IN THE HIGH COURT OF SOUTH AFRICA BHISHO Case No. CA&R/2008 In the matter between: VINTA WORKMAN GQIRANA APPELLANT AND THE STATE RESPONDENT APPEAL JUDGMENT _____________________________________________________________ GREENLAND AJ: [1] This is an appeal in respect of convictions and sentences handed down by the High Court, Bisho. [2] Conviction The appellant, and four (4) others, were convicted of ± Count 1) Murder, by shooting, of adult male Alfred Nzimeni Makasi, on 1st April 2002 at Ilitha Township, Zwelitsha. Count 2) Attempted murder, by shooting and wounding, of one Nolulamile Nonkosi Makasi, on the same date and at the same place. Count 3) Robbery with aggravating circumstances of adult male Alfred Nzimeni Makasi of the sum of R38 000,00 at the same time and place. Count 4) Robbery with aggravating circumstances of adult male Alfred Nzimeni Makasi of a motor vehicle at the same time and place. Of the five accused only the appellant, who appeared as Accused 1 at the trial in the court, a quo, has appealed. [3] Incident All the charges arise on account of an incident which occurred at Ilitha Township, Zwelitsha on the evening of 01 April 2002. Four of the accused confronted the victims in their home. The deceased was shot several times and according to the post-mortem report died of ªbullet wounds to the chestº. His wife, complainant in Count 2, also sustained gunshot injuries but fortunately survived. In Counts 3 and 4 the deceased was relieved of the money and a vehicle at gunpoint. It is common cause that the actions of the perpetrators constitute the charges alleged. It is also common cause that appellant was not present when these events occurred. 2 [4] Appellant's Alibi The appellant advanced an alibi as his defence claiming to have been at a big church function in Alice. He was disbelieved. It would appear that veracity or truthfulness is not a virtue that the appellant has managed to internalise as a churchgoer. His mendacity was so self evident that his counsel on appeal, Advocate T. N. Price, has very fairly asked this court to disregard his alibi and approach the matter on the basis of the remainder of the evidence proffered by the State witnesses and one Sandile Joseph Smith (ªSmithº), who appeared as Accused 2, in particular. With this approach State counsel, Adv M. P. Z. Sotenjwa, was in full agreement. Appellant's role [5] As agreed between counsel it is now beyond dispute that the perpetrators, (the remaining accused and two accomplices), were conveyed in a vehicle belonging to the appellant to a point where five of them alighted and travelled on foot to the actual scene of the crimes. The appellant and accomplice witness Zenzile Johannes Mdlokovane (ªMdlokovaneº) (warned in terms of section 204 of the Criminal Procedure Act, 51 of 1977 (ªCPAº) waited for some time and then deserted the scene, much to the chagrin of the actual perpetrators on their return from killing and robbing. It is agreed by counsel that in the scenario of the criminal enterprise that was played out the vehicle should be seen as the getaway vehicle. State counsel avers, inter alia, the fact that he supplied the vehicle, and travelled with the other accused in order to provide a means of getting away makes this appellant fully complicit in the crimes they committed especially 3 as he had been involved in a reconnaissance of the crime scene some days before. As will be seen the issue of his alleged involvement in a reconnaissance has far reaching implications as regards the issue of complicity. Appellant counsel's neat response is that, whilst he was physically involved as alleged, except for the reconnaissance, he is not to be adjudged complicit for lack of mens rea, i.e., he was unaware of the nature and purpose of their intended actions and at no stage identified with such purpose. This submission is recast as follows ± there is a reasonable doubt of complicity on his part. That the fundamental issue is that of mens rea see S v Safatsa and Others 1988 (1) SA 868 (A) at 896 D±E in particular. This Court stands to be reminded that mendacity on the part of an accused is not to be equated with proof of guilt. Included in the institutional memory of the Court must be the sober realization that even innocent people lie, ªguild the lilyº, massage facts, exaggerate and change their stories particularly if the accused has a perception that the actual truth and/or circumstances of the matter are contextually embarrassing, seemingly incriminatory or just not good enough and that therefore the court will simply not believe him or her. See for instance S v MTSWENI 1985 (1) SA 590 (A) which in the headnote reads ± ªAlthough the untruthful evidence or denial of an accused is of importance when it comes to the drawing of conclusions and the determination of guilt, caution must be exercised against attaching too much weight thereto. The conclusion that, because an accused is 4 untruthful, he therefore is probably guilty must especially be guarded against. Untruthful evidence or a false statement does not always justify the most extreme conclusion. The weight to be attached thereto must be related to the circumstances of each case. In considering false testimony by an accused, the following matters should, inter alia, be taken into account: (a) the nature, extent and materiality of the lies and whether they necessarily point to a realisation of guilt; (b) the accused©s age, level of development and cultural and social background and standing insofar as they might provide an explanation for his lies; (c) possible reasons why people might turn to lying, e.g., because, in a given case, a lie might sound more acceptable than the truth; (d) the tendency which might arise in some people to deny the truth out of fear of being held to be involved in a crime, or because they fear that an admission of their involvement in an incident or crime, however trivial the involvement, would lead to the danger of an inference of participation and guilt out of proportion to the truth.º In this case the fact that the appellant provided the vehicle in which a murderous group was conveyed to the scene of their evil endeavours certainly provided a huge incentive for the appellant to alter the facts so as to distance himself from the scene. Hence the false alibi. It is on this platform that the appeal is founded. The issue [6] Since the appellant did not participate in the murder, attempted murder and robberies the crisp issue is whether or not the State proved beyond a reasonable doubt that the appellant was a co-perpetrator and/or had common purpose with the perpetrators. Instructive on the requirements 5 for common purpose to be satisfied is the case of S v NOOROODIEN EN ANDERE 1998 (2) SACR 510 (NC), which in the headnote reads ± (in dealing with allegations of a fatal assault) - ªGeneral principles of liability - Common purpose - What constitutes - Participant in common purpose sought to be held liable must associate ©actively© with achievement of common purpose - Requirements being: (1) participant to be present at scene of violence; (2) participant to be aware of assault upon victim; (3) participant to intend to make common cause with those actually perpetrating assault; (4) participant to manifest sharing of common purpose with perpetrators of assault by performing some act of association with conduct of others; (5) participant to have requisite mens rea in respect of killing of the deceased, being either dolus directus or dolus eventualis¼¼ ¼¼¼The liability of every co-perpetrator is based on his own act and his own intent¼¼.An accomplice is not a perpetrator. He associates himself with the act of the perpetrator by providing the information, the means or the opportunity to further the commission of the offence¼¼º (my italics) At the outset it was made clear that the State is alleging that the appellant was a co-conspirator, i.e. involved in the planning to commit the offence. If the appellant was involved as a co-perpetrator the issue is not only that of common purpose, which must be distinguished as a legal concept. So the first issue is the factual one of whether or not he actively conspired with the others to perpetrate the crimes. See S v NOOROODIEN EN ANDERE, supra, in which the distinction between conspiracy and common purpose is 6 clearly made. Also see S v Safatsa and Others, supra, at 896 and 901; S v Malinga 1963 (1) SA 692 (A) at 695; S v Daniëls 1983 (3) SA 275 (A) at 323F; S v Shaik 1983 (4) SA 57 (A) at 65A. What the State contends, and which the court a quo accepted, is that he was involved in a reconnaissance of the crime scene a day or so before actual perpetration so his involvement in planning the crime is a given. It contends further that, in any event, he identified with, approved of and associated himself with the intended and planned actions of the perpetrators. From the above what can be abstracted is that the appellant's guilt is proved if it has been shown beyond reasonable doubt that in providing transport to a point near the scene of the crimes the appellant was well aware of the intended purpose of his passengers who were the actual perpetrators and that he was identifying with such purpose. The judgement [7] For the sake of legal convenience I refer herein to the other accused as ªthe perpetratorsº (per S v NOOROODIEN, supra, distinguishing between an accomplice and a perpetrator).