TOPIC 15 CHARGES & INDICTMENTSSv GROBLER EN 'N ANDER 1966 (1) SA 507 (A) nah Citation 1966 (1) SA 507 (A) ‘court Appélafdeling Judge Beyers Wn - HR, Rumpff AR en Wessels AR Heard November 16, 1965 Judgment — December 15, 1965 Annotations Link to Case Annotations : Sleutelwoorde Strafproses - Klagtestaat - Onbehoorlike spiitsing van klagte - Wanneer dit plaasvind - Toetse - Toepassing van - Klagte van moord en roof - Beskuldigdes tereg op albei kiagte skuldigbevind - ‘Wet 56 van 1955, art. 314 - Effek, Headnote : Kopnota Eerste appeliant het met 'n pistol in sy hand die kafee van J binnegestap en J se skoondogter bedreig. J se seun het handgemeen geraak met eerste appellant, wat twee skote op hom afgevuur het, die een in sy dy en een teen sy agterkop. J het met 'n haelgeweer uit die woonafdeling gekom en een skoot gevuur op eerste appellant wat gebuk het en sodoende misgesklet Is. Eerste appellant het toe sy pistool teen J se hoof gedruk en hom doodgeskiet. Daarna het hy die geld ult die kontantkas gehaal en weagehardloop. Tweede appellant het bultekant met 'n motor op hom gewag, en, nadat eerste appellant ingekllm het, het hy vinnig met hom weggery. ‘Tweede appellant het geweet dat eerste appellant dle pistool het en dat dit gebruik mag word. Op klagte van moord en roof, het dit geblyk dat albel misdade gepleeg is en hulle is op belde kiagte skuldig bevind. Eerste appellant is op albei klagte ter dood veroordeel. ‘Tweede appellant is veroordee! tot tien jaar gevangenisstraf op die aanklag van roof en tot lewenslange gevangenisstraf op die aanklag van moord, watter vonnisse saamlopend sou wees, Op 'n regsvraag of daar 'n onbehoorilke splitsing van klagte plaasgevind het, Beslis, dat die regsvraag ten gunste van die Stat beantwoord.moet word, aangesien die appellante nie tweemaal aan dieselfde misdaad skuldig bevind of gestraf was nie. Die vraag wanneer daar 'n onbehooriike splitsing van klagte plaasvind en dle effek van artikel 314 van Wet 56 van 1955 volledig bespreek. Flynote : Sleutelwoorde ‘Criminal procedure - Indictment - Improper splitting of charges - When this occurs - Tests - Application of - Charges of murder and robbery - Accused correctly convicted on both charges ~ Act 56 of 1955, sec. 314 - Effect. Headnote : Kopnota First appellant had entered J's café with a pistol in his hand and threatened J's daughter- in-law. J's son had grappled with the first appellant, who had fired’ two shots at him, the one In his thigh and the other at the back of his head. J had come out of the residential quarters with a shot gun and fired one shot at first appellant who ducked and in doing so Was missed. First appellant then pressed his pistol against J's head and shot him dead. ‘Thereafter he had taken the money out of the cash-box and run away..Second appellanthad waited outside for him with a car, and, after first appellant had climbed In, driven him speedily away. Second appellant had known that that first appellant had the pistol and that It might be used. On charges of murder and robbery, it appeared that both offences had been committed and they were convicted on both charges. First appellant was sentenced to death on both charges. Second appellant was sentenced to ten years’ imprisonment on the charge of robbery and to life imprisonment on the charge of murder, such sentences to run concurrently. On a question of law as to whether there had been an Improper splitting of charges, Held, that the question of law should be decided in favour of the State, as the appellants had not been convicted or sentenced twice for the same offence. : The question as to when there Is an Improper splitting of charges and the effect of section 314 of Act 56 of 1955 fully discussed. Case Information Argument op ‘n regsvraag voorbehou in die Witwatersrandse Plaaslike EAfdeling (DE Vos, R., en assessore). Die aard van dle regsvraag blyk uit die ultsprake van RUMPFF, A.R,, en WESSELS, A.R. E. A. Matthis (at the request of the Court), for the appellants: To establish whether or not there has been a splitting two tests are employed. There Is an improper duplication If: (2) The two acts 1966 (4) SA p5ce charged separately were done with one single intent and constituted one continuous transaction. See R v Sabuy/, 1905 T.S. at p. 171; R v Johannes, 1925 T.P.D. at p. 784; Gardiner and Lansdown, South African Criminal Law and Procedure, 6th ed., vol. 1, p. 297; or (b) the evidence Xnecessary to prove the one charge necessarily Involves proof of the other. See R v van der Merwe, 1921 T.P.D. at p. 4; R v Johannes, supra at p. 785. Which test Is to be applied depends on the circumstances of each particular case. See R v Johannes, supra at pp. 786, 789. The tests are not rules of law but useful practical alds which can be employed to determine whether there Is substantially one offence gor not. See Rv Kuzwayo, 1960 (1) SA 340 (AD). In the present case the killing of the deceased and the taking of the money were clearly part and parcel of the same transaction. It was done with the intention of rendering possible the taking of the money from the till, le. It was the means used by the first accused to gain access to the till. See R. Ev. Xowanisa, 1947 (4) SA 399 at p. 400 in fine; Gardiner and Lansdown, supra at p. 295; R v Malako, 1959 (1) SA 569; S v Buthelezi, 1961 (4) SA 376. It cannot be argued that In this case evidence of the kiliing of the deceased need not be led to prove the offence of robbery and that therefore there has been no splitting In terms of the second test, In van der Merwe's case, supra at p. 4, the one offence terminated Bibefore the other began. There the Indecent soliciting took place first. Therefore the prosecution could have led evidence up to @ point and then stopped, proving the one offence without any evidence of the commission of the second offence having been led. This cannot be done here as the killing of the deceased took place prior to the taking of the money, but Esubsequent to any other violence. Otherwise the same argument could be used in such cases as R V Ndlovu, 1962 (1) SA 108, against the proposition that the charges had been improperly split. To constitute the crime of robbery it Is essential that the force should have been used before the articles had been stolen. See R v Ngoyo and Another, 1959 (2) SA 461;Gardiner and Lansdown, supra, vol. 2 at p. 1706; S. Ev. Malinga, 1962 (3) SA 589 at p. 594. If the killing had taken place after the taking the position would have been different. See R v Cain, 1959 (3) SA 376; R v Constance and Another, 1960 (4) SA 630. Sec, 314 of Act 56 of 1955 does not apply because there Is no doubt which offences are constituted by the facts which can be proved. See R v Ingham, 1958 (2) SA at p. 41F to P. 43G; R v Xowanisa, 1947 (4) SA Gat p. 402. Sec. 314 of Act 56 of 1955 Is merely procedural and does not modify the effect of the decisions as to the splitting of charges. See Rv Theron, 1960 (3) SA at p. 377B - E; S v Maqame and Another, 1963 (2) SA 575. The rule against splitting of charges Is a valid one in the light of the cases quoted above. This Court has not expressed a definite view in this regard. See Ex parte Minister of Justice: In re R. §N. Moseme, 1936 AD 52 at p. 57 and p. 59; R v Kuzwayo, 1960 (1) SA at p. 343E ~ H. But the existence of compulsory sentences makes it material whetherthe rule is a valld one or not. Cf.R v Kuzwayo, supraat p. 343F. Sec. 334 ter and quat of Act 56 of 1955, as amended. J. II, Liebenberg, namens die Staat:-The proper enquiry should not be 1966 (1) SA p5G9 whether an Improper splitting of charges took place but whether convictions were duplicated. However, as two charges of robbery (count 5) and murder (count 6) were framed and appellants were convicted on both, the propriety of these charges also becomes relevant to the question to be. considered. It Is submitted that the time has come for Aithis Court to review the decisions of the various Provincial Divisions in regard to the concept ‘splitting of charges’. This Court has not yet been called upon to deal crisply with the question. In two cases, viz. Moseme, 1936 AD 52, and R v Kuzwayo, 1960 (1) SA 344, reference was made to the existence of the rule with some reservations but no final decision was given. Sec. 314 of Act 56 of 1955, replacing sec. 126 Sof Act 31 of 1917 as amended by sec. 19 of Act 39 of 1926, entitles the State to charge any number of offences directly or alternatively, In the event of any uncertainty In regard to which offences will be constituted by the provable facts, Nevertheless the objection to splitting of charges has continued to survive In our law. See R. v. &Steenkamp and Others, 1957 (3) SA 168; Rv Khan and Others, 1949 (4) SA 868; R v Kuzwayo, supra. The case of S v Theron, 1960 (3) SA 337, and S v Magame and ‘Another, 1963 (2) SA 575, are, with respect, not correct in stating that sec. 314 did not affect the principle of splitting of charges. The correct legal enquiry would seem to be, not whether there was a splitting of charges, but whether a éduplication of punishment might arise if a plurality of offences was charged. Sec. 382 of the Code expressly prohibits a duplication of punishment where acts constitute offences under the common law or statutory provisions. It is submitted that some of the cases which decided that sec. 314 (old sec. 126 of Act 31 of 1917) did not affect Ethe rule against splitting of charges might have overlooked sec, 382, which created a guarantee against a miscarrlage of justice, resulting from a duplication of convictions for statutory or ‘common law offences. See R v T., 1939 P.H. H.221; R v Xowanisa, 1947 (4) SA 37; Rv Ingham, 1958 (2) SA 37; S v Magame and Another, 1963 (2) SA 575, Although there ‘seems to be a hiatus in sec. 382 in regard to acts fconstituting more than one offence under the common law, it is submitted that the Court's duty, In ensuring that a duplication of punishment does not take place, is not lessened thereby, It would seem, in any case, that the objection to splitting of charges might not be raised at the commencement of the case, but only when the State evidence Shas been presented. See R v van Zyl, 1949 (2) SA 948; R v Tolken, 1951 (1) P.H. H.51, The Cape Provincial Division, in R v Ingham, 1958 (2) SA 37, reaffirmed its view that sec. 314 did not affect, the rule of improper splitting in the event of certainty in regard to the various #loffences constituted by the provable facts. The tests enunciated by R. v Sabuyi, 1905 T.S. 170, and R v Gordon, 1909 E.D.L. 254, are respectively, (a) whether the offences were committed with a single intent and were part of one continuous transaction ‘or (b) whether the offences differed from one another In their elements and whether the same evidence was necessary to prove both or ail offences, i.e. whether the criminal ‘conduct constituted one offence in substance, In R v Tau, 1924 7.P.D. 150, the Court held that both tests or one or the other 1966 (1) SA p510 might be applied, depending on the circumstances of each particular case. See also R V Johannes, 1925 7.P.D. 782, and R v Fisher, 1928 T.P.D. 339. In R v Seromele, 1928 7.P.D. 365, the Court went further dland held that both tests should be applied and, If the facts did not stand both tests, then an undue splitting had taken place. If the objection can only be raised after all or some of the evidence has been led, then the above-mentioned tests require revision, irrespective of the effect of sec. 314, The correct test should be simply, whether the offences have different elements or are the same ‘in substance. See Moseme's case, supra. The tests of ‘single intent’ and ‘same evidence’ slare not satisfactory when applied to such a type of case as S v Xoswa, 1964 (2) SA 459, The reason for the creation of the rule as.stated in R v Marinus, 5 S.C, 349, has largely fallen away with the passage of time. Whatever criticisms one can levelagainst the two tests It is clear that they are merely useful practical guides to be used in determining whether one offence ‘in substance’ has been committed. See S v Shelembe, 1955 (4) SA 412; R v Kuzwayo, 1960 (1) SA 344;Searie v Director of Hospital Services, 1961 (4) SA 222. Dictates of common sense and fairness of the Court must be deciding factors. See S v Shelembe, supra; Sv Katz, 1959 (3) SA 422; Rv Kuzwayo, supra; 6\R v Koekemoer, 1956 (2) SA 140; R v Sibande, 1956 (4) SA 23; Rv ‘Mothlogdwa, 1950 (2) SA 71. In the present case the State was entitled to charge murder and robbery as separate offences, in view of the importance of the element of violence, and whether It preceded or succeeded the taking of the property, See. R v Shelembe, supra; S. v. EMalinga, 1962 (3) SA 589; S v Ngoyo and Another, 1959 (2) SA 461; Searle's case, supra. The cases of R v Cain, 1959 (3) SA 376 and R v Constance and Another, 1960 (4) SA 634, are good illustrations of the presence of aggravating Circumstances in relation to the crime of robbery. The sudden appearance of the deceased on the scene Interrupted éthe designs of appellant who was then in the act of overcoming the resistance of the complainant, Manuel Vieira, in order to obtain his money. The shooting at the appellant by the deceased must be construed as an act of interruption in the chain of events and as the coming into being of a different situation. ‘The consequent killing of deceased, although done substantially at the same time and in tthe course of the Girobbery, was, therefore, a separate and distinct offence, committed with a different intent and motive, namely. to deal with the sudden and unexpected emergency and eliminate the new threat. See R v Shelembe, supra. The killing was an act which differed materially from the elements of robbery and cannot be said to be the same offence in substance. Alternatively, if a broad view could be taken of the evidence and It could be sald that the killing of deceased preceded the taking of the money and was co-extensive with the violence applied to the complainant Manuel, it is submitted that justice will be met by regarding the killing as a pre-requisite to the robbery and consequently an aggravating circumstance ‘present thereat’ in terms of the definition of aggravating circumstances, in sec. 1 of Act 56 of 1955, In such event the sentences imposed on appellants will not be affected. Matthis, in reply, 1996 (1) SA p511 RUMPFF AR Cur, adv. vult. Postea (Desember 15). Judgment RUMPFF, A.R.: Die twee appellante het saam met 'n derde persoon In die KAfdeling Witwatersrand verskyn op ses klagtes: twee van diefstal, drle van roof en een van moord. Klagtes 5 (roof) en 6 (moord) het soos volg gelees: ‘5. Deurdat die beskuidigdes op of omtrent 27 Mei 1964 en te of naby Johannesburg In die distrik Johannesburg vir Manuel Conzales Vieira en Mary Vilra wederregtellk aangerand het, en toe en @dser met mag en geweld van ee oe hulle besit R6O In kontant geneem het, hulle elendom of in hulle wettige besit en hulle 6. Deurdat op of omtrent 27 Mel 1964 en te of naby Johannesburg in die distrik Johannesburg die beskuldigdes ‘wederregtelik en kweadwitighk vir Jose Gonzaies Vieira, 'n Blankemen, doodgemaek en vermoor het Grobler Is op al die klagtes behalwe klag 3 skuldig bevind en le Grange op klagtes 1, 2 en 5 en op klagte 6 as medepligtige na die gebeurtenls. Grobler Is ter dood veroordeel op klag 5 en op klag 6. Le Grange Is veroordeel tot tien jaar gevangenisstraf op klag 5 en tot lewenslange gevangenisstraf op klag 6. Dle voorbehoue regsvraag wat beredeneer Is, het die geldigheld van die skuldigbevinding op belde kiagtes 5 en 6 behels, Namens die twee Slappellante is aangevoer dat weens die ard van die gebeure daar net een strafbare felt begaan is, naamllk roof. Die afgelegde getulenis toon dat Grobler met 'n pistool In sy hande dle kafee van Jose Vieira binnegestap het en Mary Vielra bedreig het. Manuel, dle seun van Jose, het handgemeen geraak met Grobler, wat twee skote op Manuel afgevuur het, Edie een In sy dy en een teen sy agterkop. Jose het met 'n haelgeweer uit die woonafdeling gekom en een skoot gevuur op Grobler wat gebuk het en sodoende misgeskiet is. Grobler het sy pistool teen Jose se hoof gedruk en hom doodgesklet. Daarna het hy die geld uit die kontantkas gehaal en weggehardloop.Sv BENJAMIN EN 'N ANDER 1980 (1) SA 950 (A) 1980 (1) SA p950 ‘Citation 1980 (1) SA 950 (A) court Appélafdeling Judge Trollip AR, Miller AR en Joubert AR, Heard November 2, 1979 Judgment —_ November 29, 1979 Annotations Link to Case Annotations a Flynote : Sleutelwoorde ‘*Strafreg - Poging tot moord - Aanrandingshandeling 'n element - Is 'n ‘species van aanranding met die opset om te vermoor. ‘Strafreg - Roof - Geweldpleging 'n element - Is 'n vorm van aanranding wat gepaard met diefstal gaan. ‘Strafproses - Klagstaat - Splitsing van klagtes - Wat ultmaak - Klagtes van Poging tot moord en roof - Klaer met vuurwapen geskiet - In belde klagtes is aanrandingshandeling 'n element - Kan. alleen op een van kiagtes skuldig bevind word. Headnote : Kopnota Poging tot moord kan wel voorkom sonder dat 'n aanrandingshandeling 'n element daarvan uit maak. Dog in dle gevalle waar 'n aanrandingshandeling wel 'n element van poging tot moord uitmaak, het die wet eintlik te doen met poging tot moord as ‘n ‘species van die misdaad aanranding, ni aanranding met die opset om te vermoor. Roof met geweldpleging as element, en nie bloot 'n drelgement van geweldpleging nie, Is ‘n specles of verskyningsvorm van dle misdaad aanranding wat gepaard met diefstal gean. Die twee appellante, broers, Is aangekla, eerstens, aan poging tot moord deurdat hulle gepoog het om S te dood deur hom met 'n vuurwapen te sklet en, tweedens, roof met verswarende omstandighede deurdat hulle aan S geweld aangedoen het en hom gedrelg en laat glo dat geweld hom aangedoen sou word deur hom met 'n vuurwapen te skiet en hom met genoemde vuurwapen gedrelg het met dle opset om geld wat onder S se beheer was te steel, Hulle Is aan belde aanklagte skuldig bevind en aparte vonnisse Is op belde klagte opgelé. In hoér beroep het die Hof na ontleding van die getuienis bevind dat belde klagte 'n skuldigbevinding aan ‘n aanrandingshandeling Inslult, dws dle sklet van S met ‘n. vuurwapen, Besils, gevolglik, dat dle poging tot moord en roof meegebring het dat dle appellante ‘twee maal skuldig bevind Is aan dieselfde aanrandingshandeling, ni die skiet van S met ‘n vuurwapen. Besiis, dus, dat die skuldigbevinding aan poging tot moord tersyde gestel moes word en dat dle vonnisse van elk een verander moes word. Flynote : Sleutelwoorde Soe law - Attempted murder - Act of assault an element - Is a species of assault with intent to murder,Criminal law - Robbery - Use of force an element - Is a form of assault which Is coupled with theft. Criminal procedure - Indictment - Splitting of charges - What constitutes - Charges of attempted murder and robbery - Complainant shot with a firearm - In both charges the act of assault an ‘element - Can only be convicted on one of the charges. Headnote : Kopnota Attempted murder can Indeed occur without an act of assault constituting an element thereof. But In the cases where an act of assault does indeed constitute an element of attempted murder, the law actually has to do with attempted murder as a species of the offence of assault, le assault with the Intent to murder. Robbery with the use of force as an element and not merely a threat to use force is a species or form of the offence of assault which Is coupled with theft. The two appellants who were brothers had been charged, firstly, with attempted murder in that they had attempted to kill S by means of shooting him with a firearm and, secondly, robbery with aggravated circumstances In that they had used violence on S and had threatened him and had led him to believe that force would be used in that they had shot him with a firearm and had threatened him with such firearm with Intent to steal the money in the custody of S. They were convicted and separate sentences on each count were imposed. In an appeal the Court on an analysis of the evidence found that both charges had Included a conviction of an act of assault, ie the shooting of S with a firearm. 2980 (1) SA p95z Held, accordingly, that the attempted murder and robbery had resulted In the appellants being twice convicted of the same act of assault, ie the shooting of S with a firearm, Held, therefore, that the convictions of attempted murder had to be set aside and that the sentences on each should be altered. Case Information Appel teen skuldigbevindings en vonnisse opgelé In die Kaapse Provinslale Afdeling (BAKER R en assessore), Feite wat nie van belang Is nle Is uit die ultspraak van JOUBERT AR weggelaat. JM Silke namens die eerste appellant op versoek van die Hof: The trial Judge erred In finding appellant gullty of attempted murder. There has been an unjustifiable splitting of charges, le robbery and attempted murder, because (a) the appellant has Indeed been Punished twice for the same crime; (b) although there are two acts which could make ‘out a separate offence, there was only a single Intent and both acts were necessary to realise that Intent, thus there Is only one offence; or (c) the evidence which was Necessary to prove the attempted murder charge also proves the robbery with aggravating circumstances charge and therefore there is only one offence; (d) the facts of this case must be distingulshed from those of S v Prins 1977 (3) SA 807;S v Grobler 1966 (1) SA 507; (e) the shot fired at Solomons was part-and-parcel of the Sirobbery and was executed as part of the robbery; (f) Solomons was shot in the course of the robbery; (g) the aggravating circumstances being the pointing of the firearm and the shooting of Solomons. Once these acts constitute aggravating circumstances, It would be an unjustifiable duplication of convictions to find the appellant also gullty of attempted murder. See R v Cain 1959 (3) SA 376; (h) the use of violence led to only Eone result, the provision of an opportunity for the appellant to remove the ‘money; (I) the Court must either find, on the facts of this case, that the appellant Is gullty of robbery with aggravating circumstances alone, or is gullty of robbery alone and attempted murder. Further on the sentences. WJ Louw namens die tweede appellant op versoek van die Hof: Die #iskuldigbevinding ‘aan poging tot moord Is regtens ongegrond aangesien sodanige bevinding saam met die skuldigbevinding van roof met verswarende omstandighede in die onderhawige geval neerkom op 'n duplisering van skuldigbevindings. Die onderhawige is 'n geval waarin die reél teen splitsing van aanklagtes (duplisering van skuldigbevindings) van toepassing kan wees aangesien appellant in dieselfde verhoor aangekla Is Gvan meer as een aanklag wat voortsprult ult 'n serie handelinge of "transaksle". Kyk Ex parte Minister of Justice: In re R v Mosene 1936 AD te 57. Twee praktiese hulpmiddels word veral deur ons Howe gebruik ten einde vas te stel of daar 'n onbehoorlike splitsing van aanklagte‘Sv WHITEHEAD AND OTHERS 2008 (1) SACR 431 (SCA) 2008 (1) SACR pasa Citation 2008 (1) SACR 431 (SCA) Case No 197/07 Court Supreme Court of Appeal Judge Farlam JA, Navsa JA, Van Heerden JA, Mlambo JA and Combrinck JA Heard November 1, 2008 Judgment — November 30, 2008 Counsel BC Bredenkamp SC for the appellants. JJ Cloete for the respondent. Annotations Link to Case Annotations Flynote : Sleutelwoorde Indictment and charge - Splitting of charges - Duplication of convictions ~ No @infallible formula to determine whether or not duplication of convictions occurring ~ Various tests formulated by courts not rules of law, and not exhaustive - Simply useful practical guidelines - If tests failing to provide satisfactory answer, matter to be left to common sense, wisdom, experience and sense of falmess of court. Indictment and charge - Splitting of charges - Duplication of convictions - Multiple accused charged with public violence and culpable homicide - 'Evidence test’ enquiring whether evidence necessary to establish commission of one offence also proving commission of another offence - State often able to prove crime of publlc violence without reference to negligent or other killing of any person - Opposite also true: offence of culpable Shomicide capable of proof independent of acts of public violence - State accordingly at liberty to prove both offences, Indictment and charge - Splitting of charges - Duplication of convictions - Multiple accused charged with public violence and culpable homicide - ‘Intention test’ - Where Person committing several acts, each of which gloffence on its own, but which constituting continuous transaction carried out with single Intent, his or her conduct constituting only single offence - In casu group Intent on forcibly disturbing public peace - If in so doing they had committed acts separate from what had been intended, such as the negligent killing of deceased, clearly not only permissible, but also eminently falr and just, that they be held liable on that basis. Headnote : Kopnota ‘The appellants were convicted in a regional court of public violence and culpable homicide and, In the case of the seventh appellant, of assault with intent to do grievous bodily harm. They were all sentenced to five years’ imprisonment on each of thecharges, of which two years suspended, giving an effective sentence of elght years, The seventh appellant recelved an & 2008 (1) SACR pé32 additional two years on the assault count. The charges arose from an incident in which group of men attacked striking municipal workers In a rural town; In the course of the attack one of the workers was assaulted with a blunt instrument and later died of his Injuries. All seven appellants appealed against thelr convictions and sentences for culpable homicide, and against their sentences for public violence. The seventh appellant appealed élagainst his sentence for assault with intent to do grievous bodily harm. During the hearing of the appeal the court raised the question of whether or not the guilty verdicts on the counts of public violence and culpable homicide constituted a duplication of convictions. Held (per Navsa JA and Van Heerden JA; Mlambo JA concurring), that there was no infallible formula to determine whether or not there had been a €duplication of convictions. The various tests formulated by the courts were not rules of law, and nor were they exhaustive, They were simply useful practical guldelines and, if they failed to provide a satisfactory answer, the matter was correctly left to the common sense, wisdom, experience and sense of falrness of the court. (Paragraphs [34] and [35] at 443d - f.) Held, further, that In contesting multiple convictions It was often submitted that Sithey were premised on the same set of facts. This was the so-called ‘evidence test’, which enquired whether the evidence necessary to establish the commission of one offence involved proving the commission of another offence. Regarding the present matter, the State would often be able to prove the crime of public violence without any reference whatsoever to the negligent or other killing of any person. The opposite was also true - the Eoffence of culpable homicide was capable of proof Independent of acts of public violence. The evidence of the general disturbance caused by the assaliants to the public order would be sufficient to secure a conviction on the public violence charge, and the State was accordingly at liberty to continue to prove the offence of culpable homicide. (Paragraphs [39] - [41] at 4c - 4454.) Held, further, that the courts also sometimes applied the so-called ‘intention test’. In terms of this test, if a person committed several acts, each of which could be an offence on Its own, but which constituted a continuous transaction carried out with a single Intent, his or her conduct would constitute only a single offence. However, It could hardly be sald that a group of people had a common Intention to commit culpable homicide, since the fault element Gof this offence lay In negligence. In casu the group had been Intent on committing acts of sufficiently serious dimensions and, thereby, forcibly to disturb the public peace. If in so doing they had committed acts separate from what had been Intended - such as the negligent killing of the deceased - It was clearly not only permissible, but also eminently fair and just, that they be held llable on that basis. Anything less would frustrate the iipubiic Interest and the rule of law. For these reasons the conviction on the charge of culpable homicide did not amount to a duplication of convictions and must therefore be confirmed. (Paragraphs [42] - [47] at 445b - 446a.) Held, further, regarding sentence, that the court a quo had recorded that it had seriously considered giving notice of the possibility of an Increase In sentence, but that it had decided against doing so because of the lengthy iidelay in finalising the trial. In this regard the appellants had been fortunate, and there was accordingly no reason to interfere with the sentences. (Paragraphs [48] and [49] at 446b and 446e.) Held (in a dissenting judgment per Combrinck JA; Farlam JA concurring), that there had been a duplication of convictions and that the appellants ought not to have been convicted on the count of culpable homicide. Appeal jdismissed. COMBRINCK JA Cases Considered Annotations: 4 Reported cases 2008 (2) SACR p433‘Magmoed v Janse van Rensburg and Others 1993 (1) SACR 67 (A) (1993 (1) SA 777): referred to Rv Golisili 1928 EDL 115: referred to Rv Kuzwayo 1960 (1) SA 340 (A): referred to 6 Rv Ntsukumbini 1929 EDL 218: referred to Rv Van der Merwe 1921 TPD 1: dictum at 5 applied Sv Christie 1982 (1) SA 464 (A): referred to S'v Gaseb and Others 2001 (1) SACR 438 (NmS): compared Sv Grobler en 'n Ander 1966 (1) SA 507 (A): dictum at 523F - H applied Sv Mgedezi and Others 1989 (1) SA 687 (A): referred to & Sv Moloto 1982 (1) SA 844 (A): referred to S vN 1979 (3) SA 308 (A): referred to Sv Nkwenja en 'n Ander 1985 (2) SA 560 (A): dictum at 571H - 3 applied S v Prins en 'n Ander 1977 (3) SA 807 (A): referred to Sv Thenkwa en ‘n Ander 1970 (3) SA 529 (A): referred to. 8 Appeal against a decision of the Northern Cape Division (Kgomo JP). The facts and Issues appear from the judgment of Navsa JA and Van Heerden JA, In which Mlambo JA concurred. Combrinck JA delivered a partially dissenting judgment in which Farlam JA concurred. & BC Bredenkamp SC for the appellants. JJ Cloete for the respondent, Cur adv vult. Postea (November 30). @ Judgment Combrinck JA: [1] On 15 August 1995 the Municipal and Regional Services Council workers of Kuruman went on strike and on the 30th and 3ist of that month they decided to demonstrate to highlight thelr grievances. To this end they marched through the streets of Kuruman, chanting and waving placards. In the course of the march they emptied rubbish bins and threw the trash in the streets. The following day they again staged a march through the town. Their numbers were estimated variously to be between 60 and 200. They again started trashing the streets but after the arrest of five of fitheir numbers they desisted and the demonstration continued peacefully. They halted at the tax! rank which is in the middle of the town and sat down on a grassy area where they were addressed by their leader. The next moment a posse of white men armed with pickhandles and sjamboks came running down the street and without warning set upon ithe seated workers and beat them indiscriminately with thelr weapons. The workers fled in all directions pursued by thelr attackers, They (the attackers) then proceeded to smash cars belonging to blacks and attack other black people who had nothing to do with the striking workers. After the attack at least nine people remained lying on the grass with } 2008 (1) SACR pa34 COMBRINCK JA Avarious Injuries. Mr Garoetelwe Adam Brown (the deceased), a municipal worker, was found next to a fence close to the grassy area unconscious with a wound to his head, He was taken to hospital where he subsequently died. The cause of death was an Injury to the head caused by a blunt Instrument. #[2] The seven appellants and one other, Louls George Rademeyer, were as a consequence of these events charged In the regional court with public violence (count 1), culpable homicide (count 2), assault with intent to do grievous bodily harm (count 3) and malicious damage to property (count 4). They were convicted on counts 1 and 2 and the seventh appellant wes in addition convicted of assault with Intent to do grievous bodily harm. The other appellants were acquitted on count 3 and all the appellants on count 4 on the basis that these offences formed part of the offence of public violence and it would lead to a multiplicity of convictions (previously known as splitting of charges) If they were to be found gullty on these charges. The assault of which the seventh dlappellant was convicted related to events which took place later in the day ‘and were unconnected with the main assault on the striking workers, The appellantswere sentenced on counts 1 and 2 to five years on each, of which two years of the total was suspended. Thus an effective eight years' imprisonment. The seventh appellant was sentenced to an additional two years for the separate assault. [3] The appellants appealed unsuccessfully to the High Court, Kimberley, against the convictions and sentences. Rademeyer absconded and is a fugitive from justice. Leave to appeal to this court was refused by the High Court but on application this court granted the appellants: 2. Leave to appeal against thelr convictions and sentences on the count of Eculpable homicide; and against thelr sentences on the count of public violence. The seventh applicant was granted leave to appeal against the sentence Imposed on the count of assault with intent to do grievous bodily harm. Leave to appeal against the conviction of public violence was not sought. @In issue before us is therefore (i) the propriety of the conviction of culpable homicide; (if) the sentence in respect of that count; (ili) the correctness of the sentence on the count of public violence; and (Iv) the sentence Imposed on the seventh appellant in respect of the count of assault with intent to do grievous bodlly harm. 41[4] I deal first with the question whether culpable homicide was proved. There was only one eyewitness to the actual assault on the deceased and that was Mr Westley Mabilo. He was not one of the demonstrators but was in the vicinity when they came marching down the street. He, out of curlosity, joined them on the grassy area to hear what the speaker had to ijsay. He witnessed the group of white men clad in khaki arriving with pickhandles and sjamboks approaching the seated workers and indiscriminately assaulting them. He and others fled in the direction of the station. He ran up against a wire ferice where he fell and was trampled underfoot by the fleeing demonstrators, People fell on top of him and when he managed to extricate himself, he noticed a person lying nearby. J This person had previously been lying on top of him. It is common cause 2008 (1) SACR pass COMBRINCK JA ‘that this was the deceased. He then witnessed a man with what he iidescribed as a ‘klerle' with a snake painted on it striking the deceased on the head, causing an open wound. This man he said was part of the group of white men who had launched the attack at the grassy area, He also observed a uniformed policeman striking the deceased on the back with a rifle, Subsequently he assisted others in placing the deceased, who #)was unconscious, in a private vehicle which then conveyed him to hospital, The evidence of this witness was uncontroverted, the appellants having chosen not to testify. The defence did not seek to impugn his testimony, [5] Counsel for appellants argued that the trial court and the court a quo had ignored this evidence. The evidence demonstrates, so it was ¢submitted, that the policeman may have caused the death of the deceased, that he had acted independently, alternatively, he and the man with the stick with the snake on had acted independently of the appellants, There was therefore no causal connection between the deeds of the appellants and the death of the deceased. The State, so it was Slargued, had failed to prove any negligence on the part of the appellants In that a reasonable man in their position would not have foreseen that an unknown person and a policeman would assault and kill the deceased, With reliance on S v Thenkwa en 'n Ander 1970 (3) SA 529 (A) counsel submitted that the doctrine of common purpose cannot be applied in cases of culpable homicide. In the alternative, insofar as the doctrine has ebeen found to be applicable In cases Involving culpable homicide, It was argued that if one had regard to the evidence relating to the part each appellant played in the general assault, It cannot be found that the requirement for culpability on the basis of common purpose as laid down in S v Mgedezi and Others 1989 (1) SA 687 (A) had been proved by the State. [6] The fundamental difficulty which the appellants face is that they chose not to appeal against the conviction of public violence. The basis of the conviction of that crime was that the appellants had acted in concert and In furtherance of a common purpose when they set upon the Gworkers, assaulted them and infllcted damage to the motor vehicles.‘The appellants have In effect accepted this finding. They now strive to persuade us that, on the facts, the assault upon the deceased was an Isolated incident, unconnected to the general assault, and committed by persons outside the group for whose actions they cannot be held responsible. This argument Is not supported by the evidence. ‘The Hwitness, Mabilo, made it clear that the man with the stick was part of the attacking group. It was he who struck the deceased on the head more than once. He only saw the policeman strike the deceased once on his back. It is furthermore clear from his evidence that the attack on the deceased was not separated In time from the general attack. It was on the flevidence part and parcel of the attack and pursuit of the workers, carrled out by a member of the attacking group. [7] The reliance on Sv Thenkwa (supra) for the proposition that the doctrine of common purpose Is not applicable to culpable homicide Is misplaced. In that case the very basis for finding that the two accused § COMBRINCK JA ‘Awere guilty of culpable homicide was that they had acted In concert. What the court said must be guarded against, is convicting a person of murder or culpable homicide merely because he took part in, or associated himself with an assault on the victim. It must be proved that each participant in the assault had the required mens rea. Botha JA at #)534G spelt it out thus: Die skuld van elkeen moet volgens sy ele handeling en sy ele gesindheld bepaal word. Waar meerdere persone van strafbare mansiag aangekla word, is blote deeIname aan die ‘onwettige daad wat dle dood veroorsaak het, dus onvoldoende om al die deelnemers vir die doodslag strafregtelik aanspreeklik te hou. Dit kan alleen voldoende wees Indien daar by die deeinemers ook éskuld was met betrekking tot die doodsiag self. Aan die skuldverelste vir strafbare mansiag word voldoen indien 'n redelike persoon in die plek van die deeinemer aan die onwettige daad, wat die dood veroorsaak het, sou besef het dat 'n emstige besering in dle ultvoering van die daad veroorsaak sou kon word, en dat hy sou voorsien het dat die besering moontlik lewensgevaarlik sou kon wees. ojThis is precisely what the trial court found when determining fault on the part of each appellant, The magistrate sald the following: Gesien in die lig van die gevaarlike ard van die wapens wat gebrulk was, moes leder en elke een die redelike moontlikheld voorsien het dat die strekking van hulle gesamentlike opset dié dood van die oorledene tot gevolg kan hé. This court has confirmed that the doctrine of common purpose is applicable to culpable homicide. See S v Nkwenja en 'n Ander 1985 (2) SA 560 (A) at 573B; Magmoed v Janse van Rensburg and Others 1993 (1) SACR 67 (A) (1993 (1) SA 777) at 78b - d. The following passage from fthe former judgment (at 573B - D) also disposes of the argument that no causal connection between the individual acts of the appellants and the death of the deceased was proved: Strafbare manslag is die wederregtelike, nalatige doodslag van 'n ander en behels in die algemeen dle verelste van 'n kousale verband tussen 'n handeling van die beskuldigde en die dood. In die onderhawige geval is dit Slonseker water appellant die dodellke geweld toegepas het en sou dit moeilik wees om spesifiek aan die een of die ander van die appellante 'n handeling toe te skryf wat conditio sine qua non van die dood was. Maar In ons praktyk word In gevalle soos die onderhawige, waar daar voorafbeplanning was en dan deelneming aan verwesenilking van die gesamentlike oogmerk, nle altyd streng aan die vereiste van kousalitelt (sine qua non) digekleef ten einde die een deelnemer strafregtelik aanspreeklik te stel vir 'n gevolg van die handeling van 'n ander deelnemer nie. Sonder om die julste grondslag van hierdie aanspreeklikheld ult te stip wil dit my voorkom dat albel appellante wel aan strafbare mansiag skuldig Is (vgl die benadering in S v Ngobozi1972 (3) SA 476 (A) op 478C - F). [8] Apart from the fact as mentioned earlier, that the appellants have in effect conceded that they acted in concert by not attacking the conviction of public violence, the submission that the acts of each appellant must be measured against the criteria laid down In Mgedezi's case Is without merit. As argued by counsel for the State, this Is not a 2008 (1) SACR pa36‘joining In’ type of case. Here the evidence makes It abundantly clear that the group of which appellants were part had planned the attack in advance and thelr 2008 (1) SACR pa37 participation in the attack was the execution of the prior conspiracy. The Aigroup, according to the undisputed evidence, assembled at an obviously predetermined spot near the town library. They were addressed by a person who In all probability was the leader. A bakkie arrived carrying pickhandles which were handed out to the group. They then set off followed by an ambulance which must have been arranged in advance. siThey attacked their target Immediately without the slightest provocation or warning. They were not deterred by a considerable police presence, Tear gas was used and at least one of the group had a two-way radio over which an order later came to the effect that the group had to withdraw. All conclusive proof of a preplanned attack, The State proved that each appellant was present as part of the group and some were seen assaulting the demonstrators and others performing acts consistent with an association with and furtherance of a common purpose. Both the trial court and the court a quo meticulously analysed the evidence relating to each appellant. The findings were not attacked by the appellants, Appellants’ counsel contended that.on the evidence none of the appellants struck the demonstrators on the head. All blows were aimed at the body. From this jhe said can be Inferred that the members of the group consciously avoided any life-threatening blows. A reasonable man in their position, so the submission continued, would not have foreseen that one of their members would strike a worker on the head. There Is no substance In this argument. A number of witnesses testified to either recelving blows gto the head or seeing others being struck on the head. One, Mr Joseph Kipoledi, was rendered unconscious by a blow to the head and had to be treated at hospital. Major Scholtz, the senlor policeman on the scene, testifled to the fact that nine people were left lying on the grass after the attack and he saw blood on their heads and faces. The magistrate In his Ejudgment on sentence recorded that 22 people were injured, [9] In summary, therefore, I conclude that the regional magistrate correctly found that the appellants were guilty of culpable homicide and that the attack on the judgment is without merit. [10] During the course of argument counsel were requested to address @us on the question of a possible duplication of convictions, On the suggestion of the presiding judge counsel filed additional heads of argument. Defence counsel contends that, because of the manner in which the appellants were charged there has indeed been a duplication of convictions. Counsel for the State argued to the contrary. As stated at the commencement of the judgment, count 1 was that the appellants were gullty of public violence, count 2, that they were guilty of culpable homicide. Count 1, (freely translated from the Afrikaans), reads in summary as follows: ‘That the accused are guilty of public violence in that they on 31 August 1995 at Kuruman unlawfully and with common intent to disturb the fpublic peace by violent means and to Infringe the rights of other persons, committed acts which assumed serious dimensions in that they: (a) armed with pickhandles, sticks and sjamboks instilled fear in another group that they would be subject to violence in order to disperse; (b) assaulted the said other group with intent to cause grievous bodlly harm; 3 (2008 (1) SACR pé3d ® (©) unlawfully and negligently killed Garoetelwe Adam Brown by hitting him with pickhandles, sticks, sjamboks and other objects; (d) maliciously damaged motor vehicles, the property of (three named persons). Count 2 reads: ‘The accused are guilty of culpable homicide In that on 31 August 1995 at #Kuruman they wrongfully and negligently killed Garoetelwe Adam Brown.The only difference In the wording of that part of count 1 relating to culpable homicide with that In count 2 is the description of how death was caused. In essence the allegations are identical. Counsel for the Eappellants contends that this is a textbook case of duplication of charges which has led to a duplication of convictions. I consider that there is merit in this argument, No doubt, in order to emphasise that this was an aggravated case of public violence, the State Included as part of what It intended proving against the appellants, the fact that a human life had Bibeen taken. In proving that part of count 1 (as It successfully did) the State on the same facts proved count 2. Put differently, proof of culpable homicide as part of the offence of public violence of Recessity proved the allegations In count 2. Nowhere in his judgment does the ‘magistrate Indicate that in convicting the appellants on the main count he did not take into account or have regard to the evidence relating to the wrongful ékilling of the deceased. One passage In his judgment, when dealing with count 1, demonstrates that he did have regard to the fact that the deceased fad been killed. He sald: Die getulenis toon aan dat slegs die swart mense beseer en een selfs gedood Is en geeneen van die wit groep is beseer nie, derhalwe is dit duidelik dat die swart groep hulle nie verweer het, selfs met die wapens tot hulle beskikking énie. He concluded his judgment with a finding of gullty on counts 1 and 2, thereby indicating that they were convicted as charged. It is relevant to note that In terms of s 259 of the Criminal Procedure Act 51 of 1977, public violence is a competent verdict on a charge of culpable homicide. &Notionally, if In the present case the State was unable on count 2 to prove the cause of death, appellants could have been convicted of public violence. But then they would have been found guilty of public violence on count 1 too. It can never be suggested that this would be justified. In two early reported decisions it was held in analogous circumstances that lit is Improper to convict an accused of two offences. 1 refer in this regard to R v Golisili 1928 EDL 115; and R v Ntsukumbini 1929 EDL 218. In both cases the accused was charged with ‘fighting’ (also known as “faction fighting’) in contravention of a proclamation and culpable homicide - two separate counts. It was held to be improper to convict ‘jaccused on both counts where the evidence was that the unlawful killing took place in the course of the ‘fighting’. In his heads of argument counsel for the State does not answer the assertion that there is @ duplication of charges in the charge-sheet. He maintains that in terms of s 83 of the Criminal Procedure Act the State may put as many charges in a charge-sheet as could be proved by the facts. This, fs undoubtedly so, jjbut it does not follow that the court Is entitled to convict on duplicated 2008 (1) SAC paso charges (see R v Golisil/ and R v Ntsukumbin! supra). State Is entitled to Kduplicate charges. The remainder of the State's argument deals with the tests adopted by courts over the years In relation to the Issue of multiplicity of convictions. As pointed out earlier, where on the charge-sheet there is a duplication, the tests referred to are Irrelevant, It is so, as contended by counsel for the State, that this Issue was not ralsed by the defence in the regional court, the court a quo and for that matter in this court until counsel's attention was drawn to It. Nevertheless It is a fundamental principle of our law that an accused should not be convicted and sentenced in respect of two crimes when he or she has committed only one offence. It forms part of the right to a fair trial which is enshrined In the Constitution. In my view, therefore, the appellants Eshould not have been convicted on count 2. The magistrate should have dealt with this count in the Same manner as he dealt with counts 3 and 4. I would therefore allow the appeal against conviction and sentence In respect of count 2. [11] | turn now to deal with the issue of sentence. It Is not clear from the Smagistrate's Judgment whether, when determining an appropriate sentence in respect of the public violence count, he took into account the fact of the negligent killing of the deceased, The Indications are that he did not as he imposed the same period of imprisonment in respect of both counts 1 and 2. Whether one sentences the appellants on the basis éthat they are guilty of public violence, excluding the culpable homicide, and guilty of a separate count of culpable homicide, or whether one sentences them on the basis of a conviction of public violence, including the culpable homicide (with noadditional count of culpable homicide), the sentence should be the same. Having set aside the sentence on count 2, I would, after due notice of the Intention to do so, and ‘subject fito what may be advanced by the partles, consider increasing the sentence on count 1 to the effective eight years Imposed by the magistrate, [12] Counsel was unable to point out any misdirection on the part of the magistrate in his judgment on sentence. He was constrained to limit his submission to one that the sentences cumulatively were shockingly inappropriate, regard being had to the circumstances. The magistrate gave a very comprehensive judgment on sentence in which he recorded all the factors he had taken Into account in considering what an appropriate sentence should be, He recorded and gave due weight to the personal circumstances of the appellants. He took into account the filnordinate length of time It took to commence and conclude the trial and the effect It must have had on the appellants’ lives. He had regard to the seriousness of the offences and the circumstances under which they had been committed, Lastly he discussed and gave due weight to the interests of the community. It was a fair and balanced judgment which cannot be faulted. The sentences were not startlingly inappropriate, nor do they {induce a sense of shock. The appellants and their cohorts brazenly, in broad daylight, In the face of a ‘substantial police presence, set upon a group of peaceful workers and severely assaulted them with lethal weapons. They indiscriminately smashed cars of Innocent bystanders and pursued and assaulted other black persons who had nothing to do 2008 (1) SACR p40 NAVSA JA et VAN HEERDEN JA Awith the striking workers. Amongst those assaulted were women and elderly persons. It was demeaning and humillating to them in the extreme. A substantial fail sentence was, In my view, warranted, particularly where as a consequence of their actions a life was lost. The additional two years’ imprisonment Imposed on appeliant 7 was also sijustified. The assault of which he was convicted took place at two o'clock in the afternoon of the day in question, long after the main attack had taken place. According to the State witnesses an unknown black man came into a local doctor's waiting room and hid behind the door. Five to six white men, one of whom was appellant 7, entered, struck the man repeatedly with pickhandles and sticks to such an extent that extensive bleeding from his head was observed. A tear-gas canister was activated and the witnesses fled. When they returned the attackers and the unknown black man had disappeared. The brutal assault on an unarmed man, outnumbered six to one, by men armed with lethal weapons Is deserving of an additional period of direct imprisonment. 6i[13] I would therefore have: (2) allowed the appeal of all the appellants against their conviction and sentence on count 2 and set them aside; (6) dismissed the appeal on sentence in respect of count 1 and appellant 7's appeal against his sentence on count 3; © (©) considered Increasing the sentence on count 1 in respect of all appellants to an effective 8 years’ Imprisonment. Fariam JA concurred. Judgment Navsa JA ef Van Heerden JA: [14] We have had the benefit of reading the judgment of our colleague Combrinck JA, Whilst we agree with his conclusion that, on the facts, the regional magistrate correctly convicted the appeliants of culpable homicide, we are constrained to disagree that a confirmation of @ conviction on that charge would amount to a duplication of convictions. [15] Before addressing that question we consider It necessary to place our perspective of the behaviour of the appellants and thelr cohorts on record, A white librarian, Ms Greyling, testified that shortly before the attack she witnessed a number of vehicles and white people gathering in an area which she was clearly able to see. One of thelr number addressed fithe assembled crowd, A bakkle arrived bearing a pile of newpickaxe handles which were then distributed. It Is common cause that, apart from these pickaxe handles, others of the group bore sjamboks or klerles. A municipal ambulance accompanied this crowd as they set off in the direction of where the black workers had gathered. It Is also common jicause that at some stage during the attack either an Iron rod or a kierle was seen lying on the seat of the ambulance and those black persons who had been Injured had understandably been most reluctant to be transported by that ambulance to the hospital. The driver of the ambulance refused to allow at least one injured person entry to the ambulance; the perception of this person was that the driver formed part of the white crowd, NAVSA JA et VAN HEERDEN JA [16] An important aspect of the attack which we deem necessary to dlrecord is that the first victim of the attack was a nature conservation official who had arrived at the taxi rank near where the workers had gathered to drop his aunt off there. He was oblivious of the workers’ strike and was totally unconnected to the protest action. The white crowd had, without any provocation, set upon his car as he reversed to leave the area. The car was damaged and he was physically threatened to élsuch an extent that he felt in danger of his life. Without prompt police Intervention he would, at the very least, certainly have been seriously injured. [17] Other important details of the attack and its consequences are set out hereafter, Later that day, one black person was pursued by a small group of white assallants (including appellant 7) into a doctor's waiting rooms where he was set upon and severely assaulted. [18] A group of attackers proceeded partly on foot and partly In bakkles to a parking area alongside a shopping centre and attacked people In the vicinity, wielding pickaxe handles and sjamboks. 6 [19] An attack was also unleashed on customers at a fast food outlet within a shopping ‘complex. The attacks were indiscriminate, certainly not limited to members of the group of striking workers, and with women and elderly people also being victims. [20] One man was attacked as he was attempting to close up at his place Bof employment. He was severely beaten and a woman at his place of employment, who was attempting to leave the scene, was pulled out of her vehicle and set upon. [21] It Is common cause that the police had to Intervene to prevent attackers in a bakkie from proceeding to the nearby black township. ¢ [22] An additional important fact Is that at least some members of the police appeared ‘sympathetic to the attackers, [23] Seen In proper perspective the attack was intended to put the workers, who had dared to go on strike, in thelr proper place. It was an unashamed racist attack perpetrated more than a year after the introduction of a constitutional order. It was arrogant in the extreme and incited terror amongst the black citizens of Kuruman, [24] Cars of innocent passers-by were also attacked and damaged by the marauding white assaliants, [25] During the course of the attacks referred to above, Mr Garoetelwe Adam Brown (the deceased) was so severely injured that he subsequently died In hospital of blunt trauma to the head. Another tragic consequence of these events was the revenge attack on a white correctional services official in the nearby black township, who was burnt alive in his vehicle. [26] Lest the incorrect impression be created, It is necessary to point out fthat the appellants in their heads of argument did not attempt to challenge the conviction of culpable homicide on the basis that It constituted a duplication of convictions with the conviction on the public violence charge. Indeed, the following part of the notice of application for leave to appeal is to the contrary: 3 NAVSA JA et VAN HEERDEN JA (H)oewel dit afsonderlike skuldigbevindings regverdig het, moes die verhoorlanddros die aanklagte saamgeneem het vir doeleindes van vonnis. 2008 (1) SACR paat 2008 (1) SACR pa42[27] In respect of the charge of culpable homicide the State's case was that, in Perpetrating excessively violent assaults with dangerous weapons on unarmed people, the white attackers ought reasonably to have foreseen that the death of one or more of the victims might result. The éidefence to this charge throughout the trial was that the death of the deceased was caused by people unconnected to the group of assailants and, In the alternative, that there was no reasonable foresight of death of any person, Froma careful perusal of the record as a whole, it is in our view evident that neither the State nor the defence would have Econducted the trial any differently had para (c), as referred to earlier, not been included in the public violence charge-sheet. [28] The appellants In their heads of argument and In their notice of appeal contended that no factual basis existed for the conviction on the charge of culpable homicide. Combrinck JA has effectively dispelled this Sicontention. [29] It Is also necessary to record that during the hearing the question of the duplication of convictions was initially ralsed mero motu by members of the bench. Counsel for the appellant was invited to respond and twice disavowed reliance on this point. The Presiding judge then decided to Invite the parties to submit further written argument on this aspect. This has been recelved. [30] We turn to deal with the question of duplication of convictions. It Is important to note that in the maglstrates' court and in the court below the parties were under no Illusion that they were dealing with two separate charges even though the following paragraph was, as pointed €out by Combrinck JA, included in the charge-sheet dealing with public violence: ‘That the accused are guilty of public violence in that they on 31 August 1995 at Kuruman unlawfully and with common intent to disturb the public peace by violent means and to infringe the rights of other persons, committed acts which assumed serious dimensions in that they: @@)... (b) (c) unlawfully and negligently killed Garoetelwe Adam Brown by hitting him with pickhandles, sticks, sjamboks and other objects; . . . [31] With respect, Combrinck JA appears to see the inclusion of this isubparagraph as an end in itself. In proper perspective the reasoning appears to be as follows: since the State chose to Include the unlawful and negligent killing of the deceased as one of the acts going to prove public violence It is bound by that cholce and It necessarily follows that In convicting the appellants of both public violence and culpable ihomicide there Is a duplication of convictions. [32] It Is necessary to consider first, the applicable section of the Criminal Procedure Act 51 of 1977 (the Act). Section 83 provides as follows: NAVSA JA et VAN HEERDEN JA Tf by reason of any uncertainty as to the facts which can be proved or if for dlany other reason It Is doubtful which of several offences is constituted by the facts which can be proved, the accused may be charged with the commission of all or any of such offences, and any number of such charges may be tried at once, or the accused may be charged in the alternative with the commission of any number of such offences. [33] Du Toit et al Commentary on the Criminal Procedure Act (service 38, 82007) at 14- 5 summarises the effect of s 83 in the following manner: ‘Section 83 authorises the inclusion In the charge-sheet of all the charges that could possibly be supported by the facts, even if they overiap to such an extent that convictions on all or on some of the counts would amount to a duplication of convictions An accused may thus not object, at the ébeginning of the trial, to the charge-sheet or indictment on the basis that It contains a duplication of charges. Such a duplication will occur where more than one charge is supported by the same culpable fact In short, It is the court's duty to guard against a duplication of convictions and not the prosecutor's duty to refrain from the duplication of charges.2 2008 (1) SACR p443.[34] The proper enquiry is whether In reality there has been a duplication Slof convictions. In order to address this issue it should be borne In mind that a single act may have numerous criminally relevant consequences and may give rise to numerous offences. Robbery, for example, may be committed by means of more than one act. [35] There is no infallible formula to determine whether or not, in any €)particuler case, there has been a duplication of convictions, The various tests that have been formulated by our courts (to which Combrinck JA refers) are not rules of law, nor are they exhaustive. They are simply useful practical guldes and in the ultimate instance, If these tests fall to provide a satisfactory answer, the matter Is correctly left to the common sense, wisdom, experience and sense of fairness of the court. # [36] It has always been accepted that a logical point of departure Is to consider the definitions of those offences In regard to which a possible duplication might have taken place. [37] In the present case we have to start with the definition of culpable homicide which Is the unlawful, negligent killing of another human being. Negligence Is assessed objectively, according to the standard of the 2008 (1) SACR p44 NNAVSA JA et VAN HEERDEN JA reasonable person. For a conviction of culpable homicide It must be shown beyond a reasonable doubt that a reasonable person, in the same circumstances as an accused, would have foreseen the death of a victim as a consequence of his or her conduct and that a reasonable person would have taken steps to guard against the foreseeable deaths [38] Public violence on the other hand may be defined as the unlawful and intentional commission by a number of people acting In concert of acts of sufficiently serious dimensions which are Intended forcibly to disturb the public peace or security or to Invade the rights of others.s [39] In contesting multiple convictions it Is often submitted that they are premised on the same set of facts. This Is, in fact, the so-called ‘evidence test’ sometimes applied by the courts in determining whether or not there is a duplication of convictions. This test enquires whether the evidence necessary to establish the commission of one offence Involves proving the commission of another offence. In this regard, Bristowe J, in the ojcase of Rv Van der Merwe 1921 TPD 1 at 5 pointed out that . « if the evidence necessary to prove one criminal act necessarily involves evidence of another criminal act, those two are to be considered as one transaction. But if the evidence necessary to establish one criminal act is complete without the other criminal act being brought in at all then the two are separate crimes. & (Emphasis added.) [40] That the evidence test is not necessarily at all decisive Is also borne out by the following dictum of Rabie CJ in S v Nkwenja en 'n Ander 1985 (2) SA 560 (A) at 571H ~ i: © Die appetiante se advokate het voor Coetzee R aangevoer dat die appellante nle aan albei misdade skuldig bevind kon gewees het nle omdat ‘op dleselfde getulenis, betreffende die geweld wat uitgeoefen was, staatgemaak Is om belde misdade te bewys’. Dit Is 'n verkeerde slening van die saak, Strafbare manslag en roof Is twee heeltemal verskillende misdade. By dle deerste het 'n mens te doen met die nalatige dood van 'n mens, en by die roof gaan dit om die gebrulk, of dreigement, van geweld om diefstal te pleeg. Die corweging dat die geweld wat in dle ultvoering van 'n roof gepleeg is tot die dood van die slagoffer gelei het, kan aan die essensiéla verskille tussen die misdade nie afdoen nie. 'n Verhoorhof sal vanselfsprekend trag om 'n beskuldigde nie tweemaal vir dieselfde geweld te straf nle, maar dit beteken fiinie dat lemand wat 'n ander in dle loop van 'n rooftog dood, nle aan sowel roof as strafbare manslag skuldig bevind kan word nie. [41] It Is clear that the State can and often will be able to prove the crime of public violence without any reference whatsoever to the negligent or other killing of any Person. The opposite is also true - the offence of iiculpable homicide Is capable of proofindependent of acts of public violence. Both propositions hold good in the present case. ‘The evidence of the general disturbance caused by the assaliants to the public order 2098 (4) SACK page .NAVSA JA et VAN HEERDEN JA ‘would be sufficient to secure a conviction on the public violence charge. AThe State was at liberty to continue to prove the offence of culpable homicide. [42] Another test which is sometimes applied by the courts in determining whether there is a duplication of convictions is the so-called ‘Intention test’. In terms of this test, if a Person commits several acts, sleach one of which could be a separate offence on its ‘own, but they constitute a continuous transaction that Is carried out with a single intent, his or her conduct would constitute only a single offence.z However, as pointed out by Wessels JA In Grobler (supra) at 523F - H: Insofar as the ‘single Intent’ and ‘continuous transaction’ test Is concerned, the distinction between motive and Intent and the different intents Inherent Gin different offences must not be overlooked . . . If a person breaks into a room Intending to steal from the occuplers and does so at one and the same time it might be sald that In substance he committed only one offence. Assuming he enters and steals the goods of the first person while he is asleep and then proceeds to the next person who awakes after his property has been stolen. In order to silence this person the accused renders him unconscious with a blow to the head. The third person Is awakened, and the accused then forcibly deprives him of his goods before departing, Common sense suggests that the accused may properly be convicted of housebreaking with Intent to steal and theft, assault and robbery. [43] It can hardly be sald that a group of people can have a common Eintention to commit culpable homicide, as the fault element of this offence by definition lies In negligence. This is a common-sense approach. [44] In the present case the group that had gathered near the library had conspired to Intimidate and teach the black workers a lesson. They were éclearly Intent on committing acts of sufficiently serious dimensions and thereby forcibly to disturb the Public peace, If In so doing they commit acts separate from that which was intended, such as in this case the negligent killing of the deceased, It Is clearly not only permissible, but also eminently fair and just that they be held liable on that basis. Indeed, a court may well in those circumstances be duty-bound to hold actors @llable for the separate unlawful acts perpetrated by them. Anything less will frustrate the public Interest and the rule of law. [45] What we have sald above Is substantiated by the manner In which the entire trial was conducted in the trial court. The State set out to prove public violence by relying on the general mayhem caused, and flintended to be caused, by the white assallants. The primary defence to this was that the State did not prove the participation of the appellants (ie a question of identification), [46] It Is clear from the regional magistrate's judgment that this is also the manner In which he viewed the matter. In his judgment, the evidence jin respect of the culpable homicide charge is dealt with in an entirely separate and distinct discussion from that on the public violence charge and the legal principles governing public violence. 2008 (1) SACR peas NAVSA JA et VAN HEERDEN JA 4[47] For all the reasons set out above, the conviction on the charge of culpable homicide does not amount to a duplication of convictions and must therefore be confirmed, [48] The court below recorded that It had seriously considered giving notice of the Possibility of an Increase In sentence but decided against it &lbecause of the lengthy delay in finalising the trial. In this regard the appellants were fortunate. At the commencement of this judgment we recorded our perspective of the moral opprobrium attaching to the conduct of the appellants. The effect of what Combrinck JA suggests might be to arrive at exactly the same result as that arrived at by the Gregional magistrate on the question of sentence. It appears that the approach by our colleague Is, In effect that, although the appellants cannot legitimately be held liable for culpablehomicide, over and above their being gullty of public violence, they might in any event be punished for both. On his approach the conviction of culpable homicide falls away, but the sentence for this offence might effectively be ‘transposed’ and 5'added' to the sentence previously imposed in respect of the conviction of public violence. In our view this would effectively translate Into the duplication which he apparently feels himself constrained to avoid. [49] We see no reason to interfere with the sentences and accordingly the following order is made: The appeal is dismissed. Mlambo JA concurred. Appellants’ Attorneys: Van de Wail & Partners, Kimberley; Symington & De Kok, Bloemfontein. 1. _ See para [10] above. 2 See in this regard S v Grobler en 'n Ander 1966 (1) SA 507 (A) at 513E - H (per Rumpff JA) and at 522E - ‘523k (per Wessels JA). See also S v Gaseb and Others 2001 (1) SACR 438 (NmS) at 4412 - 442 and 465 - ‘466d. In the latter case the accused were charged with four counts of rape, the wordlng of all the charges being Identical, Faced with en argument besed on duplication of convictions, the Namibla Supreme Court upheld all the convictions, holding that each of the four appellants had had sexual Intercourse with the ‘complainant without her consent and that each had assisted the three others In turn In the rapes committed by them. 3 See R v Kuzwayo 1960 (1) SA 340 (A) at 343H ~ 3446; S v Prins en 'n Ander 1977 (3) SA 807 (A) at 813H - ‘814A; S v Christie 1982 (1) SA 464 (A) at 485G - 496A; and Gaseb (supra) at 451d - 9. 4 Du Toit et al (service 38, 2007) at 14-6; Grobler (supra) at 512A; Prins (supra) at 814F; S v W 1979 (3) SA 308 (A) at 311E; S v Moloto 1982 (1) SA'844 (A) at 849 - 850. '5 Jonathan Burchell Principles of Criminal Law 3 ed (2005) at 159 - 60 and 674, 6 Ibid at 867. 7 See Du Tolt et al (service 38, 2007) op cit 14-8,