THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No 22/95
REPORTABLE
In the matter between
DANIEL MUSINGADI                                         FIRST APPELLANT
SARAH LAMBANI                                        SECOND APPELLANT
SAMUEL MALENGA                                         THIRD APPELLANT
DAVID MUTHIDZA                                        FOURTH APPELLANT
and
THE STATE                                                                RESPONDENT
Coram:
Farlam, Mthiyane JJA et Comrie AJA
Heard:
31 August 2004
Delivered: 23 September 2004
Summary:
Criminal law – common purpose – expansion of – whether
effective disassociation from.
Criminal law – circumstantial evidence  –  weight of  –  failure to
controvert by defence testimony – inferences drawable.
Criminal law – extra-curial declarations by accused – weight of.
Criminal law – death sentence abolished – other sentences
substituted.
______________________________________________________
JUDGMENT
______________________________________________________
COMRIE AJA

[1] In December 1994 the four appellants were convicted by a
circuit court, comprising Marais J and assessors, sitting at Louis
Trichardt, of:
(1)
murder; and
(2)
robbery with aggravating circumstances.
A fifth accused, Ms Martha Mahtshemule, was acquitted. The first
and second appellants were sentenced to death for the murder and
to 12 years’ imprisonment each for the robbery. In terms of s 316A
of the Criminal Procedure Act 51 of 1977, as it then stood, they
enjoyed an automatic right of appeal to this court, which they
exercised. The third and fourth appellants were sentenced to
effective terms of imprisonment of 18 and 20 years each. The trial
court granted them leave to appeal against their convictions only.
Now, almost ten years later, the appeal is before this court.
[2] Upon our enquiry counsel were unable to furnish a full or
complete
explanation
for
this
highly
regrettable
delay.
Mr van Heerden for the state undertook to bring the matter to the
attention of the Director of Public Prosecutions, Pretoria, and to
institute inquiries, all with a view to avoiding a repetition. It is often
said that justice delayed is justice denied. While this may be an
overstatement in some contexts, it does underline the need for
reasonable expedition. The present is not a case where leave to

appeal was granted late or the appeal itself noted late. In the
ordinary course it should have come before this court eight or more
years ago. The unexplained delay is to be deprecated.
[3] The events giving rise to the convictions occurred in early July
1993. By the end of October practically all the evidence upon which
the state eventually sought to rely had been assembled. That was
before the Interim Constitution (Act 200 of 1993) came into force.
The trial itself, however, was heard during the last quarter of 1994,
and thus under that Constitution. In S v Makwanyane and another
1995 (2) SACR 1 (CC) the Constitutional Court declared the death
sentence unconstitutional. By a subsequent amendment to the
Criminal Procedure Act the death sentence was removed from the
statute book (see the Criminal Law Amendment Act 105 of 1997,
s 34). Counsel were correctly agreed that in the event of the murder
convictions of first and second appellants being sustained, their
death sentences must be set aside and replaced by other proper
sentences. (See s 1(10) of Act 105 of 1997.)
[4] Appellants 3 and 4 were both arrested in Randburg on 30
August 1993. They were conveyed to Louis Trichardt where, later
that same day, they made statements to magistrates Gericke and
Boshoff respectively. The admissibility of these statements was

contested on the ground that they had not been made freely and
voluntarily. After a trial within a trial the court below received the
statements in evidence, although at the same time it rejected
statements made to magistrates by appellants 1 and 2. All four
statements complied with the requirements of s 217(1)(b) of the
Criminal Procedure Act, with the consequence that the onus rested
upon the appellants to prove on a balance of probabilities that their
statements were not freely and voluntarily made (the so-called
reverse onus). The trial court held that appellants 3 and 4 had not
discharged that onus. The reverse onus was subsequently held to
be unconstitutional: S v Zuma and others 1995 (2) SA 642 (CC).
The declaration of invalidity does not apply to the present matter:
see para [44] of the judgment of Kentridge AJ. It should be noted,
moreover, that the trial court also said:
‘Dit is onnodig om op die bewyslas te steun. Ons bevind dat die bekentenisse
bo redelike twyfel vrywilliglik deur beskuldigdes 3 en 4 gemaak is.’
[5] The deceased, Mrs Dercksen, was a middle-aged woman
who, with her husband, lived on the farm Doornspruit in the Louis
Trichardt district. Her parents, Mr and Mrs du Toit, lived in another
house on the same farm. Security around the Du Toits’ house was
tight: it included barbed-wire fencing and Pitbull terriers. Within the
same house, in a room called the office, substantial sums of cash

were accumulated from the farm’s business transactions and stored
in a safe. The Du Toits’ domestic worker was the second appellant,
Ms Sarah Lambani. In the absence of the Du Toits – they were away
at the relevant time – she had the keys to the compound and she
was under strict instructions as to who might and might not be
admitted. The key to the safe was held by the deceased.
[6] On 5 July 1999, in her parents’ house, the deceased was
assaulted and strangled to death. There was also an attempt to
poison her by the administration of a noxious mixture containing
acid. The safe was opened and cash was taken. As there were no
signs of forced entry, suspicion fell on the second appellant. Within
days she, her alleged aunt (accused no 5) and the first appellant
were arrested. On the day of his arrest the first appellant pointed out
certain places to Capt van Staden. After a second trial within a trial,
the trial court admitted the contested evidence of such pointings out
and accompanying declarations. On this occasion the trial court held
that the state had proved voluntariness beyond reasonable doubt. In
the same judgment the trial court declined to accept evidence of
admissions made by accused no 5 to another police officer, and of a
pointing out by her to him, on the ground that the state had not
discharged the last mentioned onus of proof.

[7] The police trail led to appellants 3 and 4 who were eventually
located in Randburg, where they were arrested on 30 August 1993.
As I have said they made their statements to magistrates in Louis
Trichardt on the same day.
[8] The appellants applied for bail in the magistrate’s court. In
terms of s 235 of the Criminal Procedure Act the trial court received
the evidence given by the first appellant at the bail enquiry, but not
the evidence given by the other applicants for bail.
[9] At the trial all the appellants, and accused no 5, pleaded not
guilty. Appellants 1, 3 and 4 (and accused 5) raised alibi defences.
The second appellant’s defence, announced by her counsel at the
plea explanation stage, was that she had been a victim of the
robbery, which had been carried out by men wearing balaclavas
over their faces. The state adduced no direct evidence implicating
any of the appellants in the commission of the robbery or the
murder. At the close of the state case the evidence implicating them
indirectly consisted in the main of the material to which I have
already referred, plus the testimony of Ms Janet Majiye who was
living with the third appellant as his wife. She gave evidence against
appellants 1 and 3 and against accused no 5.

[10] The first and second appellants closed their cases without
giving evidence or calling witnesses. Appellants 3 and 4 testified and
persisted in their alibis. Appellant 4 called his mother in support of
his alibi. Accused no 5 testified in her own defence; among other
things, her evidence affected appellants 1 and 2.
Admissibility of Evidence
[11] It is convenient to deal first with the attacks on the admissibility
of evidence advanced by counsel for the appellants, Mr Barnard. He
submitted that the evidence given by the first appellant at his
application for bail should not have been received by the trial court,
because it did not appear from the record that the appellant had
been ‘properly warned’ before testifying in support of bail. The
evidence in question was to the effect that on the morning of
5 July 1993 he visited the second appellant, with whom he claimed
to have had a relationship, at the farm from about 9.00 am to
10.00 am. This prima facie destroyed his alibi, which was also
undermined by the evidence of Ms Majiye, but did not link him
directly with the crimes which were probably committed later in the
day. At the bail hearing first appellant was represented by an
attorney, Mr Hamman, who elicited this piece of evidence from his

client during examination in chief. As to this, the prosecutor also put
a few questions.
[12] The bail evidence was tendered, and received, by the trial
court in terms of s 235 of the Criminal Procedure Act. It was not
received in terms of s 60(11B)(c); that subsec – which provides for a
warning by the judicial officer presiding – was not yet in existence.
At the trial counsel for no 1 raised a single objection, namely that the
record of the bail proceedings was not properly certificated in terms
of s 235. The objection was not upheld. Counsel for other accused
successfully objected to their bail evidence on other grounds, but
counsel for no 1 raised no question of unfairness. In the absence of
such an objection, there was no enquiry by the trial court into
fairness. See S v Nomzaza 1996 (2) SACR 14 (A); S v Dlamini; S v
Dladla and others; S v Joubert; S v Schietekat 1999 (2) SACR 51
(CC). It can safely be inferred from attorney Hamman’s conduct of
the bail application, and from his evidence at the trial on other
issues, that he was an experienced and competent attorney. We
have to assume that he advised his client of his rights and about the
implications thereof. Prima facie fairness was served. Absent an
objection on this score, and a consequent enquiry by the trial court
into the issue thus raised, there is no basis upon which we can
conclude by way of conjecture that there was any unfairness when

the appellant testified as he did. That such evidence was later to
prove adverse to his alibi does not amount to unfairness. As
Kriegler J trenchantly observed in Dlamini’s case at [95]:
‘That [constitutional] shield against compulsion does not mean, however, that
an applicant for bail can choose to speak but not to be quoted. As a matter of
policy the prosecution must prove its case without the accused being compelled
to furnish supporting evidence. But if the accused, acting freely and in the
exercise of an informed choice, elects to testify in support of a bail application,
the right to silence is in no way impaired. Nor is it impaired, retrospectively as it
were, if the testimony voluntarily given is subsequently held against the
accused.’
[13] As I have said earlier, the bail evidence did not implicate the
first appellant in the commission of the crimes. What implicated him
to some extent were his pointings out to Capt van Staden and the
accompanying explanations. The fairness of the procedure whereby
Van Staden, who was independent of the investigation, conducted
and recorded the pointings out and accompanying explanations,
was not questioned at first instance or on appeal. The appellant was
arrested on the morning of 9 July 1993 and later that same day
accompanied Van Staden to the scene. The defence objected to this
evidence on the ground that after his arrest the appellant was
assaulted by other police officers, one such assault in the bush
being particularly severe. This was the subject of the second trial

within a trial. The appellant also testified that in small measure he
was told by those policemen what to say, but that for the most part
he invented the information which he conveyed to Van Staden. The
police witnesses denied the assaults and attributed the wounds on
the appellant’s forearms to a struggle that occurred when, wearing
handcuffs, he refused to climb onto the back of the police bakkie
and had to be forced to do so. Dr Botha, who examined the
appellant a few days later, expressed the opinion during the first trial
within a trial that the forearm injuries could not have been caused by
the handcuffs. She changed her opinion during the second trial
within a trial when she was shown similar handcuffs and the
circumstances were explained.
[14] Of greater significance was that the appellant did not manifest
the injuries which were to be expected from the assaults, and
especially from the severe assault in the bush. The appellant
claimed that among other things he had been repeatedly hit with the
handle of a pick-axe on his body and on his head. To Dr Botha he
claimed multiple blows to the head; in evidence he claimed one
blow. An injury to his chest, which the appellant claimed to Dr Botha
was the result of a kick, turned out to be an old, healed rib-fracture
sustained, it would seem, in a bus accident. But recent injuries,
other than to his forearms, were not present.

[15] Much was made during the second trial within a trial of an
alleged swelling of the appellant’s face. Dr Botha did not observe it,
nor did magistrate Roos. The photographs (exhs S and S1) taken of
the appellant immediately prior to his departure on the pointing out
expedition and immediately after his return, do not support the
existence of such a swelling, especially bearing in mind that the
appellant has a naturally full face. I accordingly do not think it
necessary to go into the evidence of attorney Hamman and
magistrate Boshoff on this point save to mention that the pointings
out occurred before the appellant was advised by attorney Hamman
not to make any statements.
[16] By the end of the lengthy trial within a trial the appellant was
thoroughly discredited, and the trial court so found. On appeal
Mr Barnard was unable to challenge that finding. He sought,
however, to paint a picture of persistent police violence towards all
five accused, including first appellant. Among other matters we were
referred to the statements by appellants 1 and 2 which were
excluded (no 1’s statement was made almost three months later, on
5 October 1993); to the exclusion of admissions allegedly made by
accused no 5 on the day of arrest; and to the episode on 14 July
1993 when first appellant was taken to magistrate Roos, claimed to
have been threatened and assaulted, and then decided not to make

a statement. While all these matters may raise a suspicion in the
mind of a court, the trial court after careful enquiry found it proven
beyond reasonable doubt that the pointings out to Van Staden were
made by the appellant freely and voluntarily. I see no ground for
interfering with the conclusion of the court a quo.
[17] With regard to the statements made on the day of their arrest
by third and fourth appellants to magistrates Gericke and Boshoff
respectively, Mr Barnard submitted: (a) that the trial court applied
the wrong (ie reverse) onus of proof; and (b) that applying the
correct onus (ie beyond reasonable doubt) the trial court should
have concluded that the statements were not made freely and
voluntarily. The first submission is unsound in law. Para [44] of the
judgment in S v Zuma, supra, reads:
‘[44] The application of s 217(1)(b)(ii) since 27 April 1994 may well have
caused injustice to accused persons, but we cannot repair all past injustice by a
simple stroke of the pen.  Weighing all the relevant considerations it seems to
me that the proper balance can be struck by invalidating the admission of any
confession in reliance on s 217(1)(b)(ii) before the date of our declaration, but in
respect only of trials begun on or after 27 April 1994, and not completed at the
date of delivery of this judgment.  The effect might be in those trials to require
reconsideration of the admissibility of confessions already admitted, including
the hearing of further evidence.’

[18] The present appeal falls precisely within the class of transient
cases excluded from the declaration of invalidity. When this was
pointed out to Mr Barnard during argument, he correctly conceded
the point. He was then asked whether he could submit that
appellants 3 and 4 had discharged the reverse onus. He conceded
that he could not. That too was a correct concession on the
evidence. Mindful, however, of the remarks of Kentridge AJ, I will
briefly re-examine the position. It will be recalled that the trial court
said:
‘Dit is onnodig om op die bewyslas te steun. Ons bevind dat die bekentenisse
bo redelike twyfel vrywilliglik deur beskuldigdes 3 en 4 gemaak is.’
In truth by the end of the first trial within a trial the credibility of
appellants 3 and 4 was in tatters. The high watermark of counsel’s
argument was the portrait of persistent police violence to which I
have adverted earlier. That is insufficient to disturb the trial court’s
finding quoted above. On the contrary, the strong probability in my
view is that once apprehended in Randburg, these appellants
realised that the game was up, at least in part. They accordingly
decided of their own volition that it was in their interests to admit the
less serious charge of robbery, but to distance themselves from the
more serious charge of murder. That is how their statements read.
In my opinion, therefore, submission (b) above must also fail.

[19] It follows from the aforegoing that all the contentious evidence
admitted against the several accused was in my judgment correctly
admitted. I should mention that in the judgment on conviction
Marais J was at pains to point out that the extra-curial declarations
by appellants 1, 3 and 4 were admissible against their authors only,
and not against their co-accused.
The Convictions
[20] It is convenient to begin with the second appellant. The
evidence against her, which I shall call the general evidence, was
entirely circumstantial. It was admissible against the second
appellant and provided that an adequate link was established,
against the other appellants as well. We should perhaps remind
ourselves at this stage that there is nothing wrong in principle with
circumstantial evidence. On the contrary it can sometimes be
compelling. In the prelude to their discussion of R v Blom 1939 AD
188 and the rules of inferential reasoning, Zeffertt, Paizes and
Skeen: The South African Law of Evidence rightly say at 94:
‘Circumstantial evidence is popularly supposed by laymen to be less cogent
than direct evidence. This is, of course, not true as a general proposition. In
some cases, as the courts have pointed out, circumstantial evidence may be
the more convincing form of evidence. Circumstantial identification by a
fingerprint will, for instance, tend to be more reliable than the direct evidence of

a witness who identifies the accused as the person he or she saw. But
obviously there are cases in which the inference will be less compelling and
direct evidence more trustworthy. It is therefore impossible to lay down any
general rule in this regard. All one can do is to keep in mind the different
sources of potential error that are presented by the two forms of evidence and
attempt, as far as this is possible, to evaluate and guard against the dangers
they raise.’
This passage was quoted by Mthiyane JA in the judgment of this
court in S v Mcasa and another (delivered 15 September 2003,
unreported, Case No 638/2002) at para [8]. The substance of the
passage can be traced back to Hoffmann: SA Law of Evidence (1ed,
1963) at 31.
[21] The evidence against the second appellant may be
summarised as follows. She was employed at the farm as a
domestic worker in the house of the Du Toits. They were away at
the time. The house was heavily secured by barbed-wire fencing,
said to be eight foot tall, and two dogs of savage mien. When
visitors called, the dogs had to be locked away. The windows had
burglar bars. The appellant had the key to the compound. The gates
had to be kept locked at all times. She was under strict instructions
as to who might and might not be admitted. She knew that cash was
kept in the safe in the office. She knew that the deceased (the
Du Toits’ daughter) had the key to the safe. She knew that there

was caustic soda in the pantry. She was a short, thin woman
whereas the deceased was a thickset middle-aged woman. The
deceased was overpowered, tied up, and severely assaulted. There
was an attempt to poison her with a noxious acidic mixture. She was
eventually strangled to death by the use of what seems to have
been a tie around her neck. The safe was opened and cash taken.
There were no signs of forced entry on the day in question.
[22] The appellant’s defence, stated on her behalf at the beginning
of the trial, was that she was a victim, not one of the perpetrators:
that three men wearing balaclavas had gained access to the house
while she was working, detained her and apparently committed the
crimes. The appellant gave no evidence to this effect. Two matters
were raised in cross-examination of Mrs du Toit by counsel for no 2.
The first had to do with the sale of meat. This can be disregarded
because Mrs du Toit said that such sales were rare and occurred
well away from the house. There was no evidence to the contrary.
The second aspect related to a possibly different arrangement with
regard to the key between the appellant and the deceased in the
absence of the Du Toits. Naturally, Mrs du Toit could not testify with
certainty on this point. The appellant did not give evidence of such a
different arrangement.

[23] None of appellants 1, 3 and 4 implicated the second appellant
in oral evidence. No 1 did not testify; no’s 3 and 4 were steadfast in
their alibis. The case appeared to take a turn right at the end, when
accused no 5 testified. In answer to questions by the court, and then
by the prosecutor, she spoke of inconsistent explanations of the
robbery furnished to her by the second appellant. Her counsel was
afforded the opportunity of additional cross-examination. In the
judgment on conviction, weight was attached to the evidence of no 5
and to the propositions which were put and not put to her by counsel
for the second appellant. Without holding that the trial court erred in
his connection, I am of opinion that this was an unnecessary
excursus, given the weight of the prosecution case.
[24] The uncontroverted evidence all points in one direction. The
absence of the Du Toits presented a good opportunity to steal
money from the safe, to which the deceased held the key. To obtain
that key the deceased had to be overpowered, a feat which no 2
was physically unlikely to achieve on her own. So the three men, to
whom she refers in her plea explanation, were called in to assist.
They could not have got through the barbed wire, and past the dogs,
unless the appellant admitted them. This is confirmed by the
absence of signs of forced entry. The inference is inescapable that
the second appellant was party to a conspiracy to rob the deceased

and its implementation. Since grievous bodily harm was inflicted on
the deceased before, during or after the robbery by one or more of
the robbers, the appellant’s guilt on the charge of robbery with
aggravating circumstances was in my view proven beyond
reasonable doubt.
[25] However, there was also an attempt to kill the deceased by
poisoning her, followed by her actual death as a result of
strangulation. The explanation for these events must surely lie in the
fact that no 2 was well-known to the deceased. Had the deceased
survived the robbery, she would have identified no 2 as the
household traitor. The deceased therefore had to be killed in order
to avoid no 2’s detection. Again, the inference appears to be
inescapable that the appellant was party to the murder. First, she
had the prime motive to avoid detection. Second, she knew about
the caustic soda in the pantry, whereas the others probably did not.
It is possible that the appellant did not participate in or foresee the
strangulation. If so, it matters not: the deceased’s death by whatever
means was in the air, it was part of the appellant’s plan. I
accordingly have no doubt that the second appellant was correctly
convicted of murder with direct intent to kill.

[26] I turn to appellants 3 and 4. The evidence which specifically
implicated no 3 was his statement to magistrate Gericke, made on
the day of arrest. This implicated no 3 in at least the robbery. In
addition Ms Majiye testified that on what seems to have been the
morning of 5 July he was fetched by a woman who may have been
accused no 5. The appellant had previously told his wife that there
was money on the farm. Later that day, according to Ms Majiye, the
appellant left for the city. The third appellant’s defence was that he
had been working in Randburg since the beginning of the year as a
welder. It was common cause that he was arrested in Randburg at
the end of August. He attributed his wife’s adverse testimony to the
improper influence of the investigating officer. The trial court found
Ms Majiye to be a good witness. On a perusal of the transcript of her
evidence, I can see no reason to disagree with that finding. She
undermined the alibi and furnished some tentative links between the
appellant and the commission of the crimes.
[27] Faced with the statement, which once admitted could not be
explained away, and supported by the evidence of Ms Majiye, the
trial court rightly rejected the alibi defence. In doing so, however, the
court erred in one respect. It held against no 3 that he had failed to
call as a witness his employer, whose identity was known, to
corroborate his alibi. At the commencement of the trial counsel for

no 3 informed the court that his client’s defence was an alibi: ‘Hy
was in Randburg gewees op daardie stadium, op die perseel van
J & J Service’. (In his evidence no 3 stated the same thing.) The
state was thus aware from the beginning of the trial of the
appellant’s alleged alibi and of the identity of the employer. It was
not suggested by prosecution or defence that there was any
difficulty in locating the employer and ascertaining whether the
employment records supported the alibi for 5 July or supported
no 3’s prolonged absence from home. Nor was it suggested by the
prosecution that a representative from the employer would for some
reason be unduly well disposed towards the appellant. In these
circumstances it seems to me that it was equally open to either side
to call the employer and that an inference against no 3 was not
warranted. Since the onus of disproving the alibi was on the state,
there is even something to be said for the view that an inference
should have been drawn against the prosecution. R v Bezuidenhout
1954 (3) SA 188 (A) at 196H-197E; 226. While the error by the court
below constituted a misdirection, I do not consider it to have been
material in the circumstances. On the evidence the alibi was bound
in any event to have been rejected.
[28] The evidence which specifically implicated appellant 4 was his
statement to magistrate Boshoff, made on the day of his arrest. This

implicated him in at least the robbery. His defence was an alibi,
namely that he had left for Randburg on 1 June 1993 where he
remained until his arrest there at the end of August. The appellant’s
mother testified in support of the alibi, but she proved to be
hopelessly unreliable and her evidence was rightly rejected by the
trial court. The statement, once admitted, could not be explained
away. No 4’s alibi was correctly rejected.
[29] In broad terms the statements of appellants 3 and 4 were
similar, although inevitably some of the details varied. They admitted
going to the farm in the morning (in no 3’s case, to fetch money),
where the domestic worker, after locking up the dogs, allowed
them in. It was only in the afternoon, however, that the deceased
returned to the house unaccompanied. It was then that the
appellants and third man (Daniel – accused no 1?) grabbed the
deceased, tied her up and blindfolded her. Money was procured
from the safe or office. It was at this juncture, the robbery
completed, that the domestic worker (according to no 3, ‘Sarah’ –
accused no 2?) proposed poisoning the deceased. According to
no 3, the men refused and Sarah appeared to go ahead with the
poisoning on her sole account. According to no 4, the men refused
and Samuel (no 3?) threw the poison away; but the domestic and
‘Daniel’ (no 1?) made a second attempt using other poison.

According to both appellants all three men thereupon left the
premises taking with them the money which was later shared. In
both statements there was mention of a ‘Martha’. If that was
intended to mean accused no 5, it suffices to say that her guilt was
not proved beyond reasonable doubt, which is not the same thing as
saying that she was innocent.
[30] Neither appellant 3 nor appellant 4 mentioned, in their
statements, the deceased’s death by strangulation. No 3 could not
say whether the deceased was still alive when the men left, only that
they had tied her up. No 4 could not say whether the second
poisoning attempt succeeded because he did not see it – he heard
about it from Daniel. On a fair interpretation he too left the deceased
while she was bound.  According to his statement the domestic
worker said that if the deceased was not poisoned, she (the
domestic) would be arrested.
[31] The trial court accepted the two statements at face value. It
accordingly accepted the reasonable possibility that the deceased
was still alive when the men left the house, taking the money with
them, and that the deceased may have been strangled to death by
no 2 after their departure. In convicting appellants 3 and 4 of murder

on the basis of dolus eventualis the court pointed to a number of
facts:
-
that the appellants were responsible for the deceased’s
captive state as part of the joint enterprise to rob;
-
that when they departed, they left the deceased trussed up
and helpless;
-
that the appellants knew, when they departed, that no 2 was
intent on killing the deceased; and
-
that the appellants must have known, and therefore knew, that
the deceased was powerless to resist or withstand no 2’s
murderous intent.
[32] Applying R v Chimbamba and another 1977 (4) SA 803 (R AD)
the trial court said that in the above circumstances appellants 3 and
4 ‘cannot in law just be allowed to wash their hands of what they
now knew to be the consequence of leaving the deceased a bound,
helpless captive at the mercy of a vicious would-be murderer’. The
trial court said further:
‘By failing to release the deceased when they knew her death was probably
imminent if she was not released, accused 3 and 4 persisted in the unlawful
activity of holding deceased captive at the time when they as a fact foresaw that
the continuance of that unlawful act would enable accused 2 to kill the
deceased. They therefore unlawfully continued to hold deceased a captive,

reckless of whether or not deceased was killed as a direct result of being held
captive.’
and
‘What we are dealing with in this case is not common purpose. It is continuation
in an unlawful act, to wit, the holding of the deceased as captive, when they as
a fact foresaw that that was likely to result in murder.’
[33] The latter proposition assumes that an intent to kill was not
part of the common purpose in the first place. It is implicit in the
judgment that the trier of fact so assumed or found otherwise the
reasoning to which I have referred would have been unnecessary.
Perhaps the court below took that unstated view of the facts
because there was no evidence to indicate that the men went armed
to the farm, or that arms were used. It seems to me, however, that
the facts raised two closely related issues. The first is whether the
common purpose to rob was expanded, as events progressed, so as
to include a common purpose to murder. If so, the second issue is
whether appellants 3 and 4 effectively disassociated themselves
from the expanded common purpose.
[34] The appellants purported to disassociate themselves from the
murder (they refused to be part of the poisoning) but not from the
robbery (they went off with the money and shared it). What had
become clear to them, however, was that the robbery was

developing into a murder which would be facilitated by their own
prior conduct. It appears to me that by departing the scene, and
leaving the helpless deceased to her probable (and actual) fate, the
appellants must be taken to have acquiesced in the expansion of the
common purpose unless they took steps effectively to disassociate
themselves from that development. That our law recognises a
defence of disassociation (in some other jurisdictions called
withdrawal) is clear. S v Singo 1993 (1) SACR 226 (A); S v Nduli
and others 1993 (2) SACR 501 (A); S v Lungile and another 1999
(2) SACR 597 (SCA). See too S v Nzo and another 1990 (3) SA 1
(A) at 11D-I. In the case of a conspiracy or common purpose,
Gubbay CJ ventured the following dictum in S v Beahan 1992 (1)
SACR 307 (ZS) at 324b-c:
‘I respectfully associate myself with what I perceive to be a shared approach,
namely, that it is the actual role of the conspirator which should determine the
kind of withdrawal necessary to effectively terminate his liability for the
commission of the substantive crime. I would venture to state the rule this way:
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. Where,
however, there has been participation in a more substantial manner something
further than a communication to the co-conspirators of the intention to
dissociate is necessary. A reasonable effort to nullify or frustrate the effect of his

contribution is required. To the extent, therefore, that the principle enunciated in
R v Chinyerere (supra at 579B and 578E) is at variance, I would with all
deference, depart from it.’
[35] This court has twice expressly left open the correctness of this
dictum and whether it is rule of law or a rule of thumb. See Nduli’s
case, supra, at 5076; Lungile’s case, supra, at 603 para [20]. What
may be gathered from our case law, however, is that not every act of
apparent disengagement will constitute an effective disassociation.
Compare Snyman: Strafreg (4ed) at 267-9. It appears that much will
depend on the circumstances: on the manner and degree of an
accused’s participation; on how far the commission of the crime has
proceeded; on the manner and timing of 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 list
of circumstances is not exhaustive. To reduce this composite of
variables to a workable rule of law may be artificial, even unwise. In
an article entitled ‘Accomplices and Withdrawal’ (1981) 97 LQR 575
Professor
David
Lanham
reviewed
the
case
law
in
the
Commonwealth and USA. He concluded at 591:
‘While it is not possible to produce a detailed definition of withdrawal as a
defence to accomplice liability, a number of principles can be extracted from the
weight of authorities examined above. These principles are as follows:

1.
Any withdrawal, voluntary or otherwise, which negates the actus reus of
accomplice liability exculpates the accused.
2.
A withdrawal which does not negate the actus reus of accomplice liability
may nonetheless be defence if certain conditions are satisfied –
(a)
Such a withdrawal must be a voluntary withdrawal.
(b)
Whatever form the participation takes, reasonable steps to
prevent the crime may exculpate the accused even if there is no
countermand.
(c)
Where the act of participation goes beyond encouragement, mere
countermand may not be sufficient to exculpate the accused.
(d)
Where the participation takes the form of encouragement (eg
counsel, command or agreement) a potentially effective countermand will
afford a defence even if no other steps are taken to prevent the crime.
Such countermand may be expressed in words or implied by conduct.
(e)
Withdrawal must be capable of being effective: a withdrawal which
is untimely, uncommunicated, or misunderstood or a countermand which
is not received by all principals will be no defence.’
See too SA Criminal Law and Procedure Vol 1 (3ed, Burchell) at
318-320.
[36] The particular aspect which confronts us here is whether
having said no to the poisoning it was sufficient for appellants 3 and
4 to leave the scene or whether in the circumstances they were
required to undo some of the prior conduct. In White v Ridley (1978)

140 CLR 342, a decision of the High Court of Australia, Gibbs J said
at 350:
‘The further question raised by Archbold is whether the person countermanding
or withdrawing is required, in order to escape liability, to take reasonable steps
to prevent the commission of the crime. Professor Glanville Williams [(Criminal
Law: The General Part] p 385) and Professors Smith and Hogan: Criminal Law,
3rd ed. (1973), p 110, consider that an accused remains liable notwithstanding
his communicated withdrawal unless he takes steps to avert the danger which
he has helped to create. Professor Howard expresses a similar view: Criminal
Law, 3rd ed. (1973), pp 282-283. Professor Glanville Williams cites from the
judgment in Eldredge v United States, [(1932) 62 F (2d) 449, at p 451]: “A
declared intent to withdraw from a conspiracy to dynamite a building is not
enough, if the fuse has been set; he must step on the fuse.” It seems entirely
reasonable to insist that a person who has counselled or procured another to
commit a crime, or has conspired with others to commit a crime, should
accompany his countermand or withdrawal with such action as he can
reasonably take to undo the effect of his previous encouragement or
participation.’
[37] In Beahan’s case, supra, Gubbay CJ held: ‘A reasonable
effect to nullify or frustrate the effect of his contribution is required’.
In Lungile’s case, supra, which was an armed robbery resulting in
death, Olivier JA said at 603g-h:
‘… it is clear that, on whatever view one takes of the matter, there was no
effective disassociation. The first appellant’s mere departure from the scene is a

neutral factor. It is more likely that he fled because he was afraid of being
arrested, or of being injured, or to make good his escape with the stolen money
and goods.’
In R v Becerra and Cooper (1976) 62 Cr App R 212 (CA), B gave C
a knife to use against anyone who might interrupt their burglary.
When someone approached, B said: ‘come on, let’s go’ and went
out through the window. C remained and stabbed the approaching
man to death. A defence of withdrawal failed. Roskill LJ said at 219:
‘On the facts of this case, in the circumstances then prevailing, the knife having
already been used and being contemplated for further use when it was handed
over by Becerra to Cooper for the purpose of avoiding (if necessary) by violent
means the hazards of identification, if Becerra wanted to withdraw at that stage,
he would have to "countermand", to use the word that is used in some of the
cases or "repent" to use another word so used, in some manner vastly different
and vastly more effective than merely to say "Come on, let's go" and go out
through the window.'
It was not specified precisely how much further B would have had to
go, but (as Gubbay CJ observed) physical intervention to prevent
the use of the knife might have been required.
[38] In the subsequent English case of R v Grundy [1977] Criminal
Law Review 543 (CA). G had over a period of weeks furnished
prospective burglars with useful information about the premises to
be burgled. G did not participate and he testified that for the last two

weeks he had tried to stop H from breaking in. The Court of Appeal
held that the defence of withdrawal should have been left to the jury.
In a comment on this case in the Criminal Law Review, and
contrasting Becerra, Professor J C Smith wrote:
‘The present case does not go so far as to require physical intervention to
prevent the commission of the crime. The defence was however that G had
been trying to prevent H from breaking in. It may be that an operative
withdrawal can be more easily effected when it is made at a preparatory stage,
as in this case, than where the crime is in the course of commission, as in
Becerra. When the knife is about to descend, it would seem likely that the only
effective withdrawal would be physical intervention to prevent it reaching its
target.’
See too Smith & Hogan: Criminal Law (8 ed) at pp 158-160.
[39] The aforegoing authorities indicate in my view that on a
practical level the courts of several countries, including South Africa,
proceed from this premise: that the greater the accused’s
participation, and the further the commission of the crime has
progressed, then much more will be required of an accused to
constitute an effective disassociation. 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.

[40] In the present appeal I am satisfied that appellants 3 and 4 did
not do enough. They could not simply walk away, leaving the
deceased tied up and at the mercy of no 2 who, they knew, was
intent on killing her. To effectively disassociate themselves
appellants 3 and 4 had at least to have untied the deceased; and
perhaps more was required of them. I would accordingly confirm
their convictions for murder on the basis of dolus eventualis, which
was relevant to sentence.
[41] It is possible, I think, to arrive at the same result by applying
what was said by Botha JA in S v A en ‘n ander 1993 (1) SACR 600
(A) at 605-6. In relation to a commissio followed by an omissio, it
was held that the ‘Ewels’ principle (Minister van Polisie v Ewels
1975 (3) SA 590 (A)) was part of the civil law regarding
wrongfulness. The same considerations did not necessarily apply to
the criminal law. Botha JA said at 606g-h:
‘In die strafreg moet die ondersoek na die wederregtelikheid van die late op sy
eie bene staan. Dit kan wees dat die beleidsoorwegings wat by hierdie
ondersoek in die strafreg te pas kom, tot 'n ander resultaat sal lei as wat die
geval is in die privaatreg. Dit kan ook wees dat die strafregtelike
aanspreeklikheid van iemand wat ter verbreking van 'n regsplig nalaat om 'n
ander persoon te verhoed om 'n misdaad te pleeg, van 'n ander graad of vorm
kan wees as dié van die dader self. 'n Moontlikheid wat homself hier voordoen,
is aanspreeklikheid as 'n medepligtige, op die grondslag dat die versuim om die

regsplig na te kom die element van bevordering van die misdaad kan uitmaak
wat vir medepligtigheid nodig is.’
[42] On the particular facts of the present appeal I would be
inclined to hold that appellants 3 and 4 acted wrongfully, in the
criminal sense, in departing the scene of the robbery without taking
steps towards preventing the imminent murder of the deceased and
that they did so, reckless as to whether the deceased was
murdered.  However, it is unnecessary to reach a final conclusion on
this alternative reasoning.
[43] I come to the first appellant. In addition to the general
evidence, he pointed out certain places at the homestead to Capt
van Staden. His relevant accompanying explanations (in the order
given rather than in chronological sequence) were:
‘(a)
“By hierdie huis het Sarah ‘n wit vrou met gif vermoor. Ek, Dawid en
Samuel was hier om geld by Sarah te kom haal wat sy uit die kluis uit die
kantoor uigehaal het.”
(b)
“Die twee honde was hier toegesluit. Ons het hier by die huis ingegaan.”
(c)
“Ek en Samuel en Dawid het hier gesit en die bediende het daar gesit en
tee gedrink. Die wit vrou was nie hier nie. Die bediende het, toe sy die
voertuig hoor, ons by die agterdeur uitgelaat sodat ons kan gaan
wegkruip.”
(d)
“Ons is by hierdie hek uit en het by daardie varkhok weggekruip. Sarah
het vir ons die geld in ‘n plastieksak hier by die hek kom gee. Ons is toe

weg na die teerpad. Ons is na Martha, Sarah se suster se stad by Mpeni
gebied Elim. Ek weet nie wat het van die wit vrou geword nie. Dit is al.”’
[44] As can be seen, the appellant admitted theft but exculpated
himself with respect to robbery and murder. On the strength of R v
Valachia and another 1945 AD 826 and S v Cloete 1994 (1) SACR
420 (A) the court accepted that the appellant was entitled to have
the whole of his explanation taken into account, both the favourable
parts and the unfavourable parts. Marais J quoted from the
judgment of Greenberg JA in Valachia at 837:
‘Naturally, the fact that the statement is not made under oath, and is not subject
to cross-examination, detracts very much from the weight to be given to those
portions of the statement favourable to its author as compared with the weight
which would be given to them if he had made them under oath, but he is entitled
to have them taken into consideration, to be accepted or rejected according to
the Court’s view of their cogency.’
[45] If the second appellant had already stolen the money from the
safe, there was no reason for three men to collect it. One man,
probably the first appellant if he did have a relationship with the
second appellant, would have sufficed. It would have been against
their interests for the men to remain at the farm drinking tea and risk
discovery by the deceased. Their presence would have been
contrary to the second appellant’s strict instructions about visitors

and would also have implicated the men in the theft of the money
once the loss was discovered. Besides that, the deceased
possessed the key to the safe. As I have observed earlier, she was
a thick-set middle-aged woman, whereas second appellant is short
and thin. She would have required assistance to overpower the
deceased, assault her severely and attempt to force the poison
down her throat. The inference is plain that the appellant and the
other men went to the farm to overcome the deceased, obtain
possession of the key to the safe and steal the money therefrom.
[46] When the appellant was arrested, along with accused no 5, it
appears to me that he (like appellants 3 and 4) realised the game
was up. He accordingly decided immediately to advance his own
interests by admitting relatively minor guilt but at the same time
exculpating himself in respect of the more serious side of things. In
the absence of evidence from the appellant, the trial court was in my
view justified in rejecting the exculpatory parts of his explanation.
One of course accepts and recognises the appellant’s constitutional
right to silence (s 35(1)(a) and (b)), but the trial court could do no
more than approach the matter on the basis of the evidence before
it. That was sufficient to sustain the conviction for robbery with
aggravation.

[47] Applying S v Nkomo and another 1966 (1) SA 831 (A) the trial
court reasoned further as follows:
‘In hierdie geval het beskuldigde 1 saam met beskuldigde 2 en andere die huis
wat oorledene sou binnekom, binnegegaan. Nie alleen moes hulle verwag het,
soos in Nkomo se saak, dat iemand in die huis sal wees nie, hulle het
inderdaad gewag sodat iemand in die huis inkom. Die persoon wat ingekom het
was toe doodgemaak. ‘n Mens kan alleenlik aflei dat dit gedoen was óf om die
roof te bevorder óf om die identiteit van iemand te beskerm.
In hierdie geval is dit ‘n baie sterk waarskynlikheid dat aangesien beskuldigde 2
aan die oorledene bekend is dat die oorledene doodgemaak is omdat sy
beskuldigde 2 kon uitken. Daar is geen redelike of enige verduideliking van
beskuldigde 1 van wat in daardie huis gebeur het nie.
Na afloop van die roof, volgens sy eie verklaring, het beskuldigde 1 weggegaan
saam met die geld en daarna aan die verdeling deelgeneem.
Van al hierdie feite kan alleenlik afgelei word dat daar ‘n gesamentlike
bedoeling was waarvan beskuldigde 1 deel was om die oorledene te dood óf
om die roof te bevorder óf om die identiteit van iemand te beskerm. Weer eens
verwys ek na Mlambo se saak [R v Mlambo 1957 (4) SA 727 (A)] en die feit dat
beskuldigde 1 nie getuig het nie. As hy verwag dat ons ‘n mindere afleiding
moet maak dan moet hy self getuig.
Ons is dus van mening dat beskuldigde 1 skuldig is aan moord met dolus
directus.’
[48] It will be noted that appellant 1 admitted less than appellants 3
and 4, in particular no 1 did not refer to the tying up of the deceased.
The trial court held it against the appellant that he did not testify,

whereas appellants 3 and 4 did give evidence. That was in my view
a distinction without a difference inasmuch as no’s 3 and 4 persisted
in their alibis and did not testify with regard to the commission of the
crimes. Like no’s 3 and 4, in his extra-curial explanations no 1 did
not admit participation in the murder. The correct approach in my
view was to analyse the appellant’s admissions in the light of the
general evidence in order to see what inferences could properly be
drawn. In other words the approach should have been the same as
was adopted in respect of appellants 3 and 4.
[49] The first appellant did not admit being present when the
deceased was strangled to death. He said: “ek weet nie wat het van
die wit vrou geword nie’. As I have said, there is no evidence that
the men went to the farm armed, or that arms were used. A
distinctive feature of this case is the attempted poisoning. I think it
unlikely that the men knew about that possibility in advance. It
accordingly seems to me not unlikely that no 2 was responsible for
the poisoning, on her own initiative as it were. The first appellant did
not claim to have protested at the poisoning, but the explanations
were less formal than a statement to a magistrate. We know
objectively that the strangulation followed the poisoning. It
accordingly seems reasonably possible that the men, including no 1,
left the scene after the poisoning but before the strangulation. The

appellant was aware of (and overstated) the poisoning. He said: ‘By
hierdie huis het Sarah ‘n wit vrou met gif vermoor.’ He did not claim
to have learned this later. His explanations are open to the
interpretation that he was not present when the deceased was
poisoned but absent evidence from him to that effect, I think the trial
court was justified in inferring, on all the evidence, that he was
present.
[50] Was the deceased trussed up when the poison was
administered and when the men left the farm? In my view she must
have been: first, because restraining the deceased was an inherent
part of the unarmed robbery; second, because it is highly unlikely
that no 2 would have attempted to poison the deceased unless she
was restrained, and third, because the deceased was found after the
event still tied up and it is unlikely that no 2 could have achieved that
on her own. That being the position, it appears to me that the first
appellant’s case does not differ materially from the cases of no’s 3
and 4, and that he too should have been convicted of murder on the
basis of dolus eventualis.
[51] The Sentences
The third and fourth appellants were not granted leave to appeal
against their sentences. It is common cause that the death

sentences on appellants 1 and 2 must be set aside. In the case of
the second appellant, I can see no appropriate alternative to life
imprisonment. She either strangled the deceased to death or was
party to doing so. She either administrated poison to the deceased
or was party to doing so. She abused her significant position of trust
as a member of the household. The poisoning and the murder were
carried out in all probability in an endeavour to avoid her detection
as one of the robbers. At the time of sentence, no 2 was 35 years
old. She had a husband and a child of 9 years. She reached
standard VII at school. She was employed as a domestic worker,
earning a relatively small wage. She was a first offender. I do not
consider that these personal circumstances offer much balance
against the callous and brutal murder of her employer. In my opinion
life imprisonment meets the justice of the case.
[52] The first appellant, at the time of sentence, was 31 years old
and a first offender. He had a wife and a child of 9 years whom he
supported through his work as a builder. He reached standard V at
school. His conviction for murder is now based on dolus eventualis. I
should record that appellants 3 and 4 had relevant previous
convictions and that it was held in their favour that they were not the
leaders of the robbery. The first appellant had no previous
convictions and the evidence does not establish that he was more or

less of a leader than the other two men. In sentencing him I must
bear in mind, for the purposes of balance, the sentences imposed
on no’s 3 and 4, which were effectively 18 and 20 years
respectively.
[53] The first appellant was sentenced to 12 years’ imprisonment
for the robbery. I purpose to leave that sentence intact. For the
murder I would impose 16 years’ imprisonment (being the same as
was imposed on both no’s 3 and 4). I would order the whole of the
robbery sentence to be served concurrently with the murder
sentence thus producing an effective sentence of 16 years. In this
way the first appellant’s status as a first offender is reflected to his
benefit.
[54] The Order
(A)
The appeals of all four appellants against their convictions for
murder and robbery with aggravating circumstances are dismissed,
and those convictions are confirmed.
(B)
The appeal of the first appellant (Daniel Musingadi) against his
sentence on count 1 (the murder) succeeds. The sentence of death
is set aside and replaced by a sentence of 16 years’ imprisonment
to be served concurrently with the sentence (hereby confirmed) of

12 years’ imprisonment on count 2 (the robbery). The effective
sentence is accordingly 16 years’ imprisonment.
(C)
The appeal of the second appellant (Sarah Lambani) against
her sentence on count 1 (the murder) succeeds. The sentence of
death is set aside and replaced by life imprisonment. In law that
sentence is to be served concurrently with the sentence of 12 years’
imprisonment on count 2 (the robbery) which is hereby confirmed.
___________
R G COMRIE
ACTING JUDGE OF APPEAL
CONCUR
FARLAM JA
MTHIYANE JA