The allegations against the appellants are that on
23 June 2006, at about 22:00 hours, they, acting in common purpose,
proceeded to Phakama Secondary School, Plumtree, with the intention to commit
the offence of housebreaking with intention to steal and theft.
They armed themselves with knives and also carried tools
for breaking in viz, screwdriver,
crow bar, lamp and a box of matches. On arrival at the school, they broke into
the Administration Block and while inside, lit a lamp and loaded stolen items
into a bag. The stolen items included a solar panel, solar chargers, stapler
and pens.
The appellants were spotted by the deceased, a teacher, who
was arriving at the school at that time. The deceased rushed to the school
quarters where he alerted Bakani Nduna Ndlovu who is also a teacher. The deceased armed himself with an axe and
went to investigate followed by Bakani Ndlovu.
On arrival, the deceased ordered the appellants to
surrender and come out. The first appellant, instead of surrendering,
immediately bolted out of the Administration Block while carrying the stolen property
loaded in a bag. The deceased gave chase and managed to catch up with the first
appellant and in the process, the first appellant dropped the bag containing
the loot and continued to flee. The deceased followed in hot pursuit and after
about 100 metres, he caught up with the first appellant again but the appellant
wiggled out of the deceased's grip by removing his own black leather jacket
leaving the deceased holding it. However, the deceased did not give up the
chase and after about another 150 metres he 'cornered' the now tired first
appellant and ordered him to lie down. The first appellant, according to his
own testimony, pretended to comply with the order, but suddenly drew out his
okapi knife from his back pocket, opened it and stabbed the deceased once on
the lower abdomen and the deceased fell down and died on the spot. The first appellant went back to retrieve the
stolen loot but, hearing footsteps of other people, gave up and escaped.
In the meantime, the second appellant had seized the opportunity
presented by the bolting out of the first appellant and sneaked away from the
scene in a different direction evading or outpacing Bakani Ndlovu in the
process.
A post-mortem examination of the deceased concluded that
the cause of death was;
(a) Haemorrhage shock;
(b) Intra-abdominal bleeding;
(c) Stab wounds, and
(d) Assault.
The stab-wounds are listed in the report under 'marks of
violence' as;
(a) Stab wound right arm (5 x 2cm); and
(b) Left abdomen (3 x 2 x 10cm).
Three main contentions were advanced on behalf of the
appellants, namely, that:
(a) The State did not disprove the defence of person
(self-defence) advanced by the first appellant.
(b)The State did not establish the basis of common purpose
to warrant the conviction of the second appellant for the murder of the
deceased by the first appellant.
(c) Extenuating circumstances existed in the matter
warranting the non-imposition of the death penalty.
We shall examine each one of them in turn ….,.
COMMON
PURPOSE
The position in our law pertaining to the doctrine of
common purpose was summarized by GARWE J…., in the case of The State v Charles
Sumani and Stephen Akudele HH75-00 thus:
“The position is now settled that where accomplices break
into premises with a weapon known to all and the weapon is used in the murder
of a victim all would have at least a constructive intent to kill - see Nyathi
v Two Ors SC52-95. In Chareka & Anor SC40-93 two accused, acting in concert,
had a firearm in their possession. The second accused was found guilty of
murder with constructive intent. In Ngulube & Anor v S SC112-93, the
Supreme Court held that the first appellant should have been found guilty of
murder with constructive intent on the basis that being aware that his
accomplice was armed with a lethal weapon he must have appreciated and foreseen
the possibility of his colleague resorting to the use of the weapon to kill in
furtherance of their common objective to effect the robbery.
In this case, it is clear Accused 1 must have, at the very least,
been aware that Accused 2 would resort to the use of the axe in order to
successfully effect the robbery.”…,.
Counsel for the second appellant sought to argue that the
second appellant's mens rea in casu was restricted to the planned house-breaking
with intent to steal and theft. He submitted that when they were surprised by
the deceased wielding an axe and standing at the door of the school building
and demanding that they should come out, the second appellant never produced a
knife or any weapon to attack or frighten the deceased. Instead, his decision
was to escape under cover of darkness. When the first appellant had bolted out
of the building, with the bag laden with stolen items, and the deceased chased
after him, so the submission went, the appellant did not join in the chase to
attack the deceased or rescue the first appellant. The second appellant simply
walked out of the building and out of the school and proceeded to his
homestead.
However, the above submission misses the point, which is the
age-old question whether the second appellant, by so doing, sufficiently
disassociated himself from the original common purpose.
Was it legally effective withdrawal for him merely to run
away? Or did he have to do more for the chain connecting him to the subsequent
actions of the first appellant to be broken; for instance by surrendering
himself as demanded by the deceased or otherwise try to avert the danger that
he had created by association?
In S v Ndebu & Anor 1985 (2) ZLR 45 (SC) McNALLY JA
quoted English and American case law to the effect that a last-minute
withdrawal, on its own, was insufficient to exculpate a secondary party from
the main charge. Such a party must do more for the defence of 'withdrawal' to
succeed. He or she must 'countermand' or 'repent' the original instruction or
understanding. The withdrawing party must literally 'step on the lit fuse' in
order to successfully dissociate from a conspiracy to blow up a building with
dynamite.
This vexed question pertaining to the sufficiency of a 'withdrawal'
from a common purpose was dramatized in William Shakespeare's play, King
Richard III, where two murderers are
sent by the king to murder his brother, Clarence. The second murderer seems to
have a change of heart at the last minute, vainly tries to prevent the killing
by warning Clarence to look behind him as the first murderer moved in to stab
him. The remorseful second murderer further distances himself from the crime by
refusing his share of the reward, but in the eyes of the playwright they both
remain murderers.
In S v Ndebu & Anor 1985 (2) ZLR 45 (SC), the
appellants were convicted of murder and sentenced to death. During the course
of housebreaking at a dwelling known to be occupied at the time, the appellants
were surprised by the householder. The second appellant, not in possession of a
firearm, immediately fled and had already run some distance away before he
heard the sound of gunshot fired by the second appellant which killed the
deceased. It was observed as follows regarding the liability of the unarmed
second appellant;
“I will content myself in this case by saying that on the
facts I am not at all satisfied that the second appellant dissociated himself
from the murder. He had gone along with a common intention to commit housebreaking
and theft, and, if necessary, armed robbery. He had taken part actively in the
break-in, and had himself then cut the telephone wires. He knew and appreciated
the risk that if someone in the house woke up the firearm might have to be used
to subdue the residents or to effect an escape. He was there participating when
precisely that situation arose. As it happened, he was so placed that he could
run away. But by that stage what he did was no longer material. The reason for
that is clear. The risk which he deliberately took was not related to what he
himself might do but what his armed companion might do if challenged or cut
off. He had linked his fate and his guilt with that of his armed companion. The
mind that needed changing was not his but his companion's. His constructive
intention to kill depended on a decision by his companion.”…,.
After examining case law in South Africa and Zimbabwe on
this subject, the following conclusion is drawn by the learned author, JONATHAN
BURCHELL in Principles of Criminal Law 4 ed…,:
“The ultimate decision whether a person's dissociation from
a common purpose can serve to exculpate him or her for crimes committed by the
group after dissociation is a value
judgment, but a number of factors
relevant to the inquiry have emerged from the case law. These factors need to
be weighed in the balance by the court in reaching an equitable decision on
whether dissociation is legally effective or not.”…,.
COMRIE AJA in Musingadi, 2005 (1) SACR 395 summarized some
of the factors relevant to a dissociation inquiry as follows:
“[M]uch will depend on the circumstances: On the manner and
degree of the accused's participation; on how far the commission of the crime
has proceeded; on the manner and timing of the disengagement; and, in some
instances, on what steps the accused took or could have taken to prevent the
commission or completion of the crime…,. The greater the accused's
participation, and the further the commission of the crime has progressed, then
much more would be required of an accused to constitute an effective
dissociation. He may even be required to take steps to prevent the commission
of the crime or its completion. It is in this sense a matter of degree and in a
borderline case calls for a sensible and just value judgment.”
GUBBAY CJ in Beahan 1992 (1) SACR 307 (S)…, opined that
where 'a person has merely conspired with others to commit a crime, but has not
commenced an overt act toward the successful completion of that crime, a
withdrawal is effective upon timely and unequivocal notification to the
co-conspirators of the decision to abandon the common unlawful purpose.'
The Criminal Law (Codification and Reform) Act [Chapter
9:23] now states the position of the withdrawing accomplice, in section 200, as
follows:
“200 Withdrawal from
crime by accomplice
An accomplice shall not be guilty of a crime committed by
an actual perpetrator if, before the crime has been committed, the accomplice
voluntarily desists from further incitement of, conspiracy with, or authorization
or assistance to the actual perpetrator and either -
(a) Renders wholly ineffective his or her previous
incitement, conspiracy, authorization or assistance; or
(b) Gives warning of the crime to a police officer or other
person with authority to prevent the commission of the crime, in sufficient
time to enable the police officer or other person to prevent its commission.”
In the present case, the manner and degree of participation
of the second appellant was not that of a subordinate, but that of a co-principal
offender. Both appellants were armed with knives for the clear purpose of
warding off any challenge to their enterprise of unlawful entry and theft. This
is highlighted in the second appellant's confirmed warned and cautioned
statement where he states:
“What I know is that I left home with Enock Ncube carrying
knives. Enock had his and I had my own and further we had tools.”
The knives in their possession were not essential for the
purpose of unlawfully breaking into the school administration block as they
only needed a screwdriver and a crowbar which they used for that purpose. Therefore, the court a quo did not err in
accepting that if the knives were surplus to what the appellants required to
complete their housebreaking endeavor then their possession was for the sole
purpose of quashing any resistance should such opposition arise - and it did
arise in the form of the deceased demanding their surrender and submission and
doggedly pursuing the first appellant.
The purported withdrawal by the second appellant occurs
when the crime is all but completed and is purely fortuitous. The bolting away
by his co-offender and the deceased's chasing after him gives the second
appellant the perfect opportunity to slip away. Given the degree to which the offence
had progressed, more was expected of the second appellant if he desired to
dissociate from the common purpose. He could have surrendered himself and/or
called upon his co-offender to do the same or assisted in the retrieval and
handing over of the stolen property. He could have warned the deceased that the
first appellant was armed; that he should not pursue him; that he himself was
surrendering and would be able to identify the fleeing party.
In short, as was said in S v Ndebu & Anor 1985 (2) ZLR
45 (SC), had he disarmed or dissuaded his companion or protected the challenger
in some way he might perhaps have purged his constructive intention.
Once more, the Criminal Code, in section 199, makes an
accomplice who fails to effectively withdraw guilty of foreseeable additional
crimes committed by the actual perpetrator.
Accordingly, the trial court correctly found that the first
appellant was guilty of murder with actual intent.
However, as the line of authorities quoted above show, the
second appellant who was not at the actual scene of the murder can be found
guilty only of murder with constructive intent. Counsel for the respondent
correctly conceded as much in his heads of argument….,.
DISPOSITION
The appeal against conviction and sentence in relation to
the first appellant is dismissed.
The appeal against conviction by the second
appellant succeeds to the extent of the court a quo's verdict of guilty of
murder with actual intent being set aside and substituted with his being found
guilty of murder with constructive intent.
