THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

REPORTABLE

Case No: 269/13

In the matter between:

BEENESH DEWNATH

APPELLANT

and

THE STATE

RESPONDENT

Neutral citation: Dewnath v S (269/13) [2014] ZASCA 57 (17 April 2014)

Coram:
Maya, Willis and Saldulker JJA and Van Zyl and Mocumie AJJA

Heard:
7 March 2014

Delivered:
17 April 2014

Summary:
Criminal appeal against conviction ─ appellant convicted of
murder by common purpose ─ requirements of common purpose restated ─
active association ─ mens rea ─ the most critical requirement of active
association is to curb too wide a liability.

______________________________________________________________

ORDER
______________________________________________________________

On appeal from: KwaZulu-Natal High Court, Pietermaritzburg (Jappie,
Gyanda and Mokgohloa JJ sitting as Full Court):
1 The appeal is upheld.
2 The order of the court a quo is set aside and replaced with the following:
‘The appellant’s conviction and the sentence imposed are set aside.’
_____________________________________________________________

JUDGMENT
______________________________________________________________

Mocumie AJA (Maya, Willis and Saldulker JJA and Van Zyl AJA
concurring):

[1] This appeal arises from a bitter and murderous sibling rivalry. The
appellant, together with his parents, Mr Dewnath Ramkisson, Mrs Nirmalah
Ramkisson and two co-accused, were arraigned in the Kwazulu Natal High
Court, Pietermaritzburg for murder of the deceased, Mr Jairam Ramkisson,
and the attempted murder of his wife Mrs Sashika Ramkisson.

[2] The trial court convicted all the accused with murder. They were also
convicted of attempted murder, except the appellant. The appellant was
sentenced to 15 years’ imprisonment. On appeal to the full bench (Jappie,
Gyanda and Mokgohloa JJ), the appellant and his parents’ convictions and
sentences were confirmed. The appeal, in respect of the appellant only, is
with special leave of this court.

[3] The State led the evidence of Mr William Themba Sithole (Sithole),
who had pleaded guilty to the charges. He testified against the four as an
accomplice in terms of s 204 of the Criminal Procedure Act 51 of 1977 (the
CPA).

[4] Sithole testified that he was brought into contact with the appellant’s
father by his co-accused, Jabulani Mkhize (Mkhize), who in turn had been
recruited by the appellant’s father to kill the deceased. Mkhize took him to the
appellant’s family business, a fish shop adjacent to the deceased’s business,
where the proposed murder was discussed. Sithole demanded a fee of
R35 000 to carry out the assassination. The appellant’s father offered only
R15 000. They could not agree on the amount. He left to consider the reduced
fee. The next day he returned to the shop, met again with the appellant’s
father and agreed to a reduced fee of R20 000. He demanded a down
payment which was to be made upfront. The two conferred in the back of the
shop whilst the appellant’s wife, a young woman who served as a shop
assistant and the appellant, were in the front of the shop, apparently serving
customers. The appellant’s father did not agree with Sithole’s demand for a
down payment and went to call his wife to mediate. He returned with her and
the appellant in tow.

[5] According to Sithole, the appellant’s mother refused to accede to his
demand. She said that in 2005 a person whom they had hired to kill the
deceased disappeared with a pistol and R200 they had given him upfront.
Sithole further testified that the appellant then uttered the following words: ‘But
why are you asking for so much money? The person that we are asking you
to kill is absolutely worthless. I would understand if he was a member of the
taxi business. If I wasn’t involved in the police, with the police, I would kill him
myself.’ After uttering those words, the appellant left the room, leaving Sithole
with his parents. They continued with the negotiations.

[6] When he left the Ramkissons on that day there was still no agreement
in place. There is no evidence that any further discussions or negotiations
took place, or that the appellant was privy to such negotiations, or that he
formerly approved what was decided in his absence. Prior to this day, Sithole
did not know the appellant nor could he remember if he had seen him before.
A few days later, Sithole waited for the deceased as he was closing the shop
at around 18h00. As the latter locked the shop door he shot and killed him.
When the deceased’s wife turned around and attempted to stop him, he shot

her as well. She survived the shooting. The next day, the appellant’s parents
paid him for having killed the deceased.

[7] The main attack against the judgment of the trial court is that it erred in
convicting the appellant of murder based on common purpose. It was
contended that the State failed to prove that the words uttered by him were
sufficient to form an active association with the common purpose, between his
parents and their co-accused, to kill the deceased.

[8] The appellant testified in his own defence and denied any involvement
in the commission of the murder or having uttered the words testified to by
Sithole. The trial court accepted Sithole’s evidence about the involvement of
the appellant and that it proved that he had actively associated himself with
the commission of the murder of the deceased.

[9] The question is whether the trial court correctly concluded that the
evidence implicating the appellant was sufficient to conclude that he acted in
common purpose with the conspirators and had the necessary mens rea
justifying a conviction of murder.

[10] In S v Mgedezi1 this court stated the following:
‘In the absence of proof of prior agreement, accused  No 6, who was not shown to
have contributed causally to the killing or wounding of the occupants of room 12, can
be liable for those events, on the basis of the decision in S v Safatsa & others 1988
(1) SA 868 (A), only if certain prerequisites are satisfied. In the first place, he must
have been present at the scene where the violence was being committed. Secondly,
he must have been aware of the assault on the inmates of room 12. Thirdly, he must
have intended to make common cause with those who were actually perpetrating the
assault. Fourthly, 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 others. Fifthly, 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

1 S v Mgedezi & others 1989 (1) SA 687 (A) at 705I-706C.

foreseen that the possibility of their being killed and performed his own act of
association with recklessness as to whether or not death was to ensue.’

[11] This court further in S v Le Roux2 stated:
‘In S v Mgedezi & others 1989 (1) SA 687 (A) this court dealt with a situation where
there was no prior plan to commit the offence of public violence. It was stated there
that a general and all-embracing approach regarding all those charged is not
permissible. It was stated further that the conduct of the individual accused should be
individually considered, with a view to determining whether there is a sufficient basis
for holding that a particular accused person is liable, on the ground of active
participation in the achievement of a common purpose that developed at the scene.
In that case the following was stated:
“A view of the totality of the defence cases cannot legitimately be used as a brush
with which to tar each accused individually, nor as a means of rejecting the defence
versions en masse.”
And further:
‘The trial Court was obliged to consider, in relation to each individual accused whose
evidence could properly be rejected as false, the facts found proved by the State
evidence against that accused, in order to assess whether there was a sufficient
basis for holding that accused liable on the ground of active participation in the
achievement of a common purpose. The trial Court’s failure to undertake this task
again constituted a serious misdirection.’ (My emphasis)

[12] In S v Thebus3 the Constitutional Court reiterated the applicability of
the doctrine as follows:
‘If the prosecution relies on common purpose, it must prove beyond a reasonable
doubt that each accused had the requisite mens rea concerning the unlawful
outcome at the time the offence was committed. That means that he or she must
have intended that criminal result or must have foreseen the possibility of the criminal
result ensuing and nonetheless actively associated himself or herself reckless as to
whether the result was to ensue.’

2 S v Le Roux & others 2010 (2) SACR 11 (SCA) para 17. See also Scott v S (473/10) [2011]
ZASCA 121 (31 August 2011) para 23; Azwihangwisi Mmboi v S (167/12) [2012] ZASCA 142
(28 September 2012).
3 S v Thebus 2003 (2) SACR 319 (CC) para 49; S v Safatsa above; S v Mgedezi & others
above at 705I-706C.

[13] In convicting the appellant, the trial court accepted the appellant’s
version that he had no prior agreement with Sithole and his parents to kill the
deceased. But it reasoned that ‘the only inference to be drawn was that when
the appellant uttered those words, he did so with the intent to persuade
Sithole to carry out the plan and force him to abandon or forgo his demand for
a down payment or deposit’. On appeal, the court a quo found that the trial
court could not be faulted when it concluded that the conduct of the appellant
was consistent with conduct associating himself with the common purpose to
have the deceased killed.

[14] Although during the trial the appellant denied having uttered the words
Sithole imputed to him, in this court the trial court’s acceptance of Sithole’s
evidence and its rejection of the appellant’s evidence on this aspect was,
quite correctly in my view, not placed in issue. It was accordingly conceded on
his behalf that he did utter those words. However, it was submitted that the
words were insufficient for a conclusion that the State had proved that the
appellant actively associated himself with the plan by his parents or Sithole to
kill the deceased. It was further argued that there was no reliable evidence
linking the appellant to any of his parents and Sithole’s transgressions prior to
and after the commission of the murder. And even if it were accepted that the
words uttered by the appellant connected him to the commission of the
murder, there was insufficient proximity with the final result to justify a
conviction of murder on the basis of common purpose. If anything, so it was
argued, the State relied solely on what the trial court stated in its judgment,
namely that the only inference that could be drawn from the circumstances
was that the appellant, by uttering those vengeful words, wanted to influence
Sithole to commit the murder.

[15] In the light of the facts of this case, it is important to note that the
common purpose doctrine as espoused in S v Mgedezi & others has been
pronounced by the Constitutional Court to be constitutional.4 The most critical
requirement of active association is to curb too wide a liability. Current

4 S v Thebus above.

jurisprudence, premised on a proper application of S v Mgedezi & others,
makes it clear that (i) there must be a close proximity in fact between the
conduct considered to be active association and the result; and (ii) such active
association must be significant and not a limited participation removed from
the actual execution of the crime.

[16] There is no evidence that the appellant actively participated in the
murder apart from the fact that he walked in from the front part of the shop to
the back where his father was with Sithole and uttered the vengeful words. To
my mind, therefore, the State had to prove some form of active participation
on the part of the appellant than just the words he uttered. Mere approval of
the commission of the murder sought by the perpetrators does not suffice.5 As
morally reprehensible as it is that the appellant wished his uncle dead or even
thought of killing him himself, what he said does not amount to active
association with the common purpose of his parents and Sithole. On the
accepted evidence his ‘participation’ was insignificant. It was limited and
removed from the actual executive action. It can best be regarded as
evidence that he had some knowledge of the plan that was in the process of
being hatched to kill the deceased.

[17] A conviction on murder on this set of facts would not withstand the
ordinary principles of criminal liability, let alone the principles of causation.
This is so because, generally speaking, in our law, the guilt of an accused
falls to be decided with reference to his own acts and his own state of mind.6
There is simply no basis to conclude that the appellant intended to kill the
deceased. Furthermore, the inference that the trial court sought to draw was
not the only inference to be drawn from the proven facts.7

[18] Although the appellant was embroiled in the bitter rivalry between the
two families and there may be a suspicion that he was in cahoots with his
parents to kill the deceased, he cannot be convicted on suspicion alone. The

5 S v Khumalo & andere 1991 (4) SA 310 (A) at 351E-F.
6 See S v Thomo & others 1969 (1) SA 385 (A) at 394B-C.
7 R v Blom 1939 AD 188 at 202-203.

State must prove its case beyond reasonable doubt and an accused does not
bear any onus to prove his innocence. Whether one subjectively believes him
or her is not the test. The test is whether there is a reasonable possibility that
his evidence may be true.8 For these reasons, the appeal must succeed.

[19] In the result, the following order is granted.
1 The appeal is upheld.
2 The order of the court a quo is set aside and replaced with the following:
‘The appellant’s conviction and the sentence imposed are set aside.’

________________________
B C MOCUMIE
ACTING JUDGE OF APPEAL

8S v Shackell 2001 (2) SACR 185 (SCA) at 194H-H; S v V 2000 (1) SACR 453 (SCA) at
455A-B.

APPEARANCES:
For Appellant...

K J Kemp
Instructed by:
Anand-Nepaul Attorneys, Durban
Phatshoane Henney Inc, Bloemfontein

For Respondent...
H M Zulu
Instructed by:
The Director of Public Prosecutions,
Pietermaritzburg
The Director of Public Prosecutions,
Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
17 April 2014
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

BEENESH DEWNATH v S

The Supreme Court of Appeal (SCA) today handed down its unanimous decision upholding
an appeal against the KwaZulu-Natal High Court’s conviction of the appellant on the charge
of murder, for which he received a sentence of 15 years’ imprisonment.

The appellant and his parents were charged with murder for their role in the orchestration of
the murder of the deceased, the appellant’s uncle. The State led the evidence of Mr William
Themba Sithole (Sithole), who had pleaded guilty to the charge. He testified that the
appellant’s parents had hired him to perpetrate the murder and that the appellant had been
present at the time of the negotiations, albeit not in the same room. The appellant’s sole
involvement in the orchestration of the crime was his utterances of certain words, which the
court below determined as being intended to encourage Mr Sithole to commit the crime.
Based on these utterances, the court below concluded the appellant had associated himself
with the common purpose to commit the murder.

On appeal the SCA determined that the evidence implicating the appellant - his utterances to
Mr Sithole - were insufficient to conclude that he acted in common purpose with the

conspirators and had the necessary mens rea justifying a conviction of murder. The
appellant’s utterances are at best to be regarded as evidence that he had some knowledge of
the plan that was in the process of being hatched to kill the deceased. However, his mere
knowledge and approval of the commission of the murder does not suffice; proof of some
form of active participation is required for a conviction on the charge.

In the result, both the conviction and the sentence were set aside.
---ends---