by joining the group so armed, and also having observed
others so armed and being present during the attack, he, in my
opinion, clearly demonstrated his association therewith. The
intensity of the attack was such that the inference is inescapable
that he, together with accused 1, 2, and 5 foresaw death as a
reasonable possibility, but was reckless in regard to such
consequence.









In
coming to the conclusions above, the fact that
the

accused elected to remain silent and/or lie to the Court
notwithstanding the direct implication by Burger, is a further
factor which I have taken into consideration in coming to such
conclusion.









This
brings me to count
3,
namely
the attack on Kiihn. On all the evidence I am not satisfied that
this attack was part of the preconceived plan. The evidence is clear
that the main object of the anger and aggression of the group, which
came into the administration office, was the deceased. Without
anything being said, they all went and stood around or near his desk
when they filed into the office. When Kiihn tried to intervene at
the stage when accused no.
1
was
still talking, and tried to calm everybody, he was told by accused
no.
1
not
to interfere and to stay out of it. Then, when accused no.
1
said
"Stop them.", the
modus
operandi

seems to have been that the three people in the office, except the
deceased, were immediately guarded by someone. The evidence is that
somebody went to Dixon and stood in front of him. Dixon did not do
anything and was also not assaulted.








Somebody
went to Mrs Erasmus, and when she was still trying to reach the
phone, she received a blow on her back and was turned around.
Nothing further happened to her.






However,
Kiihn, who also did nothing, was attacked by accused no.
5.
Kiihn is not sure whether he was only attacked by accused no.
5
or
whether other persons also hit him. On the scenario sketched above,
it seems to me unlikely that anybody else joined in this attack.
Everything points, in

my opinion, to the fact that accused no. 5 decided on his own to
attack Kiihn, and that he alone is liable for this attack. Although
considerable force was used, Kiihn was able to guard his head and to
take the force of the attack on his arms. Dr Hanekom was of the
opinion that the force applied in respect of Kiihn, was less than
that applied to Burger. Kiihn also stated on questions by Mr
Metcalfe, that the blows landed in quick succession on his arms.
This, so it seems to me, shows that the blows which were executed
were short sharp blows which were not hit full force. It was indeed
fortunate for Kiihn that he was able to escape from the office. The
fact that he was not restrained from escaping further shows that it
was probably only accused no. 5 who was interested in him.








I
have some doubt in my mind whether accused no. 5 attempted to kill
Kiihn. However, Kiihn suffered injuries, and the left ulna bone in
his arm was cracked. I am satisfied that the State at least proved
an assault with intent to cause grievous bodily harm against accused
no. 5.


Also,
as far as count 4 is concerned, that is the attack on Mrs Erasmus, I
have some doubt whether it was planned by the accused to attack her.
It may be that it was foreseen that in the event of any of the
parties resisting that they would be subdued by force. However, Mrs
Erasmus is a small, slenderly built woman, who at least on
appearance, and I say this guardedly, should be easily subdued.
I
think
nothing was further from the minds of the accused than that she
would in actual fact be the person to put an end, an effective stop,
to the assault on the deceased by firing the shot into the air. By
firing the shot, she drew attention to herself and so could easily
provoke another assault upon her. That however, did not deter her
from acting.
she
unfortunately
was not able to identify her attacker and in the circumstances the
accused must be acquitted on the fourth charge.








Lastly
I want to thank the photographer and investigating officer on the
photographs and plan which were compiled by them. They thereby
enabled the Court to have a very visual impression of the relevant
scenes where the crimes were committed.



The
findings of the Court are therefore as follows: Accused no. 1:



Count
1 - guilty as charged. Count 2 - guilty as charged. Counts 3 and 4
not guilty and discharged.







Accused
no. 2:



Count
1 - guilty as charged. Count 2 - guilty as charged. Counts 3 and 4 -
not guilty and discharged.







Accused
no. 3:



Count
1 - not guilty and discharged.



Count
2 - guilty as charged.



Counts
3 and 4 - not guilty and discharged.







Accused
no. 4:



Counts
1, 2, 3 and 4 - not guilty and discharged. Accused no. 5:



Count
1 - guilty as charged.





Count
2 - guilty as charged.


Count
3 - guilty of assault with the intent to



cause
grievous bodily harm. Count 4 - not guilty and discharged.





Accused
no. 6:


Counts
1, 2, 3, and 4 - not guilty and discharged. Accused no. 7:


Counts
1, 2, 3, and 4 - not guilty and discharged. Accused no. 8:


Count
1 - guilty as charged.


Counts
2, 3, and 4 - not guilty and discharged.





FOR
THE STATE






FOR
THE ACCUSED Instructed by



MR
MILLER







MR
METCALFE Legal Aid