LL Case No 415/1987 IN THE SUPREME COURT OF SOUTH ...

LL Case No 415/1987
IN THE SUPREME COURT OF SOUTH AFRICA
APPELLATE DIVISION
In the matter between:
TYELOVUYO MGEDEZI
SOLOMON MANGALISO NONGHWATHI
PAULUS TSIETSI TSHEHLANA
SIPHIWE M M MBALOMDAKA
FRANS STONE MAKHANYA
EDWIN NKATHUTHU MASIKE
First Appellant
Second Appellant
Third Appellant
Fourth Appellant
Fifth Appellant
Sixth Appellant
and
THE STATE
Respondent
CORAM: BOTHA, SMALBERGER et STEYN JJA
HEARD: 12 SEPTEMBER 1988
DELIVERED: 30 SEPTEMBER 1988
JUDGMENT
BOTHA JA:-

2
The six appellants in this case were
convicted by a Judge and assessors in the Circuit Court
at Klerksdorp on four counts of murder and one count of
attempted murder. Three of the appellants, Nos 1, 2
and 3, were sentenced to death on each of the four
counts of murder, and to 15 years' imprisonment each on
the fifth count, i e attempted murder. Appellant No 4
was sentenced to 10 years' imprisonment on each of the
five counts, the sentences to be served concurrently.
The remaining two appellants, Nos 5 and 6, were each
sentenced to 7 years' imprisonment on each of the five
counts, such sentences also to be served concurrently.
The trial Judge granted leave to the appellants to
appeal against all their convictions and sentences.
The appellants had been charged together with
two other persons. Of the latter, one, who was
accused No 5, died about midway through the trial,
during a period when it stood adjourned for a few
weeks.
The other, who was accused No 8, was acguitted

3
on all counts at the conclusion of the case.
In the
present judgment the individual appellants and their
erstwhile co-accused will be referred to by the
designations assigned to them in the Court a quo.
So, the numbers of the first four appellants will
coincide with their numbers as accused in the Court
below, but the remaining two appellants will be
referred to as accused Nos 6 and 7 respectively.
The trial was a sequel to violence that
erupted on the night of 18 February 1986 in a compound
comprising
the single living quarters of the workers
employed at the
No 5 shaft of the Vaal Reefs Gold Mine
near Orkney.
With a view to the discussion which is
to follow later of some of the major issues raised in
this appeal, it is necessary at the outset to attempt a
description of the layout of the locality in question.
It is depicted in an aerial photograph which was
exhibit H at the trial and which was used by most of
the witnesses as a means of reference to point out the

4
various places to which their evidence related.
The
picture shows eleven large, double-storeyed, oblong
buildings in which the workers are housed.
There is
an indication in the record that each hostel is roughly
100 metres in length. Approximately 4 600 workers
live there.
The eleven hostels are spread out over a
large area of ground, which is fenced in.
The dimensions
of the area were not given in evidence, but the
photograph conveys a clear impression of spaciousness.
There are a number of other, smaller buildings
situated in between the eleven hostels, such as
ablution blocks, a bioscope, a television viewing room,
and so forth, and there are also open spaces, in some
places covered by clusters of trees.
Each hostel is referred to as a block with a
specific number, from 1 to 11.
They are situated as
follows. Along the northern boundary of the compound,
at the top of the photograph, there is a large
building complex which was referred to in the evidence

5
simply as the kitchen. With the kitchen as hub,
seven of the hostels are spread radially around it in
an arc of, I would say, roughly 120 degrees. Block 7
lies directly to the west of the kitchen and is in line
with
it, along the northern boundary of the compound
and extending to its western boundary. Looking
towards the top of the photograph, i e northwards,
block 7 is thus to the left of the kitchen. The
other buildings in this group of seven then extend
semi-circularwise from left to right (west through
south to south-east) for about two-thirds of the area
of the compound on a line from west to east. The
hostel furthest to the east (or to the right, looking
northwards) is block 1. The northernmost end of
block 1 is roughly opposite the eastern end of the
kitchen and it lies in a direction roughly from northwest
to south-east. There is a semi-circular road
around the south of the kitchen.
The inner ends of
blocks 1 to 7 converge on this road, where they are

6
relatively close to one another; their ends along the
outer periphery are considerably further apart from one
another, but the distances between them are not uniform.
The blocks are numbered, 1 to 7, from the east
to the west, or, looking towards the kitchen, from
right to left. The remaining four hostels are
situated to the south of the group of seven described
above.
There is one, running from north to south, in
the south-western corner of the compound; this is
block 11.
At right angles to it, in a line along the
southern boundary, we find blocks 10 and 9.
From the
eastern end of the latter, block 8 slants away at an
angle of about 40 degrees, towards the north-east.
It
ends up directly opposite the south-eastern end of
block 1, but some distance away from it.
To the east
of block 8 there is a chapel.
The entrance gate to the compound is situated
to the east of block 1;
looking at the photograph, to
its right.
On an east-west line the entrance gate is

7
more or less opposite room 12 in block 1.
As will
appear presently, room 12 was the focal point of the
violence which gave rise to this case.
The distance
between room 12 and the entrance gate appears from the
record to be about 50 metres.
The area in between is
open except for the presence of some trees in that
vicinity. Inter alia, there is a small cluster of
trees close to the entrance gate, on its western side;
and there are two small clusters of trees to the southeast
and east of room 12, the one quite close to the
building and the other slightly further away.
To the
south-east of the entrance gate there is a short line
of what appear to be small structures and buildings,
and the same can be seen to the north-east of the
entrance gate.
Otherwise, to the east (or right) of
the entrance gate there is a fairly large open area,
extending up to a number of large buildings which are
adjacent to one another, running from the north-west to
the south-east and covering practically the entire area

8
on a north-south line corresponding to the area comprising
the compound.
These buildings include an administration
block, offices, a medical station, and a
so-called "crush block", at the northern end of the
complex, through which underground workers must proceed
on their way to and from the mine shaft, which is still
further eastwards, beyond another area of open ground.
The building complex has a number of passage-ways
through which a person coming from the west can move in
order to reach the open area to the east of it.
Room 12 in block 1 is situated on the ground
floor, roughly two-thirds of the way along the length
of the hostel from its northern or kitchen end, or onethird
of the way from the other end, which is nearest
to block 8. Next to room 12, to the south-east,
there is a staircase in the building, leading up to the
top f loor, and at the same place there is also a
passage-way at ground level, through which people can
proceed from one side of the building to the other.

9
There is a similar staircase with a passage-way
situated at about one-third of the length of the
building from the kitchen end.
Blocks 2, 3, 4, 5 and
6 all have similarly placed staircases and passageways.
The door of room 12 faces east and it opens
onto a narrow stoep or verandah.
Next to the door
there is a large window which, within its outer frame,
contains four squares.
Each sguare contains an inner
framework enclosing six smaller squares with six separate
window panes.
The two large lower squares have
hinges at the top and they can be opened, when an inner
lever is released, by pushing them outwards and upwards,
thus providing a fairly large open space in the
wall.
On the inner side of the door and window there
is a portion of the room which can be described as the
living area, and which is furnished with lock-up cupboards,
tables, chairs and so forth.
To the back of
this area are the sleeping quarters, consisting of two
parts which are separated from each other by a dividing

10
wall, and from the living area by curtains. Each
sleeping area has four beds, and at the back each has a
window in the western wall of the building, half the
size, lengthwise, of the front window, and otherwise of
similar construction.
At about 8 p m on the night of 18 February
1986 a number of men launched a vicious violent
attack on room 12 and its occupants at the time.
As
far as the room itself is concerned, photographs taken
of it shortly after the arrival of the police at about
10 p m depict a scene of havoc and devastation.
Viewed from the front, every single pane in the window
was broken. No door is visible in the doorway.
Marks on the wall show where stones, pieces of concrete
and other missiles had missed their mark. At the
back, many, if not all, of the window frames had also
been broken.
Inside, to put it colloquially, the room
was a complete shambles.
Metal bedsteads were overturned
and up-ended, and chairs were broken and

11
overturned.
The floor was littered with an almost
unbelievable quantity of stones, rocks, bricks, pieces
of concrete, pieces of metal, and innumerable pieces of
debris of various kinds.
Also, a large fire had been
set alight inside the room.
Police evidence was that
the inside walls of the room were blackened by smoke
and that there was a strong smell of petrol in the
room. Black smoke marks can be seen in the
photographs of the outside of the room, along the tops
of the windows at the front and at the back.
Many of
the witnesses who gave evidence at the trial testified
to having observed a huge cloud of smoke that emanated
from the room.
I turn to the fate of the men who were in the
room at the time of the attack.
There weré six of
them.
Two of them lived to tell the tale - which they
did, at the trial, as witnesses for the State.
They
are Fernando Nhone and Molikeng Albert Nkuatsana.
I
shall refer later to the details of their evidence in

12
so far as they implicated some of the accused.
For
present purposes I propose to mention briefly the main
points of their evidence which bear on the nature of
the attack and what happened to some of the other
inmates of the room.
Nkuatsana was sitting under the trees in
front of room 12, playing draughts, when he observed a
group of men approaching from the direction of the
kitchen. They were moving along the front of block 1
and they were dancing and singing songs.
(I shall
tell later what they were singing.)
When they reached
room 12, they kicked open the door, which had been
closed, they stormed into the room and overturned some
of the furniture. They left. Nkuatsana went into
the room.
He was busy tidying his clothing when the
group of men returned, still singing. Suddenly
stones were thrown at the room. The window panes
at the front were broken.
The door was still closed
at that stage.
One Daniel (who became the deceased in

13
Count 3) was trying to hold the door closed and to lock
it.
Stones were raining down on the room, from the
front. Nkuatsana went to one of the back windows ,
opened it and jumped outside.
He was now at the back
of block 1 .
He saw a group of men approaching from
the direction of block 2.
In fear of them, he went
through the passage-way next to room 12 to the front of
the building, where he found himself amongst the group
of men who were still throwing stones; bottles
containing some fluid were also being hurled into the
room. He saw a tin of inflammable glue being
produced.
Some of it was applied to the door of room
12, which was set alight. It burnt for a while and
then the flame went out.
A motor car tyre was taken
to the front of the room.
A liquid which he took to
be petrol or paraffin was poured onto it, it was set
alight and then pushed through the window into the
room. The door was broken down with hammers.
Members of the group stormed into the room, one part of

14
which was now aflame.
They were armed with various
kinds of weapons.
He heard blows falling inside the
room. He saw one Edward, an inmate of the room,
rushing out of the door and fleeing in the direction of
the medical station, towards the east, pursued by a
group of the attackers.
(Edward became the deceased
in Count 1.)
Nkuatsana next found himself amongst a
group of spectators towards the south-east of room 12,
apparently in the vicinity of the end of block 1.
He
heard people shouting that one Boy had escaped through
a back window.
(Boy was also an inmate of room 12 and
he became the deceased in Count 2.)
At that stage
there were a group of men at the back of the southern
end of block 1, where there is an ablution block
between blocks 1 and 2.
He heard blows falling there.
He then saw Fernando (Nhone) rushing out of room 12 and
running, very fast, towards the entrance gate. He
had been severely injured.
He fell down at the gate,
got up, and ran further to the building complex to the

15
east of the gate.
After falling down again he kept on
running until he disappeared from sight. Nkuatsana
went to the place between the back of block 1 and the
ablution block, where he had heard the blows falling.
He saw Boy lying there, dead. He f led from the
compound and did not return that night.
Nhone was the victim named in the charge of
attempted murder (Count 5). He was in the sleeping
quarters of room
12 when he heard a group of people
singing.
They approached room 12 from the direction
of the kitchen.
As they passed the door, they pounded
on it and forced it open.
(He does not say that they
entered the room then.) They moved off in the
direction of block 8.
After a while they returned,
from the same direction.
They were then aggressive.
They were armed with, inter alia, bricks, stones and
hatchets.
Objects were hurled at the room, breaking
the window panes. The mob tried to f orce open the
door, while Boy
(the deceased in Count 2) and Daniel

16
(the deceased in Count 3) tried to keep it closed.
Those armed with hatchets hacked away at the door and
succeeded in breaking it.
A brick was flung through
the broken door and struck Boy on the head.
The crowd
had divided
into two sections, one being in front of
room 12 and the other at the back. Boy went to a
back window and spoke to someone outside. He then
left the room through a back window. Edward (the
deceased in Count 1) managed to escape out of the door
after it had been broken. In the meantime bottles
containing petrol were flung into the room, where they
broke, spreading petrol onto the beds and all over the
room.
A piece of a cardboard box was set alight and
thrown into the room, causing the whole room to catch
fire.
There was a great deal of smoke in the room.
Men armed with handmade, very sharp swords entered the
room and assaulted the inmates who were still inside.
Daniel was struck down first, felled by a blow against
his neck.
Nhone himself was also chopped, apparently

17
with a sword. According to him: "Ons was toe dood".
He regained consciousness in hospital the next day.
In fact, as we have seen, he managed to escape and to
run away towards the building complex to the east of
the entrance gate.
It appears from other evidence in
the record that he eventually reached the medical
station, from where he was taken to hospital.
A medical report on the severe injuries
sustained by Nhone was put in as evidence at the trial
by consent. Leaving aside minor injuries to his
fingers, wrist and back, the report describes his
injuries as follows:
"Extensive axe wounds to head, mainly in left
occipital and parietal region. Palpable
skull fracture through wounds. Skull X-ray
- linear (compound) fracture left parietooccipital
region."
"Above wounds consistent with severe assault
by sharp-edged instruments (? axes) and blunt
objects."
The deceased
in Count 1 was Edward Masiane.

18
As we have seen, he f led f rom room 12 through the
broken down door and ran towards the building complex
to the east of block 1, being pursued by some members
of the attacking mob.
His body was ultimately found
in a kind of courtyard on the further
(i e eastern)
side of the building complex.
It is clear, therefore,
that he found his way through one or more of the
passage-ways through the buildings and was emerging
f rom the other side of them when he came to his end.
A report of a medico-legal post mortem examination
which was put in by consent (as in the case of all the
deceased) recorded the cause of his death as follows:
"Bloeding
in die borskasholte a g v steekwonde
in beide onderlongstreke."
With a view to what is to follow later, two aspects of
the report must be noted. The first is that this
deceased's death was caused by two fatal stab wounds in
his back, as appears from the following extracts of the
report:

19
"Penetrerende steekwonde bilateraal posterior
toraks met penetrasie regter en linker
onderkwabbe met bilaterale hemotoraks."
"Pleurae en longe:
Regter: Penetrerende steekwond 1 cm onderkwab
regter long posterior
Linker: Penetrerende steekwond 1 cm linker
posterior onderkwab."
The second matter to be noted is that . numerous
lacerations (nine in all) were found on the deceased's
body and that most of these were on his head, with some
on the upper part of his chest and one on the upper
arm.
The deceased in Count 2 was Phillemon Mota.
He was the man referred to by Nkuatsana and Nhone as
Boy, who left room 12 through a back window.
His body
was found near the ablution block, opposite the
southern end of block 1.
His death had been caused by
a massive fracture of the skull. He had also
sustained a large number of lacerations, mostly to the
head.

20
Daniel Sikoati, the deceased in Count 3, was
burnt to death. His body was found in room 12. A
police photograph taken of it shows the burnt and
partly charred body lying on top of some blackened
remains of whatever it was that had been afire
underneath it.
The post mortem examination revealed
that he had also sustained a fractured skull.
The deceased
in Count 4, Joseph Rantlhatsi,
was found by the police in room 12.
He was alive, but
had been mortally wounded.
He was taken to hospital,
where he died. The causes of his death were a
fracture of the skull with brain haemorrhage and
fractures of the ribs with haemothorax.
In addition
his left upper arm had been partially severed and he
had sustained numerous lacerations and contusions all
over his body.
Before I deal further with the events of the
night in question, it will be convenient to refer to
some facts which constitute the background to those

21
events.
The eight men who resided in room 12 of block
1 were all team leaders at the mine. (As we have
seen, six of them were present in the room at the time
of the attack.) The position of a team leader was
explained in evidence by Mr Pollack, the compound
manager.
A team leader is a foreman in charge of a
number of workers, possibly up to 30,depending on the
work situation.
The function of a team leader is to
supervise the workers in his team, inter alia by seeing
to it that the working place underground was safely
maintained and that the production was kept up.
It is
safe to infer that team leaders enjoy the confidence of
the mine management, and also that instances of
misdemeanour or dereliction of duty on the part of
workers would be reported by the team leaders to the
mine management. Pollack estimated that there were
about 120 team leaders living in the compound.
It may
be mentioned at once that of the eleven eyewitnesses of
the events on the night in question, called by the

22
State, all but one were team leaders (the exception
being Armando Elias, a mine policeman who was on duty
at the entrance gate).
Shaft stewards, on the other
hand, as Pollack explained, are members of the work
force who are elected by their work-mates to act as
representatives for the National Union of Mineworkers
(hereinafter referred to as "the Union") in
negotiations on their behalf between the Union and the
mine management.
Accused Nos 1 and 3, it may be said
at once, were shaft stewards.
Pollack estimated that
possibly half of the work f orce were members of the
Union.
Part of the functions of a shaft steward, so
it appears from the evidence of Pollack and other
witnesses,
is to receive complaints from workers who
have been disciplined
or who feel aggrieved for some
reason, and to represent such workers, on behalf of the
Union, in taking up their complaints or grievances with
the mine management.
About the middle of 1985 a complaint on

23
behalf of the team leaders was lodged with the mine
management against accused No 1. The complaint was
that the team leaders had been threatened and
intimidated by accused No 1. The complainant was
Elliot Moshoeshoe.
(At the trial he gave evidence for
the State as an eyewitness of an important part of the
events on the night in question, as will appear later.
He is generally known by the name of Makepies and was
referred to as such throughout the evidence. As there .
was another State witness bearing the same surname as
he does, I shall henceforth refer to him as Makepies.)
As a result of Makepies's complaint a disciplinary
enquiry was instituted against accused
No 1, presided
over by the personnel superintendent, Mr Goosen.
The
enquiry extended over some months.
Team leaders gave
evidence at the enquiry, including Makepies himself and
a number of others who were also witnesses in the trial
in the Court a quo. Accusêd No 1 attended the
enquiry and was given an opportunity to defend himself.

24
In general, the tenor of the charges made against him
was that he called team leaders "mpimpi's" who ought to
be burnt to death. He denied the allegations. The
result of the enquiry was that accused No 1 was found
guilty and warned to desist from threatening the team
leaders. Accused No 1 appealed. His appeal was
dealt with by the personnel manager, Mr Du Plessis, who
went through the evidence and found accused No 1 not
guilty.
It is convenient at this stage to mention
that according to the evidence of accused No 1, he went
on leave shortly after the conclusion of the enquiry,
during November 1985, and he returned to work on 9
January 1986.
On Monday, 17 February 1986, a weapon was
found on the person of a team leader in the "crush
block", as he was returning from his work underground.
This man was in fact Daniel Sikoati, the deceased in
Count 3. On hearing of this occurrence, accused No 1
summoned the mine police and demanded that the rooms of

25
the team leaders be searched for the presence of
weapons. The mine police refused to do so. Mine
management
was called, and Pollack and Goosen, inter
alia, proceeded to the compound, where they talked with
accused No 1.
The latter insisted that a search for
weapons be undertaken of the team leaders' rooms,
mentioning specifically room 12 in block 1, room 77 in
block 3, and room 160 in block 5.
Pollack and Goosen
decided not to accede to accused No 1 's demand.
The
reason was explained by Pollack in his evidence.
He
said that "the hostel was very, very tense, extremely
so".
The cause of the tension, according to Pollack,
was twofold:
on the one hand, team leaders had been
complaining that they were being openly threatened and
intimidated by members of the Union, who, with accused
No 1 as their leader, had been running around, dancing
and singing threatening songs, which frightened the
team leaders;
on the other hand, members of the Uhion
and shaft stewards had been complaining that certain

26
team leaders were collecting weapons with the intention
of attacking them, and that they had information that
the weapons were being stored in the compound for the
purpose of attacking them.
Accused No 1 indeed told
Pollack that there was going to be trouble if the rooms
were not searched.
During the presence of Pollack
and Goosen at the compound a number of weapons were in
fact produced, which had been found stored in a drain
at the back of block 5. Accused No 1 was very
annoyed at the refusal to conduct a search.
On the
following morning, however, a search was carried out,
and a number of weapons were found in the compound,
such as sticks, iron bars and the like.
Up to this stage the facts set out in this
judgment are not in dispute.
Proceeding to the next
aspect of the background facts, we enter into an area
of dispute.
With a few exceptions, all of the eleven
eyewitnesses called by the State also testified as to
meetings held prior to 18 February 1986, at which

27
accused No 1 uttered dire threats against the team
leaders. At these meetings, the witnesses said,
accused No 3 invariably acted as interpreter for
accused No 1 , translating what he said in Xhosa into
the Sotho language. These meetings were a regular
occurrence. According to Makepies, the disciplinary
proceedings instituted against accused No 1 caused the
threats to cease for a while, but accused No 1 resumed
his threatening exhortations to the workers, directed
at the team leaders, during January 1986 (when, it will
be recalled, he returned from leave).
A féw examples
of how the witnesses described the meetings and accused
No 1's threats will suffice.
Nhone, mentioned above,
said that weekly meetings were held by the members of
the Union.
The following are some excerpts from his
evidence, as to what was said by accused No 1 and
translated by accused No 3:
"Hy het gesê die mpimpi's word aan die brand
gesteek met buitebande."

28
"Dan begin hy met sy toespraak dan sê hy
hierdie 'team leaders', dit is die spanleiers
sal ek sê, is mpimpi's, beriggewers, want
hulle werk hand in hand met die Blankes."
"Hy het net herhaaldelik gesê die spanleiers
is mpimpi's en almal wat die vergadering
bygewoon het skop toe h lawaai op - 'Ja,
hulle is mpimpi's, hulle is mpimpi's.' So
was die lawaai."
" Ja, hy het gesê hierdie mpimpi' s moet aan
die brand gesteek word en 'n buiteband moet
gebruik word."
Daniel Nkofu was one of the inhabitants of room 12 in
block 1 , but fortunately for him, he was outside it
when it was attacked on the night of 18 February 1986.
He was an eyewitness of the attack, as will appear
later. As to the meetings before that date and
accused No 1's threats, he said, inter alia:
"Wat baie ter bespreking gekom het, is dat
hierdie spanleiers se kombuis moet gesluit
word en hierdie wonings van hierdie
spanleiers, 'team leaders', moet opgebreek
word. Mpimpi's moet verbrand word
Hulle dra nuus oor na die Witmense."
"Die mpimpi's, beriggewers, moet verbrand
word.
Hierdie spanleiers is die Witmense se

29
beriggewers, dan sê hy aan die toehoorders
'Wat sê julle? Wat is julle reaksie
hierop?'"
Stephen Tshiame lived in room 101, block 4. He was an
eyewitness of the attack on room 12, as will appear
later.
In the course of his evidence he was asked
whether he knew the reason for the attack on room 12.
He replied affirmatively and explained as follows:
"Dit was as gevolg van wat beskuldigde nr. 1
op h geleentheid gesê het nog lank voor
hierdie voorval, aan mense gesê het dat die
spanleiers wat daardie kamer bewoón is
mpimpi's vir die Witmense, hulle is die Boere
se mpimpi's, hulle moet doodgemaak word en
ook verbrand word. U sien, hy het dit nie
net op een geleentheid gesê nie. Dit was
deur hom by verskillende vergaderings gesê
toe hy h toespraak gelewer het."
Nkuatsana, when asked at the commencement of his
evidence what his rank was, replied that the people in
the compound called him a mpimpi, and went on to
explain the meaning of the word as follows:
Dit
"Maar wat beteken die woord mpimpi?
is iemand wat waninligting gee oor die

30
ander werknemers by die seniors.
Die seniors, is dit die Witmense?
Ja.
Sou ek reg wees om te sê mpimpi beteken
'n nuusdraer van valse storietjies omtrent die
werkers aan die seniors, dit is aan die
Witmense? Ja."
Accused Nos 1 and 3 denied all of the State evidence
relating
to the threats made against team leaders at
the meetings.
Against the background set out above I now
revert to the events on the night of 18 February 1986.
It is necessary first to discuss in broad terms some
aspects of the general tenor of the evidence of the
eleven eyewitnesses called by the State. The
outstanding part of the events was, of course, the
attack on room 12 and its occupants.
That central
occurrence was, however, preceded, accompanied and
followed by other
events that took place in different
places in the compound.
Each of the State witnesses
described the particular event or events that he
observed, and each implicated only such of the

31
particular accused as he saw taking part in the events.
Accused No 1 was seen, during the course of the
evening, by seven witnesses, in various places in the
compound;
accused Nos 2 and 7 were implicated by only
one witness each;
and accused Nos 3, 4 and 6 were each
implicated by two witnesses.
Only accused Nos 1, 3 and
4 were seen in the immediate vicinity of room 12 at the
time of the attack on it;
the other three accused were
seen only in other places in the compound.
The total
impression of the State evidence is thus too complex
and fragmented to permit of a simple composite picture
of it being given. The position of each of the
accused will accordingly have to be considered
individually and separately.
There are, however, two
salient features of the State evidence which may
conveniently be referred to now.
The first point to
be noted is that there are no particular problems about
identification present in this case, since it was shown
in the evidence for the State that each of the accused

32
who was implicated by any particular eyewitness
concerned was well known to that witness. For the
purposes of this judgment the generalization that each
State witness who identified a particular accused was
well acguainted with that accused, will suffice; there
is no need to enter upon the details of the evidence in
that regard. The second point, which is of
fundamental importance in this case, is that no State
witness saw any of the accused actually inflicting any
injury upon.any
of the four deceased which caused or
contributed causally to the death of any of the
deceased, nor was any of the accused seen physically to
assault Nhone.
The absence of evidence that any of
the accused
committed any act which was directly and
physically linked to the causing of the death of any of
the deceased or to the assault upon Nhone, means that
liability for the deaths or the assault can attach to
the accused only if the State proved that the accused
acted
in common purpose with those whose acts caused

33
the deaths of the deceased or who took part in the
assault upon Nhone.
Another feature of the State case, to which
reference may usefully be made now, is that it appears
from the evidence that groups of people were marching
through the compound, dancing and singing songs calling
for the mpimpi's to be killed. The single most
comprehensive picture of the movements of the groups is
provided
by the evidence of Stephen Tshiame, to whom
reference has been made before.
The following is a
summary of his evidence on this score.
He had been
visiting outside the compound, and onhis return he was
on his way to room 12 in order to pay a visit to his
uncle, Boy (the deceased in Count 2).
He heard people
singing behind him, turned around, and saw a small
group of about ten men coming through the entrance
gate, singing. They moved in the direction of the
kitchen, still singing.
He went into room 12 and was
sitting talking to his uncle when he heard a group of

34
singers approaching from the kitchen and moving towards
the direction of block 8.
The group was now larger.
As they passed room 12, its door was kicked open, but
no one entered the room, according to this witness.
He
then lef t the room and went through the passage-way
next to it, towards block 2. On his way to block 3,
having passed through block 2, he saw the singing
group, which had become still larger, moving
towards
block 2 and the kitchen.
He went into his room, which
is room 101 in block 4.
He heard the sound of singing
from between blocks 4 and 5.
Looking out of his window,
he saw the group, which had by now grown to about
100 people, moving along block 5. Passing room 140
in block 5, in which the headman of a tribe lived, members
of the group tried unsuccessfully
to force open
the door. The group moved on to room 144, where a deputy
headman
lived, and some of the group entered while
the main body of it waited outside.
After a while the
smaller group rejoined the large one, which then moved

35
on to the top floor of block 5, to the room where
Makepies lived. (This was room 160.) Again, some
members of the group went inside the room, while most
of the group waited outside, and after a while those
that had entered the room rejoined those waiting
outside. Still singing, the whole group moved" to
block 4.
The process of some members entering a room
and then rejoining the group was repeated at room 100
(next-door to where the witness was) and at rooms 108
and 112. The group then moved on to block 3. After
a while Tshiame left his room. He heard someone
saying that team leaders were being killed at block 1
and proceeded thence to investigate.
He found a great
mass of people in front of room 12. He stood in
darkness under a tree and saw that stones were being
thrown at room 12.
He left the scene and returned to
his room.
The "visits" of members of the singing group
to two of the rooms mentioned
by Tshiame can now be

36
explored a little further.
First, room 160, on the
top floor of block 5, where Makepies lived.
Makepies
testified that he was asleep in his room when one Simon
came to warn him that people who were looking for him
were approaching.
He could hear people singing, but
could not make out what was being sung.
The people
were coming towards his room.
He decided to hide away
in the ceiling of his room.
While hiding there, he
heard people entering his room. They were still
singing, but he did not take notice of what they were
singing. After a while they left. Makepies decided
to flee.
He ran past the kitchen towards the building
complex to the east of the compound, intending to look
for shelter in the shaft-head beyond.
When he reached
the building complex his attention was distracted by a
noise coming from the compound. He paused in his
flight and watched what was happening.
He saw a great
mass of people at block 1 , in the vicinity of the
entrance gate to the compound.
He then saw a flame

37
and smoke emanating from the hostel. A whistle was
blown and people scattered in all directions.
Makepies found a hiding place in the building complex,
from where he witnessed how Edward Masiane, the
deceased in Count 1, was killed. With this I shall
deal later.
The second room mentioned by Tshiame, to
which I refer next, is room 108. There were four
people in the room at the time, two of whom became
State witnesses: Ernest Modise and Ephraim
Moshoeshoe.
(I shall refer to the latter as Ephraim,
in order to avoid possible confusion with the other man
with the same surname, Makepies.)
Modise said that he
was sitting in the room with his room-mates when he
heard people singing outside, between blocks 4 and 5.
He went out and saw a group of people moving to
Makepies's room.
He heard some of them shouting:
"Makepies, Makepies, kom af, ons wil vir jou
doodmaak."

38
He went back into his room. Shortly thereafter a
number of men entered the room, singing.
They were
singing in Xhosa, which he does not understand.
These
men then assaulted the inmates of the room by pushing
them around. They also knocked a radio off the
table. They then left. After a while Modise left
the room himself, and witnessed certain further events
in that vicinity and, later, at room 12, with which I
shall deal later.
Ephraim confirmed that a number of
men suddenly burst into the room.
They were singing
and clapping their hands, and they jostled the inmates
and knocked over a radio.
He could understand what
they were singing.
He said the song went as follows:
"Mpimpi, wat maak ons met jou vandag, jou
duiwel.
Vandag gaan jy dood."
The intruders left, and after a while Ephraim also left
the room. He saw a group of people moving towards
block 1, room 12, and he went there himself.
What he
witnessed there will also be dealt with later. At

39
this stage it will be convenient to mention that many
of the State witnesses heard songs being sung of
similar vein to that deppsed to by Ephraim.
I shall
now give some further examples of the theme song of the
evening.
Komeisi Qhalisile was walking from his room
in block 6 towards the kitchen, on his way to work
underground, when he encouhtered, between blocks 3 and
4, people whom he described as members of the Union.
They were dancing, and singing:
"Mpimpi moet doodgemaak word, mpimpi moet
doodgemaak word die mpimpi's moet
gebrand word."
Johannes Motjoli was on his way from the kitchen to his
room in block 3 when he saw a
group of men dancing and
singing between blocks 2 and 3.
They sang:
"'Team leader' is 'n mpimpi.
Hierdie mpimpi
sal niks kan doen nie, dié duiwel sal brand."
Nkuatsane said that the group of people who first moved
from the kitchen past room 12 sang as follows:
"Wat is jy, mpimpi. Jou duiwel, vandag gaan
brand jy Vandag gaan leer jy 'n les."

40
Having sketched the general tenor of the
State evidence, I turn to the general tenor of the
defence evidence. Each of the accused involved in
this appeal gave evidence denying any participation in
any of the events deposed to by the State witnesses.
In brief, accused No 1 raised an alibi:
he denied that
he was in the compound at all during that evening and
said that he spent it at the house of one Colbert
Mtjelwa, who was called as a witness on his behalf.
Accused Nos 2, 4 , 6 and 7 admitted that they were in
the compound, but each of them testified that he saw or
heard nothing at all of the commotion in the compound
or of the attack upon room 12 and its occupants until
after the events had run their course, i e until more
or less the time when a contingent of the mine security
force arrived on the scene.
Accused No 3 admitted to
having been in the compound and having seen a throng of
people in front of room 12, but he denied knowledge of
any further details or any participation in the

41
events.
I shall refer more fully to the evidence of
each of the accused when I come to consider the case
against each individually.
It is necessary now to examine the manner in
which the trial Court dealt with the evidence in the
case.
The trial Judge in his judgment, by way of
introduction
to a review of the evidence relating to
the events of the night in question, observed that the
trial Court had to be satisfed that there was no
reasonable possibility that the defences of the accused
could be true;
that involved also, he said, that the
trial Court had to be satisfied beyond reasonable doubt
that the accounts given by the State witnesses were
credible and reliable in all material respects;
accordingly, the learned Judge continued, it would be
appropriate always to bear in mind the defence cases
when considering the evidence for the State;
and for
that purpose it was considered necessary first to set
out the defences put forward by the various accused.

42
The approach reflected in these remarks is, of course,
unexceptionable. But unfortunately, when it
ultimately came to an actual assessment of the
evidence, the trial Court failed to apply this approach
properly, as will appear presently. The learned
Judge went on to summarize, at some length, first, the
evidence given by and for each of the accused, and
then, the evidence given by each of the State
witnesses. He then reviewed the purport of the
arguments addressed to the trial Court by counsel for
the State and by counsel for the accused.
Thereafter
the learned Judge formulated the reasoning and the
findings which constitute the core of the trial Court's
judgment. In the quotation which follows below I
have divided the passages of major importance into four
separately numbered sections, for ease of reference
back in the rest of the present judgment:
(1) "Daar hoef slegs na BEWYSSTUK G1 EN G2
gekyk te word om 'n besef te vorm van
die omvang van die woeste geweld en

43
rumoer wat h honderd of meer geweldenaars
sou veroorsaak het wat sing en
dans, klippe teen die mure en deur die
vensters aan die westekant gooi, deur
stukkend kap, verset oorweldig en uiteindelik
aan die brand steek en afbrand.
Dit is redelik om te aanvaar
dat geen inwoner van die kampong onbewus
sou wees van die oproer wat geheers
het nie. Dit het begin met
die groepies wat uit verskeie rigtings
kom, dansend sing en deur die kampong
beweeg en uiteindelik konsentreer en
saamtrek in die omgewing van die kerk
aan die suidekant en van daar verdeel
sodat een groep aan die westekant tussen
blokke 1 en 2 die agtervenster van
kamer 12 beheer en die groot groep aan
die oostekant toegang deur die kamerdeur
sou kry
Ons is eenparig
van mening dat die verdediging
se getuienis dat dit rustig en kalm in
die kampong was, dat geen kennis van
geweld opgedoen is nie behalwe in die
beperkte mate waarvan getuig is, in
alle opsigte opsetlik vals is."
(2) "Sover ons weet het nie een van die
beskuldigdes h verklaring aan die
polisie gemaak nie. Daar was ongetwyfeld
honderde inwoners van die kampong
wat aanskouers was van een of
ander dade van die geweldenaars. So
'n toeskouer maak hom nie skuldig aan
deelneming nie. Dit is die maklikste
en vanselfsprekende verweer om aan die
polisie te gesê het dat elk slegs

44
toeskouer was. h Verstommende aspek
van een en elke beskuldigde se
verdediging is dat elk sig nie as 'n
toeskouer verontskuldig nie. Elkeen
ontken kennis van dans, sing en
dreigemente teenoor spanleiers as
mpimpi's, dat daar onrus in die kampong
was en dat hulle vooraf en gedurende
die geweld daarvan te wete gekom
het. Hulle distansieer hulle van die
geweld en in die proses vertel hulle
verhale wat teenoor oorweldigende
waarskynlikhede militeer. Die afleiding
skyn onvermydelik te wees dat
beskuldigdes 1 tot 7 inderdaad op die
toneel was en deelgeneem het aan die
uitvoering van die mpimpi-dreigement.
Hulle besef ook dat hulle deur die
Staatsgetuies in een of meer opsig met
h spesifieke handeling geïdentifiseer
is en om daardie rede nie die onskuldige
toeskouer-verweer suksesvol kan
opper nie. Ons verwerp hulle verwere
as vals bo redelike twyfel."
(3) "Die aard van die beserings van elke
oorledene en dié van Fernando, die instrumente
waarmee, die wyse waarop en
omstandighede waaronder dit meedoënloos
toegedien is lewer onbetwisbare
getuienis dat die toedieners h gemeenskaplike
opset gehad het om te dood en
enigiemand wat hom met die daders vereenselwig
het deur iets te doen wat
ter bevordering of ondersteuning van
die bereiking van die gemeenskaplike
doel gedoen is, wat hy gedoen het, is

45
aanspreeklik vir die gevolge wat hy as
h moontlikheid voorsien het en desondanks
onverskillig was of die gevolge
sou intree of nie op die stadium toe
hy sy bydrae gemaak het."
(4) "Die Staatsgetuies vanuit die kampong
is volwassenes. Hulle het sonder h
waarneembare sweem van oneerlikheid en
aandigting getuig. Geen teken of
rede is aangevoel dat die implisering
van 'n beskuldigde opgemaak en
kwaadwillig is of selfs op gebrekkige
of foutiewe waarneming berus nie.
Selfs die teenstrydighede of die
weersprekings waarop mnr Smith gewys
het en wat in hulle getuienis voorkom
doen nie afbreuk aan hulle
geloofwaardigheid nie. Trouens die
voorkoms daarvan weerlê enige gedagte
dat daar moontlike samespanning tussen
enige van of al die Staatsgetuies mag
wees om h meinedige verhaal hier in
die hof op te dis Die
Staatsgetuies staaf mekaar onderling.
Hulle getuienis skilder h ineengeweefde
geheelbeeld sodat ons oortuig is
dat elkeen se getuienis, alhoewel in
sekere opsigte dié van h enkele getuie,
bevredigend, geloofwaardig en
sover dit gaan betroubaar is."
The learned Judge proceeded to state briefly, in
respect of each of the accused, in what manner and by
which State witness or witnesses that particular

46
accused was implicated in the events.
In this brief
survey there was no further consideration given to the
evidence of each accused (except in the case of accused
No 1), in the sense of weighing it up against the State
evidence implicating that accused. In each case
(except for accused
No 1) the synopsis of the State
evidence relating to the individual accused concerned
was simply preceded or followed by the terse statement
that the evidence of that accused was false, or had
been found to be false.
On this basis each of the
accused was found guilty on all 5 counts, as set out at
the commencement of this judgment.
It is clear that the heart of the trial
Court's reasoning is to be found in paragraph
(2) of
the above quotation from the trial Judge's judgment.
In my view, with respect, that reasoning is
fundamentally fallacious.
The idea expressed in the
first part of the paragraph, viz that a mere spectator
amongst a crowd present at the scene of violence cannot

47
be held
liable for the violence, is, of course,true.
No one has ever suggested the contrary.
(I ignore
the misguided comments of hysterical politicians
masguerading as lawyers, following upon the judgment
delivered in the case reported as S v Safatsa and
Others 1988 (1 ) SA 868 (A).) And, simply for the
sake of argument, it can be supposed to be "an
astonishing aspect" ("'n verstommende aspek") of the
defences put up by the accused
that not one of them
sought to exculpate himself as a mere spectator of the
events.
(The learned Judge's statement is factually
not quite accurate, though, as far as accused No 3 is
concerned.) But these comments, coupled with the
reference to the denials of each of the accused of any
knowledge of a commotion, or unrest, or violence, or
threats to mpimpi's, in the compound that night, cannot
possibly serve as a foundation for the further
reasoning of the trial Court.
A view of the totality
of the defence cases cannot legitimately be used as a

48
brush with which to tar each accused individually, nor
as a means of rejecting the defence versions en masse.
The global view taken by the trial Court of the defence
cases led it to draw two inferences: (a) that each
accused was present at the scene (sc
at room 12) and
participated in the execution of the threat against
the mpimpi's; and (b) that the def ences of all of
them were false beyond reasonable doubt. With
respect, as a matter of simple logic I consider both
inferences to be wholly insupportable.
First, as to
(b):
an explanation given in evidence by an individual
accused for his unawareness of the relevant events in
the compound whilst these were taking place cannot
logically be rejected on the grounds that all the other
accused professed similar unawareness for different
reasons and that it is unlikely that all of them could
in fact have been so unaware;
nor on the ground of the
generalized assumption stated in paragraph (1) of the
above guotation from the judgment, that not a single

49
inhabitant of the compound would have been unaware of
the events;
nor on the blanket acceptance, en masse,
of the evidence of all the State witnesses, as stated
in paragraph (4) of the above quotation; nor on all
these grounds taken together.
The trial Court erred
by precluding itself from performing its duty to
consider the evidence of each accused separately and
individually, to weigh up that evidence against the
particular evidence of the individual State witness or
witnesses who implicated
that accused, and upon that
basis then to assess the question whether that
accused's evidence could reasonably ppssibly be true.
That the trial Court's failure to embark upon such an
exercise constituted a serious misdirection can best be
demonstrated by considering the position of accused No
7; I shall accordingly deal with his case first when I
come to examine the cases of the individual accused in
a moment. As to the inference in (a) above: there is
simply no foundation
in the evidence for the finding

50
that all the accused were present at room 12 when the
violence was being perpetrated there.
As was pointed
out earlier, only three of the accused were seen by
State witnesses near room 12, and there is no way in
which the other three accused, who were seen elsewhere
in the compound, can notionally be transplanted to the
vicinity of room 12 by way of a generalization.
Nor
is there any justification for the further
generalization, stated as such in the judgment, that
all the accused took part in the execution of the
threat to kill the mpimpi's.
The reference, in purely
general terms, to liability on the basis of a common
purpose, in paragraph (3) of the above quotation from
the judgment, cannot warrant an inference of liability
in respect of all the accused en bloc. The trial
Court was obliged to consider, in relation to each
individual accused whose evidence could properly be
rejected as false, the facts found proved by the State
evidence against that accused, in order to assess

51
whether there was a sufficient basis for holding that
accused liable on the ground of active participation in
the achievement of a common purpose. The trial
Court's failure to undertake this task again
constituted a serious misdirection.
This can best be
demonstrated by examining the position of accused No 6.
I shall deal with his case after I have dealt with the
case of accused No 7.
I turn, then, to a consideration of the cases
of each individual accused, and, as indicated above, I
shall commence with the case of accused No 7.
The State case against accused No 7 rested on
the evidence of a single witness, Johannes Motjoli.
In so far as it is relevant
in the present context,
Motjoli's evidence can be summarized guite briefly.
He was standing in front of block 3 when he observed a
huge crowd of people moving from block 8 towards block
1, room 12. Suddenly he saw smoke rising into the air
at that place. After a while (during which time

52
accused No 4 came past, as will be related later) he
saw accused No 7 in a group of men coming into the open
space between blocks 2 and 3, where there are trees.
They emerged from the passage-way in block 2 which is
nearest to the kitchen.
They had come, he said, from
block 1. (It is difficult to imagine how he could
have known that, but for present purposes that is by
the way.)
Accused No 7 and some others in the group
broke off branches of the trees for use as sticks.
As Motjoli put it: "Hulle kom pluk toe hierdie kieries
by bome hier by die spasie tussen 2 en 3".
Accused
No 7 then handed the kieries that he had gathered to
other members of the group. They then all left,
apparently by the same route as they had come.
According to Motjoli they went back to block 1.
(Again it does not appear how he could have known that,
but it does not matter.)
That was the only evidence against accused No
7. He denied it, emphatically, branding Motjoli as a

53
liar.
His own evidence can also be summarized quite
briefly.
He said that after he had had a meal at the
kitchen, he went to the television room at block 7 and
watched television there until the station closed down.
(I shall not mention his estimates of the time, as they
are clearly unreliable.)
He then walked towards his
room, which is room 42 in block 2.
He followed a path
along the southern ends of blocks 6, 5, 4 and 3,
turning left opposite block 8 to proceed along the west
of block 2 (this block faces west, i e blocks 2 and 1
are situated back to back).
To reach his room, 42, he
had to go past room 47.
As he approached blocks 3 and
2 he saw people standing around in scattered groups.
When he reached room 47, he found a number of men
standing in front of it.
They were accused No 6, Sam,
Edward Mafaisa, Petrus, and a policeman called Quenene.
Room 47 is close to the passage-way through block 2
which is nearest to block 8, i e room 47 is almost
exactly opposite room 12 in block 1. Accused No 7

54
asked accused No 6 what was happening, and received the
reply that the workers were attacking the team leaders
in room 12. According to accused No 7 he sat down
with the others, waiting, and after some time the
security people arrived in the compound.
The little
group with whom he was sitting scattered, and he went
off to his room and to bed.
Two aspects of accused No 7's evidence
require further comment.
The television room, where
he said he had been, is situated between the western
ends of blocks 6 and 7.
It will be recalled that
block 7 lies along the northern boundary of the
compound, extending to its western boundary.
So the
television block is situated practically in the northwestern
corner of the compound, at about the furthest
point away from room 12 in block 1. The distance
between the television room and room 12, having regard
to the aerial photograph and such distances as appear
f rom the record, cannot be less than a couple of

55
hundred metres.
The importance of this is obvious:
there is no foundation for a finding that a person who
was watching television in the television room must
have been aware of the commotion that was taking place
in the compound in the vicinity of block 1, or even at
the kitchen or at blocks 4 and 5.
Accordingly there
is nothing inherently improbable in accused No 7's
evidence. The other matter to be noted is that
accused No 7's evidence of his meeting up with accused
No 6 in front of room 47 is not confirmed in the
evidence given by accused No 6.
But accused No 6 was
not asked anything about accused No 7.
The latter's
evidence in this respect was certainly not an
afterthought on his part, for it was specifically put
to Motjoli in cross-examination.
I do not consider,
therefore, that the mere silence of accused No 6 on
this point detracts from the evidence of accused No 7.
Moreover, a witness who was called on behalf of accused
No 6, Edward Mafaisa, confirmed
in his evidence that

56
accused No 7 was present amongst the little group of
people who were together in f ront of room 47. It
should be mentioned that one part of the evidence of
accused No 6 and Mafaisa falls to be rejected, as will
appear presently, when I come to deal with their
evidence. However, the unacceptable part of their
evidence does not relate to the fact of their being
present in front of room 47 at a stage when accused No
7 arrived there. In fact both of them testified to
having been at that spot shortly before the security
police arrived in the compound, and I do not think that
this part of their evidence is tainted by the rejection
of other aspects of their evidence.
In the case of accused No 7, then, we have a
straightforward conflict of evidence between Motjoli
and the accused. It is possible, on a minute
scrutiny of the evidence of accused No 7, to unearth
minor points of criticism against it, but that applies
no less to the evidence of Motjoli.
No motive has

57
been revealed as to why Motjoli would falsely implicate
accused No 7 and
it may be said that it is unlikely
that he would have done so, but it need hardly be added
that that affords no sufficient basis for rejecting
accused No 7's denial of Motjoli's evidence as being
false beyond reasonable doubt.
As I have said, there
is nothing substantially improbable about accused No
7's evidence. In my judgment the State failed to
establish its case against accused No 7 with the
requisite degree of proof.
It follows that accused No 7's appeal against
his convictions and sentences on all 5 counts must be
upheld in its entirety.
I turn to the case of accused No 6.
He was
implicated
by two State witnesses, Ernest Modise and
Phillip Jobo. I have already referred to Modisê's
evidence regarding the singing and dancing group of men
whom he observed moving to Makepies's room in block 5,
and who then entered room 108 in block 4, where Modise

58
was.
Modise's evidence against accused No 6 was that
he saw him in that group, whilst it was going towards
block 5 and Makepies's room.
He said that accused No
6 was in the vanguard of the group as it was moving to
block 5. Accused No 6 was dancing and singing.
Modise saw no weapon in the possession of accused No 6,
but he noticed that the members of the group were
throwing their fists into the air as they were singing.
Accused
No 6 was not amongst those who entered room
108.
Jobo stayed in room 101, block 4.
He was
in his room when he heard people singing.
They went
into room 100, next-door to his room, still singing.
Room 100 was a room in which team leaders were staying,
but he
could not say whether any of the inhabitants
were present there at the time. As the group was
leaving room 100, Jobo looked out of the window of his
room.
He saw accused No 6, who was carrying a stick
("kierie"). He was one of the singers. There were

59
guite a number of them. He heard that they were
singing that mpimpi's had to be killed.
He knew they
were referring to team leaders, because he had attended
a meeting at which accused No 1 had made a speech
calling for the killing of mpimpi's, being the team
leaders, because they were maltreating the workers at
their work.
Jobo said that he saw further that the
group went on to room 108, which they entered. It
will be recalled that that was the room in which
Ephraim and Modise were.
When the group emerged from
that room, they moved further away around various
blocks.
Jobo, who knew that he himself was regarded
as a mpimpi, f led to a room in block 5, where he
remained.
Accused No 6 denied the evidence against him.
He testified
that he was playing cards in his room,
which is room 47 in block 2, with three others:
Sam,
Petrus and Edward Mafaisa.
The latter was called as a
witness on his behalf, as I have mentioned. The

60
evidence of both accused No 6 and Mafaisa was to the
ef f ect that the people in the room were unaware of
anything out of the ordinary happening in the compound,
until
a policeman, one Quenene, who lived next-door,
came into the room and said (I quote from Mafaisa's
evidence): "Gentlemen, why are you playing cards?
Don't you know what is going on outside?
You should
not be playing when
such things are going on here".
Accused No 6 and Mafaisa said that they and the other
two card-players then left room 47 and went to stand
outside it.
Both of them saw a crowd of people moving
from the kitchen towards block 1 and that smoke was
billowing from block 1, and both of them heard a lot of
noise, such as of people shouting and
running about,
emanating from behind block 1 (i e from its front).
They stood in front of their room until the security
vehicle ("Hippo") arrived in the compound.
Accused
No 6 at first said that they stood there for a long
time before the security force arrived, but in cross-

61
examination he changed his evidence and said that the
vehicle arrived almost immediately, or shortly, after
they had left their room to go outside.
Mafaisa's
evidence was to the effect that the vehicle arrived
within a short space of time after they had gone
outside.
On the arrival of the vehicle the people
outside the hostel dispersed and both accused No 6 and
Mafaisa went to bed.
The purport of the evidence of accused No 6
and Mafaisa is clearly that the attack on room 12 and
its occupants had taken place while they were playing
cards in room 47 and had been concluded by the time
that they left their room and went outside, and that
they were conseguently unaware of it at the time when
it occurred. In my view their evidence in this
respect is extremely unlikely.
As mentioned earlier,
room 47 is situated in block 2, almost exactly opposite
room 12 in block 1.
At that place blocks 1 and 2 are
close to each other.
Due allowance must be made for

62
the facts that the rear portions (the sleeping
quarters) of the two rooms faced each other, that the
windows of room 47 may have been closed, and that a
portion of the ablution block intrudes into the space
between the two rooms. But even doing so, having
regard to the nature of the events that were happening
at room 12, as described earlier, and having regard to
the close proximity of the two rooms to each other, I
find it very difficult to believe that the occupants of
room 47 would not have heard the commotion that was
being created at room 12.
To assess whether, in spite
of the strong inherent improbablity of their evidence,
it can still gualify as being reasonably possibly true,
reguires that it be weighed up against the evidence of
Modise and Jobo.
Neither Modise's nor Jobo's evidence
regarding their observations of accused No 6's conduct
in the vicinity of blocks 4 and 5 can be subjected to
any valid criticism. They made their observations

63
from different vantage points and independently of each
other, yet their descriptions of the manner in which
accused No 6 acted tally in all material respects.
The fact that Jobo saw a stick in accused No 6's hand
while Modise did not, is not, I consider, of any
consequence, for it cannot sustain an inference
that
either or both of them were untruthful or unreliable in
regard to the acts alleged by them to have been
performed by accused No 6. The important
consideration is that, having regard to their
opportunities for observation, the nature of the
evidence given by each, and the fact that accused No 6
was well known to them, there is no real room f or
theorizing that either was mistaken in his evidence as
to the accused's presence in that vicinity or the
manner in which he acted. That being so, the only
basis upon which their evidence can be assailed is by
postulating that they conspired falsely to implicate
accused No 6. Such a possibility is extremely

64
unlikely, in view of the
nature of the evidence given
by each of these witnesses, as summarized above;
the
improbability of either or both having concocted a
false story of the kind told by them, in order to
implicate accused No 6, is so obvious that it needs no
further elaboration.
In my judgment, reviewing the totality of the
evidence of Modise and Jobo on the one hand, and that
of accused No 6 and Mafaisa on the other, in the light
of the considerations discussed above, it is not a
reasonable possibility that the evidence of the former
two witnesses was false and that of the latter two
witnesses was true.
It follows that the State proved
beyond reasonable doubt that accused No 6 performed the
acts attributed to him by the State witnesses.
It does not follow, however, from what was
proved against accused No 6, that he was guilty of four
murders and one attempted murder, as was found by the
trial Court.
Indeed, with respect to the trial Court,

65
when one considers the evidence against accused No 6,
the verdicts recorded against him are so startling that
it is patent that the Court must have fallen into error
in its reasoning.
The error committed by the trial
Court is to be found in the manner in which it applied
considerations of common purpose to the case of accused
No 6, as I shall now endeavour to show.
It would appear from the judgment of the
trial Judge (paragraph (2) of the quotation given
earlier) that the trial Court might have based its
decision on a finding that there had been a prior
agreement between the accused to kill the mpimpi's, i e
the team leaders.
There was, however, no evidence to
substantiate such a finding. The attack which
resulted in the killing or wounding of team leaders was
confined to room 12 and its occupants.
Consequently
any enquiry into common purpose must be directed at the
events that occurred there. As far as accused No 6
is concerned, there is nothing in the evidence to show

66
that he had agreed that the inmates of room 12 were to
be assaulted.
There is no suggestion of an express
agreement and there is no proof of an implied
agreement.
As to the latter, the acts that accused
No 6 was proved to have committed in the vicinity of
blocks 4 and 5 do not give rise to an inference beyond
reasonable doubt that he had agreed with any other
person that the occupants of room 12 were to be killed.
At the time when, and at the place where, accused No 6
participated
in the activities of the group who were
calling for mpimpi's to be killed, those activities
constituted no more than threats and intimidation,
which had not reached any stage of actual execution, as
we know from what happened in room 108, and it would be
too much of a leap in time and place to infer from
those events that accused No 6 had agreed to the events
that occurred at room 12.
In the absence of proof of a prior agreement,
accused
No 6, who was not shown to have contributed

67
causally to the killing or wounding of the occupants of
room 12, can be held liable for those events, on the
basis of the decision in S v Safatsa and Others 1988
(1) SA 868 (A) , only if certain prerequisites are
satisfied.
In the first place, he must have been
present at the scene where the violence was being
committed.
Secondly, he must have been aware of the
assault on the inmates of room 12.
Thirdly, he must
have intended to make common cause with those who were
actually perpetrating the assault.
Fourthly, he must
have manifested
his sharing of a common purpose with
the perpetrators of the assault by himself performing
some act of association with the conduct of the others.
Fifthly, he mus.t have had the requisite mens rea;
so,
in respect of the killing of the deceased, he must have
intended them to be killed, or he must have foreseen
the possibility of their being killed and performed his
own act of association with recklessness as to whether
or not death was to ensue. (As to the first four

68
requirements, see Whiting, 1986 SALJ 38 at 39.)
In
order to secure a conviction against accused No 6, in
respect of the counts on which he was charged, the
State had to prove all of these prerequisites beyond
reasonable doubt.
It failed so to prove a single one
of them.
It follows that the appeal of accused No 6
must succeed in respect of all 5 counts.
Accused No 6 cannot go scot-free, though
(unlike accused No 7).
In my view the facts proved
against him show that he committed the crime of public
violence. He actively associated himself with a
large group of people who were intentionally and
unlawfully
threatening forcibly to disturb the public
peace and to invade the rights of others and who were
actually carrying out the threats to the extent of
gaining forcible entry to a number of rooms occupied by
team leaders and in one instance assaulting the
inhabitants of such a room. Although the one

69
instance of actual assault which was proved was of a
minor nature, it is clear, in my judgment, that the
threats that were uttered and the general manner of
behaviour of the group were of sufficiently serious
dimensions to constitute public violence.
It is also
clear that accused No 6 actively identified himself
with the activities of the group by participating
therein. A conviction for public violence is
competent on a charge of murder and in my judgment such
a conviction is warranted against accused No 6.
The
guestion of an appropriate sentence to be imposed in
respect of such conviction will be considered later.
The subject of common purpose, with which I
have just dealt
in relation to accused No 6, arises
pertinently also in the case of accused No 2.
It will
be convenient, therefore, to consider the case of
accused No 2 now.
The State case against accused No 2 rested on
the evidence of Makepies.
I recounted earlier how

70
Makepies fled from his room in block 5 and how he found
himself a hiding place in the building complex to the
east of block 1 .
I take up his evidence from there.
As he was standing in his hiding place, a man came
running into an open space, a kind of courtyard, which
was well lit and on which Makepies had a clear view.
This man later turned out to be Edward Masiane, the
deceased in Count 1.
In the present context I shall
refer to him simply as the deceased.
The deceased was
being pursued by another man, whom I shall call the
unknown assailant.
As Makepies watched, the deceased
stopped, turned around and tried
to grab hold of his
pursuer, the unknown assailant.
The latter dealt him
a blow, and then a second blow, with a weapon that
Makepies could not identify, but which, he said, was a
shiny object. After the second blow the deceased
fell to the ground.
As he was lying on the ground the
unknown assailant dealt him some more blows.
At this
stage Makepies noticed another man approaching,

71
apparently from a northernly direction but in any event
(this is quite clear) from a direction and through a
passage-way completely different from whence the
deceased and the unknown assailant had come. This
man came towards where Makepies was standing.
Makepies did not
say whether he was then walking or
running. The man then stopped and turned around and
walked in the direction where the deceased and the
unknown assailant were.
He walked past Makepies at a
distance of a couple of paces.
Makepies recognized
him as accused No 2.
Accused No 2 walked up to the
place where the deceased was lying prostrate on his
back. By now the unknown assailant had ceased his
assault on the deceased and was standing to one side.
Accused No 2 looked at the deceased and then proceeded
to deal him a number of blows.
He held an object in
both his hands, which Makepies could not identify, and
with up and down movements he struck the deceased.
The blows landed on the deceased's head and the upper

72
part of his chest. A third person (i e apart from
the unknown assailant and accused No 2) then appeared ón
the scene. These three men stood there awhile and
then left together.
After they had left, the deceased
crawled away for some paces, up to the place where he
was later found dead.
Accused No 2 testified, denying any
involvement in the attack upon the deceased.
However,
in the Court a quo junior counsel who appeared for all
the accused conceded that accused No 2's evidence was
worthless, and in this Court senior counsel
representing the accused abided by that concession.
Apart from saying that the record shows that the
concession was fully
justified and was very properly
made, I need not refer further to the evidence of
accused No 2.
Makepies's evidence was the sum total of the
State case against accused No 2.
As in the case of
accused No 6, the trial Court's startling conviction of

73
accused No 2 on four counts of murder and one count of
attempted murder is attributable to a wholly
unwarranted
application of considerations relating to
common purpose.
Nothing in Makepies's evidence can
justify a finding of common purpose between accused No
2 and the mob who launched the murderous attack on the
occupants of room 12.
I need not traverse the same
ground as I did when dealing with the case against
accused No 6. Suffice it to say that the
prerequisites for holding accused No 2 liable for what
happened in room 12 cannot be suggested to be satisfied
except on the basis of pure conjecture.
Nor does
Makepies's evidence afford a foundation for finding
accused No 2 guilty of the murder of the deceased in
Count 1 alone.
From the medical evidence concerning
the injuries sustained by this deceased and the cause
of his death, as set out earlier in this judgment, it
is clear that the fatal injuries must have been
inflicted upon the deceased either by the unknown

74
assailant or by some other person before the deceased
ran into Makepies's view.
At best for the State, the
unknown assailant dealt the deceased the two stab
wounds in his back, which caused his death. The
injuries that accused No 2 inflicted upon the deceased,
as appears from Makepies's evidence, were located
in
the region of his head and upper chest, and the medical
evidence shows that these
did not cause or contribute
causally to the deceased's death. In order to hold
accused No 2 liable for the deceased's death,
therefore, the State was required to prove that there
was a common purpose to kill between accused No 2 and
the unknown assailant.
But Makepies's evidence does
not justify such a finding.
Makepies did not say that
accused No 2 saw, or must have seen, the deceased being
assaulted by the unknown assailant.
A careful perusal
of Makepies's evidence reveals that it does not exclude
a reasonable possibility that when accused No 2 first
saw the deceased lying prostrate on his back the

75
unknown assailant had already ceased his assault and
had stood back from where the deceased was lying.
Accordingly there is a reasonable possibility that when
accused No 2 approached the deceased he was unaware of
the nature of the assault that had been perpetrated on
the deceased, and that he was unaware that the deceased
had been fatally injured.
Conseguently there is no
room for a finding beyond reasonable doubt that accused
No 2, by assaulting the deceased in the manner in which
he did, was making common cause with the unknown
assailant
or was actively associating himself with a
murderous attack on the deceased.
On the same basis,
the State failed to prove the requisite mens rea on the
part of accused No 2 to justify his conviction for the
murder of the deceased.
It follows that accused No 2's appeal must be
allowed in respect of all of the 5 counts on which he
was convicted. He is liable, however, for his own
assault, as such, cm the deceased in Count 1.

76
Although I have found that it is a reasonable
possibility that he did not know that the decéased had
been fatally injured, I consider that an inference is
justified, beyond reasonable doubt, that he was aware
that the deceased had been injured seriously enough to
cause him to be lying on his back in an apparently
helpless condition.
That being so, the proper verdict
in his case, in my judgment, is that he is guilty pf
assault with intent to cause grievous bodily harm.
The sentence to be imposed on him for this conviction
will be considered later.
I turn now to the case of accused No 1.
The
State evidence against him is overwhelming.
To begin
with, there can be no doubt that he was the "senior
man" amongst the shaft stewards, as one State witness
put it, and that he was in fact their leader. Many
State witnesses testified to this fact and they were
not challenged on it in cross-examination. On the
contrary, it was specifically put to the witness Daniel

77
Nkofu in cross-examination on behalf of accused No 1
that accused No 1 was the leader of the Union at that
shaft of the mine, and the witness agreed.
In another
passage of his evidence Nkofu said that it was not the
Union, as such, that wanted to kill the mpimpi's, but
its leader, accused No 1.
In his own evidence accused
No 1 attempted to convey the impression that he was
just an ordinary shaft steward and that he did not
occupy any particular position amongst his colleagues,
but he was obviously being untruthful in this regard.
As to the meetings held before 18 February 1986, at
which accused No 1 made speeches calling for the
killing of the team leaders, the mass of the State
evidence against accused No 1 is so weighty that his
denial of it must be rejected as being false beyond
reasonable doubt.
As to the events in the compound on the night
in question, as I have mentioned before, seven of the
State witnesses saw accused No 1 taking part in those

78
events at various places in the compound.
Most of
them observed him to be the leader of a group of men
who were marching through the compound, dancing and
singing songs calling
for the mpimpi's to be killed.
A few examples will suffice.
On the first occasion
when a group of people moved past room 12, from the
kitchen towards block 8, Nhone saw accused No 1 in the
vanguard of that group, wearing a yellow skipper with a
picture on it of a man holding his fist aloft, and
Nkuatsana described accused No 1 as the leader of that
group; he was dancing and singing the songs which
Nkuatsana heard, as described earlier.
When Qhalisile
came across the singing group of Union men between
blocks 3 and 4, as described earlier, accused No 1 was
their leader and he was waving his clenched fist in the
air.
Motjoli said that accused No 1 was constantly
in front of the singing group that he encountered, as
described earlier, and that he was leading them on.
With regard to the crucial events at room 12,

79
two of the State witnesses directly implicated accused
No 1 in participating in the attack.
Daniel Nkofu was
standing talking to some men in front of block 1, in
the vicinity of room 5, which is close to the passagéway
nearest to the kitchen.
He saw and heard a group
of singing men moving towards room 12.
There they
stopped and some of them started to throw stones at
room 12. Nkofu went up the stairs next to the
passage-way where he had been standing, to the top
floor of block 1 . There is a balcony on the top
floor, extending for the length of the building along
the front of the top rooms.
Nkofu walked along the
balcóny to a point almost directly above room 12, where
he stood and observed what was taking place below him.
There was a large group of men in front of room 12.
Stones were being picked up and hurled at room 12,
shattering the window panes. Nkofu saw accused No 1
at the head of the group of stonethrowers.
There was
an orange-coloured chair next to him.
Nkofu saw him

80
picking up this chair and hurling it at room 12.
Then
a fire broke out in the room.
Nkofu went down the
stairs to the back of the room, where he saw flames
emerging from the room. He also saw Boy, the
deceased in Count 2, climbing out of the back window of
room 12.
Amongst the many people at the back of the
room was accused No 5 (now deceased).
He saw accused
No 5 coming to the fore and felling Boy with a single
blow, whereupon many men set upon him and assaulted
him. Nkofu left the scene to report at the
"hospital" (he was referring to the medical station, I
am sure) what he had seen and to say that he had not
been injured in the attack on room 12 (it will be
remembered that he resided in that room). The
following morning, when he went to collect his
belongings, he noticed that the orange chair that
accused No 1 had
thrown at the room, was inside the
room, partly
burnt out.
Ephraim, as mentioned earlier, went to room

81
12 after he had witnessed the prior events at and in
the vicinity of room 108 in block 4.
He saw a crowd
of people covering the open area between room 12 and
the entrance gate, many of whom, he said, were merely
spectators.
He himself moved through the throng and
took up a position near the front of room 11, right
next to room 12. He saw a man dressed in a white
overall lying on the ground in front of room 12.
From other evidence, which I do not propose to detail,
it can safely be accepted that this was accused No 8
(who was acquitted), who had earlier formed part of the
group of men that had been active in the vicinity of
block 4, and who sustained an injury in front of room
12, causing him to fall down there. Ephraim then saw
accused No 1 , whom he described as "ons leier by the
unie", standing on the stoep in front of the door of
room 12. Accused No 1 was shouting: "Moet net nie
mekaar beseer nie".
After that he saw that accused
No 1 opened the front window of room 12 by lifting it

82
upwards. While the window was being held open, a
number of men took an orange-coloured chair and thrust
it through the open window to the inside of the room.
Then a match was lit and thrown into the room, by one
of the groupwhichhad caused the chair to be thrown into
the room. Accused No 1 was part of that group. A
fire immediately flamed up in the room.
According to
Ephraim, he then gained the clear impression that
people were now being killed ("daar word nou
doodgemaak").
He left the scene and returned to his
room. I should add that Modise also witnessed the
orange chair being thrown into the ropm, after which a
flame shot up, but he did not see accused No 1 taking
part in that activity.
Armando Eias, as mentioned earlier, was on
duty as a mine policeman at the entrance gate. He
heard a singing group of people roving through various
parts of the compound.
He saw them as they went from
the direction of block 8 towards block 1. At room 12

83
he heard the sounds of an attack being launched against
that room.
He went into a telephone booth and called
a person to whom he referred as "the clerk on duty", to
report the matter.
He returned to his post and then
saw flames emanating from room 12.
He then returned
to the telephone booth to make a second call. Room 12
was now on fire.
He saw two men emerging from the
crowd in front of the room, running towards the
entrance gate.
They passed him, while he was still
busy with his call, and left the compound, running,
through the pedestrian gate.
The one man was accused
No 1, who was known to him as the leader of the Union,
and the other man was known to him as Colbert.
Almost
immediately after these two
had gone through the gate,
as Elias came out of the telephone booth, he saw that
the crowd in front of room 12 were scattering, people
running away in all directions. Elias himself fled
from his post.
Accused No 1, as mentioned before, denied

84
that he was in the compound at all during that evening;
his alibi was that he spent the night with Colbert
Mtjelwa, whom he called as a witness in support of the
alibi.
Accused No 1's evidence was unsatisfactory in
major respects.
For instance, as to the reason why he
was not in the compound: his case, as put to the State
witness Pollack, was that he was afraid of spending the
night in his room because he apprehended that violence
would erupt as a result of the gathering of weapons by
the team leaders; but when he came to testify, he
denied that there was tension in the compound and his
explanation of how it came about that he went to
Mtjelwa's house reveals no trace of a suggestion that
he did
so because of fear of violence breaking out.
But I do not propose to examine the criticisms that can
be levelled at the evidence of accused No 1, nor that
of Mtjelwa. The simple fact of the matter is that
their evidence cannot possibly be true, in view of the
overwhelming weight of the State evidence. Having

85
regard to the broad canvas of the picture painted by
the State witnesses, of which I have reproduced only
scattered parts, it is quite inconceivable, in my
judgment, that accused No 1 was falsely implicated in
the events of the evening.
In view of the nature of
the evidence given by each of the State witnesses, the
fact that all of them, bar Elias, were team leaders, is
of no consequence, and the evidence of the odd man out,
Elias, is ultimately the final straw in the total
destruction of the alibi of accused No 1 and his
witness Colbert Mtjelwa.
It follows that accused No 1's criminal
responsibility for the events that occurred inside room
12 must be assessed on the basis of the State evidence
against him, as set out above. Accepting as a
reasonable possibility that accused No 1 did not
himself enter the room or inflict injuries on any of
the deceased or on Nhone, I have no doubt that the acts
of the members of the mob who did inflict such injuries

86
within the room must be attributed to accused No 1 and
that he is criminally liable for the results of those
acts as if he had committed them himself. All the
prerequisites for holding him liable on the basis of a
common purpose between himself and the perpetrators of
the assaults in the room, as enumerated earlier in
relation to the case of accused No 6, are satisfied
beyond reasonable doubt. Accused No 1 actually led
the mob in the attack against room 12 and its
occupants, the object of which undoubtedly was to kill
the occupants.
Accused No 1's active association with
the murderous attack of the mob is manifest, and it is
equally clear that he had the requisite mens rea in the
form of dolus directus.
It was argued on behalf of accused No 1 that
he had dissociated himself from the mob violence before
the commencement of the physical assault on the
occupants themselves inside the room.
In my opinion
there is no substance in this argument.
Two pieces of

87
evidence were relied upon in support of it. The
first was Ephraim's evidence that accused No 1 shouted:
"Moet net nie mekaar beseer nie" . In my view this
exhortation was clearly related to the fact that
accused No 8, who was part of the group outside the
room, had been accidentally injured.
Accused No 1's
warning
could not possibly have been directed at the
occupants of room 12, for immediately afterwards he was
a party to the pushing of a chair into the room and the
setting alight of a fire inside it.
The second piece
of evidence was Elias's statement that accused No 1
and Colbert Mtjelwa were the first to run away from the
room and that they went out of the gate while the
witness was still in the process of reporting the fire.
It suffices
to say, in my view, that this evidence,
having regard to the context of the evidence as a
whole, does not bear out the argument.
What has been said above regarding the
imputing to accused No 1 of the assaults committed

88
inside the room applies to the victims in Counts 3, 4
and 5. It follows that the appeal of accused No 1
must fail in respect of his convictions for murder on
Counts 3 and 4 and for attempted murder on Count 5.
Different considerations come into play, I
consider, in regard to Counts 1 and 2.
In respect of
Count 1 it must be accepted as a reasonable possibility
that the deceased
in that count, Edward Masiane, had
not been fatally injured before he succeeded in
escaping from the room, and that his death was caused
by the injuries inflicted on him by the unknown
assailant in the scene witnessed by Makepies in the
building complex to the east of blóck 1, as described
earlier.
It is possible, and indeed not improbable,
that the unknown assailant had been one of the
murderous mob at room 12 and one of those whom
Nkuatsana saw pursuing the deceased
in Count 1 as he
was fleeing, but in my opinion that is not the only
reasonable inference to be drawn from the evidence.

89
The place where this deceased's body was found was some
hundreds of metres away from room 12. I cannot
exclude a reasonable possibility that the unknown
assailant, having come across this deceased fleeing
from the mob, decided to engage upon a venture of his
own by pursuing the deceased and killing him.
On this
footing accused No 1 cannot, in my
judgment, be held
criminally responsible for the death of this deceased.
Inherent in the concept of imputing to an accused the
act of another on the basis of common purpose is the
indispensable notion of an acting in concert. From
the point of view of the accused, the common purpose
must be one that he shares consciously with the other
person. A "common" purpose which is merely
coincidentally and independently the same in the case
of the perpetrator of the deed and the accused is not
sufficient to render the latter liable for the act of
the former.
In my judgment, therefore, accused No 1's
appeal against his conviction for murder cm Count 1

90
must be allowed.
On the same line of reasoning I have reached
the same conclusion in regard to Count 2, albeit with
some hesitation, for there the position is less clear.
The deceased in this count, Boy, was killed where his
body was found later, roughly 50 metres away from room
12, at the back of block 1. I described earlier how
Nkofu witnessed his killing, after having been struck
down by accused No 5.
Nhone said that the group which
came from the direction of block 8 split into two, one
part going to the front of room 12 and the other to the
back of it,/ and the trial Court found as a fact that
that is what happened.
In my opinion, however, the
State did not prove beyond reasonable doubt that the
mob at the front and the mob at the back of the room
were but two sections of one crowd acting in concert.
Nhone's evidence on the point seems to rest on mere
conjecture.
Nkuatsana's evidence that he saw a group
of men approaching from the direction of block 2 when

91
he escaped through the rear window, suggests the
possibility that the group at the back of block
1 were
men acting on their own, independently of those in
front of the room.
The evidence as a whole certainly
does not show conclusively that there was only one
group of trouble-makers marauding around the compound.
It is true that accused No 5, who commenced the attack
on this deceased, was seen at an earlier stage, when
the stone-throwing commenced, at the front of room 12,
by the witness Tshiame, but it does not necessarily
follow from that fact that the groups at the front and
at the back were acting in concert and not
independently. It is a border-line situation, in
which I think accused No 1 should be given the benefit
of the doubt. I would therefore uphold his appeal
against the conviction for murder on Count 2 also.
The discussion above of the position of
accused No 1 in respect of Counts 1 and 2 has been
based on considerations relating to liability
founded

92
on common purpose.
For the sake of clarity I should
add that I have given consideration to the question
whether accused No 1 could be held responsible for the
deaths of the deceased in these counts, apart from
considerations relating to common purpose. I think
not. I would merely say that, in my judgment, the
facts of this case are distinguishable from those dealt
with in the majority judgments in S v Nkombani and
Another 1963 (4) SA 877 (A) and from those dealt with
in the judgments of JANSEN JA and VAN WINSEN AJA in S v
Daniëls en 'n Ander 1983 (3) SA 275 (A) at 330-333 and
312-314 (contra per TRENGOVE JA at 324-325 and per
NICHOLAS AJA at 302-304).
From the finding that accused No 1 is not
guilty of the murder of the deceased in Counts 1 and 2
it does not follow, however, that he has not committed
any crime in respect of those deceased. In my
judgment he is guilty of attempted murder on these
counts. From the nature of the attack upon room 12

93
and its occupants, and in the absence of any acceptable
evidence to the contrary from accused No 1, the
inference is justified beyond reasonable doubt, I
consider, that the murderous attack of the mob, with
which accused No 1 associated himself, was directed at
the killing of all the occupants of the room at the
time.
There is no foundation for surmising that, if
the deceased
in Counts 1 and 2 had not succeeded in
making good their escape from the room, they would not
have been killed.
Consequently a verdict of attempted
murder should be
brought in against accused No 1 on
Counts 1 and 2.
The matter of extenuating circumstances in
the case of accused No 1, with regard to Counts 3 and
4, and the sentences to be imposed on him in regard to
the other counts, will be considered later.
I turn next to the case of accused No 3.
Two of the State witnesses testified that he
participated in the attack on room 12 and its inmates.

94
One was Nkuatsana.
Earlier in this judgment, when I
summarised his evidence, it was mentioned that he saw
inflammable glue being applied to the door of room 12,
which was then set alight, and that a motor car tyre
was taken to the front of the room, where petrol or
paraffin was poured over it and it was then set alight
and pushed through the window into the room.
Nkuatsana testified that the man who performed these
acts was accused No 3.
The other witness was Modise.
When he arrived at the scene (he intended leaving
the compound through the entrance gate), he found a
huge crowd of people in the area between room 12 and
the entrance gate.
Caught up in the crowd, he stood
and watched what was happening at room 12.
He saw an
orange-coloured chair being pushed into the room (as
has been mentioned before) and that flames arose inside
the room. Thereafter he heard people talking of a
tyre and petrol.
He saw accused No 3 fetching a tyre,
which he took to the front of room 12.
Something was

95
poured onto the tyre, it was set alight and thrown into
the room.
Because of the throng of people in front of
the room, Modise could not see who took part in these
acts;
he did not see accused No 3 participating in
them. After the burning tyre had been pushed into
the room, there was "groot rook, groot vlamme".
Modise fled.
It will be seen from the above summary
of the evidence of Nkuatsana and Modise that the
feature which is common to their observations as to the
conduct of accused No 3, is that he took a tyre to the
front of room 12. There is, however, a serious
conflict in their evidence as to where the tyre was
fetched from by accused No 3.
I shall deál with this
conflict in a moment.
It will be convenient first to
refer to the evidence of accused No 3.
The gist of accused No 3' s evidence was as
follows.
He was a shaft steward and he lived in room
10, block 1, i e one room removed from room 12. He
knew most of the inhabitants of room 12 very well, and

96
he was accustomed to playing cards with some of them.
There were no feelings of animosity at all between
himself and any of the residents of room 12.
During
the afternoon of the day in question he left the
compound in the company of one Vincent, to see the
regional chairman of the Union at shaft No 1 of the
mine, in connection with the events that had taken
place in the compound the day before, as related
earlier. They returned to the compound in the
evening.
As they entered the compound, he noticed a
group of men moving along block 8, going into some of
the rooms there.
He saw no signs of unrest or any
commotion, and no people in front of, or near, his
room.
At the suggestion of Vincent, he accompanied
him to his room, which was room 59, block 2.
He saw
people walking up and down, talking, coming from the
other blocks.
He stayed for some time with Vincent in
his room. He then heard a noise; he said: "It was
quite a din". He left Vincent' s room and went

97
towards his own. As he approached it he saw "a
multitude of people".
He turned back and returned to
then saw a group of men running past in front of block
3. He heard a security siren from the kitchen area.
After a while he went to his room again, and found many
security vehicles parked there. He denied the
evidence of Nkuatsana and Modise in so far as it
implicated him in the events at room 12.
At first sight it appears to be unlikely that
accused No 3 would not have investigated further what
was happening in the vicinity of his room when he saw
the crowd of people there, after having heard the
"din".
But he gave an explanation for his apparent
lack of interest, in response to questions put to him
by one of the assessors, right at the end of his
evidence.
He said that when he saw the mob of people
in front of room 12, he was upset;
he considered the
possibility of going there in order to try and defuse

the situation; but when he looked at the crowd there
("maar toe ek die groep so aangekyk het"), he came to
the conclusion that it would not be advisable or safe
for him to do so.
In my opinion his explanation is
not unacceptable. In the course of his crossexamination
he occasionally became confused and
contradicted himself, particularly in regard to the
reason for his visit to the regional chairman.
On the
whoie, however, he was not shaken in regard to his
movements in the compound that evening, and his
evidence in that connection was not inherently
improbable so as to render it suspect. In one
collateral aspect of his evidence, I consider, he was
untruthful: he admitted that he invariably acted as
interpreter for accused No 1 at the Union meetings, but
he denied that any threats were ever uttered against
team leaders and he even denied ever having heard the
word "mpimpi".
In my view this part of his evidence
must be rejected as false.
But it does not follow,

99
of course, that the rest of it was. To assess
whether his denial of involvement in the events at room
12 could reasonably be true, his evidence must be
weighed up against that of Nkuastsana and Modise.
I revert, then, to the conflict in the
evidence of the two State witnesses as to the place
from where accused No 3 fetched the tyre.
In brief,
the conflict was this.
Modise, who testified first,
said that accused No 3 fetched the tyre from a storeplace
which was used by the Shangaans for the storage
of their belongings, and which was situated close to
the entrance gate, being part of the line of small
buildings and structures to which I referred earlier,
as stretching for a short distance south-eastwards from
the gate.
When Nkuatsana came to testify, Modise's
evidence on this point was put to him and he flatly
denied it;
he was adamant that the tyre had not been
fetched from the store-place indicated by Modise (which
was well known to him).
His evidence was explicit:

100
the tyre was fetched from a quite different spot,
namely a small store-place in front of room 12 and very
close to it.
Now on the face of it this discrepancy
in the evidence of the two witnesses does not appear to
be of any consequence.
It is a matter of frequent
experience that two witnesses who have observed the
same events differ in their evidence in regard to the
details of what they observed, simply because human
nature is such that people do not take notice of, or do
not remember, the same details of the events witnessed
by them. More often than not discrepancies as to
details do not detract from either the credibility or
the reliability of the witnesses in regard to the
central occurrence observed and testified to by them.
The present case affords numerous examples of such a
situation.
One has been mentioned in discussing the
case of accused No 6, where one witness said he was
holding a stick and the other said he was not.
Another, of a similar nature, will be mentioned below

101
in regard to the case of accused No 4.
Others, I have
not thought of sufficient
importance to mention, or,
where they have appeared
from the summaries given of
the evidence of various witnesses, to discuss.
But
in the case of the conflict between Modise and
Nkuatsana which is now being examined, the position
seems to me to be different, as will appear from what
follows.
The store-place from which Nkuatsana said the
tyre was taken by accused No 3 was, as I have
mentioned, very close to room 12.
It appears from
the record that when Nkuatsana was making this
observation as to accused No 3's movements, he was
standing 8 metres away from room 12.
He was emphatic
in his evidence that when accused No 3 fetched the tyre
he did not in fact leave the group of men who were
directly in front of room 12. On his evidence,
therefore, the tyre was fetched by accused No 3
practically from right in front of him. On his

102
evidence, it is simply not possible that accused No 3
could have gone about 50 metres away to the entrance
gate, to fetch the tyre.
Modise, on the other hand,
was standing at the second cluster of trees to the
south-east of room 12, as described earlier, when, as
he said, he first saw accused No 3, who was then
running
past him to the Shangaan store-place next to
the entrance gate.
It appears from the record that
the cluster, of trees where Modise was standing is about
25 paces away from room 12. On Nkuatsana's evidence,
Modise would not have seen accused No 3 at all.
On
Modise's evidence, Nkuatsana's evidence cannot be true.
There is no way in which the evidence of the two
witnesses can be reconciled; the two versions are
mutually destructive.
Nor is there any way in which
the common feature of the evidence, viz that accused No
3 fetched a tyre, can be extricated from the rest of
the evidence, as being the one fact that can safely be
accepted as true.
The reason why this cannot be done,

103
in the peculiar circumstances of this situation, is
that the manner (being directly related to the place)
of the fetching of the tyre is an integral, inseparable
part and parcel of the description of each of the
witnesses regarding the very participation of accused
No 3 in the events.
Moreover, there is no way in
which the evidence of the one witness can be preferred
to the evidence of the other.
Nor, in my view, is
there room for a genuine mistake on the part of either.
The inevitable result is that a shadow of doubt is cast
over both witnesses' account of the involvement of
accused No 3 in the events.
This doubt is heightened
by two further considerations.
The first is that no
other witness made any mention of a tyre being used in
the attack on room 12.
The second is that there was
no evidence that the remains of a burnt-out tyre were
found in room 12. One would have expected police
evidence about that, had it been a fact. In all
these circumstances, the State case against accused No

104
3 is materially defective.
Weighing up the evidence of accused No 3
against the evidence of Nkuatsana and Modise, my
conclusion is that accused No 3's denial of complicity
in the events could reasonably possibly be true.
He
is entitled to the benefit of the doubt.
It follows that the appeal of accused No 3
against his convictions and sentences on all 5 counts
must be allowed.
I turn, finally, to the case of accused No 4.
The evidence against him was brief but vivid.
It was
given by two witnesses: Tshiame and Motjoli. After
Tshiame had watched the group of people moving from
room to room in block 4, as described earlier, and they
had left, going around block 3, he saw accused No 4,
who came running from block 5.
He was clad in a pair
of under-pants and had a counterpane draped over his
shoulder. In one hand he held a kierie and an
assegai.
He ran in the direction of the kitchen, but

105
then turned and ran in the direction of block 1 .
Tshiame, as has been mentioned, then went to block 1
himself, where he stood and watched the crowd in front
of room 12.
Amongst the crowd he again saw accused
No 4. He was one of the stone-throwers. He still
had the kierie and the assegai in his one hand.
Tshiame saw him throwing stones with his other hand at
the window of room 12.
Tshiame then left the scene.
Accused No 4 was next seen by Motjoli, who was standing
at block 3, room 77.
Motjoli saw accused No 4, coming
from the direction of block 1, and running through the
passage-way through block 2, nearest to the kitchen.
At that stage Motjoli had already observed a cloud of
smoke billowing up from room 12. Accused No 4 ran
past him, where he was standing.
He had a bed-sheet
draped over his shoulder and he had two kieries with
him. As he ran past Motjoli, he shouted: "Ons het
hulle klaar gemaak, die mpimpi's".
He then ran back
in the direction of block 1.

106
Accused No 4 denied the evidence against him.
His evidence was very brief. He said that he was
asleep in his room, which was room 89 in block 3.
Before he had gone to bed, he had heard or seen nothing
out of the ordinary in the compound.
He was awakened
by a noise of people shouting.
He went outside and
walked towards the kitchen. He saw many people
running, being chased by security officials.
He ran
back to his room and went to sleep.
He was a member of
the Union and had attended meetings addressed by
accused No 1, but he had never heard threats being made
against team leaders, and he had never heard the word
"mpimpi" before the trial.
Because of the nature of
accused No 4's evidence, there was very little scope
for counsel for the State to cross-examine him.
His
evidence was challenged in cross-examination, but
nothing of consequence emerged from it.
Although there is nothing intrinsically
rejectable in the evidence given by accused No 4, his

107
denial of the State evidence against him cannot, in my
judgment, be true, as a reasonable possibility.
It
must be weighed up against the evidence of Tshiame and
Motjoli.
It is not a reasonable possibility that they
conspired falsely to implicate accused No 4; the
nature of their evidence rules that out. Nor do I
consider
it to be a reasonable possibility that they
could have been mistaken in the observations to which
they testified.
The fact that the one saw accused No
4 carrying a kierie and an assegai, and the other saw
him with two kieries, is of no consequence, in view of
their evidence as a whole. There is no need to
elaborate cm this, because of what I have said earlier
about discrepancies of this kind.
The two witnesses
saw him in different places and at different times, and
yet their evidence as to his conduct forms a composite
picture with a very forceful impact of truthfulness and
reliability.
In my assessment it must be accepted as
true beyond reasonable doubt.

108
On the basis of the evidence of Tshiame and
Motjoli it is clear, in my opinion, by way of necessary
inference, that accused
No 4 made common cause with
those who inflicted
the injuries on the occupants of
room 12 and that he is criminally responsible for the
results thereof.
He actively associated himself with
the attack by throwing stones at the window of room 12.
The notional possibility that his participation in and
association with the assault on the inmates of the room
may have ceased after the stone-throwing, is ruled out
by his remark to Motjoli.
The fact that the room had
already been set alight by the time that he left the
scene and ran past Motjoli, proves that he was aware of
the murderous nature of the attack when he shouted the
remark to which Motjoli testified.
On the face of it,
there was nothing ambiguous about that remark.
In
the absence of anything to suggest the contrary, he
must have intended to include himself in the use of the
word "ons", in relation to the fact that the mpimpi's

109
had been "finished of f ";
and the word "klaargemaak",
in the circumstances preceding and then prevailing,
again in the absence of anything to suggest the
contrary, can only be taken to have meant that the
mpimpi's in room 12 had been killed. The only
reasonable inference that can be drawn from his remark
is that he had not only associated
himself with the
killing, but also that he had the necessary
mens rea
to sustain convictions for murder and attempted murder.
It follows that accused No 4's appeal against
his convictions on Counts 3, 4 and 5 must be dismissed.
In regard to Counts 1 and 2, he is in the same position
as accused No 1 .
For the reasons discussed in the
case of accused No 1 , the verdicts on Counts 1 and 2,
in respect of accused No 4, must be changed from guilty
of murder to guilty of attempted murder. I shall
deal with the sentences on the various counts in
relation to accused No 4 later.
Having now concluded my discussion of the

110
cases of all the accused with regard to their
convictions, I proceed to consider the question of
extenuating circumstances.
In view of the conclusions
reached above, this question remains a live issue only
in respect of accused No 1, in relation to Counts 3 and
4.
The trial Court, having convicted all the
accused on four counts of murder, heard argument on the
matter of extenuating circumstances, whereafter the
learned trial Judge delivered a judgment in which it
was stated that the trial Court found that there were
no extenuating circumstances in the case of accused Nos
1, 2 and 3, but that there were extenuating
circumstances in the case of accused Nos 4, 6 and 7.
The judgment on extenuation consists of three pages.
In the first two pages the trial Judge summarized a
large number of submissions made by counsel for the
accused
in support of the contention that extenuating
circumstances were present in regard to all the

111
accused, including specifically, accused No 1.
The
trial Judge also made brief reference to some
submissions advanced by counsel for the State.
In the
last page of
the judgment the findings of the trial
Court are stated.
The statement commences thus:
"Ons betrag dus die toedrag van sake. In
die geval van beskuldigde 1 het ons die
getuienis as bewese dat hy die aanstigter was
en alhoewel nie bewys is dat hy 'n spesifieke
oorledene aangerand en daardie persoon se
dood veroorsaak het nie, het beskuldigde 1
die dood van al die spanleiers in kamer 12
beoog en hy het aktief meegehelp dat van
hulle deur ander persone gedood is."
Thereafter brief reference was made to the positions of
accused Nos 2 and 3, and this was followed by the
finding:
"Na ons eenparige mening word die morele
verwytbaarheid van beskuldigdes 1, 2 en 3 in
geen opsig in hierdie saak verminder nie."
The judgment concludes with a brief paragraph dealing
with accused Nos 4, 6 and 7.
It is apparent
from the foregoing that the
trial Judge in f act gave no reasons f or the trial

112
Court's finding that no extenuating circumstances
existed in the case of accused No 1. The one
sentence of the judgment in which reference is made to
accused No 1, as guoted above, does not constitute
reasons for the Court's finding. Not a single
submission made by counsel for the accused was
discussed.
Assuming that the trial Court considered
and rejected counsel's submissions, no reasons were
stated for rejecting them.
The unfortunate result is that this Court is
now obliged to consider the question of extenuating
circumstances afresh, in the light of the evidence on
record
(see S v Masuku and Others 1985 (3) SA 908 (A)
at 912).
The approach to be adopted is well known.
I
quote the formulation of it by CORBETT JA in S v Nqoma
1984 (3) SA 666 (A) at 673 G-I:
"The determination of the presence or
absence of extenuating circumstances involves
a three-fold enquiry: (1) whether there

113
were at the time of the commission of the
crime facts or circumstances which could have
influenced the accused's state of mind or
mental faculties and could serve to
constitute extenuation; (2) whether such
facts or circumstances, in their cumulative
effect, probably did influence the accused's
state of mind in doing what he did; and (3)
whether this influence was of such a nature
as to reduce the moral blameworthiness of the
accused in doing what he did. In deciding
(3) the trial Court passes a moral judgment."
I proceed to deal separately with each of the
grounds for extenuation advanced by counsel cm behalf
of accused No 1 in this Court.
(1) Counsel argued that the form of mens rea
proved on the part of accused No 1 was no
more than dolus eventualis. I do not
agree.
The argument loses sight of the facts
that accused No 1 had himself exhorted
the
workers that the team leaders should be
killed, that that was his theme song on that
very evening, and that he, against that
background, then proceeded to lead the mob on

114
to the ferocious attack on room 12 and its
occupants.
The only reasonable inference to
be drawn from these facts, in the absence of
evidence to the contrary from the accused
himself, is that accused No 1's direct object
was to have the victims murdered.
(2) It was pointed out that accused No 1 had not
himself physically assaulted any of the
victims.
We do not know that that is so,
but even if it is assumed to be a fact, I do
not consider that it can serve to diminish
his moral blameworthiness, having regard to
the fact that he was the leader of the
murderous attack.
(3) It was argued that accused No 1 had tried to
control the attackers by warning them not to
injure people.
I have already dealt with
the evidence in that regard; as has been
pointed out, accused No 1's warning could not

possibly have been intended to apply to the
men who were inside the room.
(4) Reliance was placed on the fact that accused
No 1 was one of the first to desist from the
attack.
In the absence of any evidence from
him, we do not know why he departed from the
scene, when he did. A possible reason,
which is no less probable thán any other
theory, is that he departed solely in order
to minimize the risk of his being caught in
the act.
(5) Counsel argued that there was no premeditated
plan or intention to kill.
This argument
merits careful examination.
A premeditated
plan or intention to kill cannot be inferred
from the inflammatory and threatening
speeches made by accused No 1 at the Union
meetings, I think, because these had been
occurring for a considerable length of time,

116
nothing had come of them, and they seem to
have been used as a means of intimidation
rather than as threats of actual and imminent
action to follow.
Nor do I think that an
inference of the existence of a premeditated
plan or intention to kill the inmates of room
12, until relatively shortly before the fatal
attack commenced, can properly be drawn from
the preceding events of that evening.
I say
this because the roving group under the
leadership of accused No 1 had entered
several rooms of team leaders (such as room
108), and had indeed also "visited" room 12
itself, without any indication of the
execution of the threats of killing having
been given. The prior conduct of the
roving group is consequehtly consistent with
a mere plan or intention to intimidate the
team leaders by a show of force, as it were.

117
It is to be noted also that a number of the
State witnesses said in their evidence that,
despite the intimidatory actions of the group
before the actual attack on room 12 started,
they did not expect actual violence to occur.
Aparently this kind of thing had happened so
often before that they did not take the
threats seriously.
I am disposed to agree,
therefore, with counsel's argument that a
plan or intention to kill the occupants of
room 12 had not taken shape as an actual fact
until shortly before the attack commenced.
However, that circumstance, in itself, is not
extenuating.
It has freguently been held
that absence of premeditation does not per se
constitute an extenuating circumstance.
Whether or not it does, in any particular
case, depends on all the surrounding
circumstances, and the question must be

considered in the light of the general
approach stated in the above quotation from
Nqoma's case. In the present case, as a
matter of probability, the decision to launch
a murderous attack on room 12 and its inmates
must have been taken, or the intention to do
so must have become manifest, when the group
under thê leadership of accused No 1 was in
the vicinity of block 8, prior to its moving
on to room 12, or, at the latest, while it
was in the process of moving from block 8 to
room 12, for it is clear on the evidence that
when the group arrived at room 12 the vicious
attack commenced immediately and without
further ado.
In order to assess the effect
of these facts on accused No 1's moral
blameworthiness it is necessary to examine
the possible reasons for the group's
embarking on the attack. This requires a

119
consideration of the further submissions made
by counsel, discussed in the following two
paragraphs.
(6) Counsel argued that something must have
happened to spark off the attack.
To the
extent that the argument suggests that
something unforeseen or unexpected had
happened to excite the mob into violent
action, it rests on pure conjecture. And
here, indeed, lies the major problem in the
way of ccunsel's argument. Accused No 1
bore
the onus of proving, on a balance of
probabilities, the existence of
extenuating
circmstances, but he gave no e/idence
regarding his state of mind or mental
faculties, or influences operating thereon,
at the critical time.
Of course regard must
be had to such evidence as is available, but
mere speculation or conjecture cannot avail

120
the accused. To demonstrate the problem
facing counsel's argument, one can postulate
the following possibility:
that accused No
1, while the men he was leading were
conferring at block 8, decided that the time
for mere intimidation had passed, that the
men were in such an excitable and aggressive
mood that the occasion was ripe for violent
action, and that he then cold-bloodedly urged
the men on to kill the mpimpi's in room 12.
If that had happened, obviously the absence
of premeditation would be irrelevant.
The
possibility postulated is mere conjecture, of
course, but it underscores the lack of
evidence pointing to any probability to the
contrary.
(7) In an attempt to overcome this problem,
counsel advanced various reasons for the mob
having gone on the attack. First, he

121
mentioned mass hysteria. That, again, is
pure speculation, in particular with
reference to accused No 1, who was the leader
of the group. He could have incited
hysteria in the other men, but, if anything,
it is improbable that he himself would have
succumbed to mass hysteria. Secondly,
counsel mentioned provocation.
There is no
suggestion of that in the evidence;
on the
contrary, the evidence shows that no
resistance was offered to the intrusions of
the group into rooms of team leaders anywhere
in the compound.
Thirdly, counsel suggested
that the people simply lost control over
themselves. Once again, this is no more
than speculation, especially with reference
to accused No 1, who, by all accounts,
appears to have been perfectly cool and
collected and in full control of himself.

122
For these reasons the absence of
premeditation cannot, in my judgment, qualify
as an extenuating circumstance in regard to
accused No 1 in this case.
(8) Counsel submitted that the underlying tension
and feelings of animosity and ill-will
between shaft stewards and team leaders
diminished accused No 1's moral blameworthiness.
I do not agree. Accused No 1 was
not uneducated and he occupied a position of
responsibility in the Union. Exercising a
moral judgment, the rivalry and struggle for
power between the two sections of the
community
in the compound, and such tension
and
feelings of hostility as may have been
engendered thereby, cannot serve to render
his conduct less blameworthy.
I should add
that, in any event, there is no evidence, and
in the absence of it, no probability, that

123
these matters exercised an influence on
accused No 1's mind of such a nature as to
reduce his blameworthiness.
(9) Finally, counsel referred to the events of
the previous day, when accused No 1 was
frustrated
in his attempt to have the rooms
of team leaders searched for weapons, and to
his desire that the team
leaders should be
disarmed in order to obviate an attack on the
shaft stewards, and it was submitted that
accused No 1 succumbed to the temptation of
taking the law into his own hands.
In the
absence of evidence to that effect from
accused No 1, it cannot be found on the
probabilities that these matters operated on
his mind in a manner that could constitute
extenuation.
Looking at the cumulative effect of the
matters discussed above, as I am required to do, my

124
conclusion is that no extenuating circumstances have
been proved.
It follows that accused No 1 's appeal
against the death sentences imposed upon him in respect
of Counts 3 and 4 must fail.
Turning now to the sentence of 15 years'
imprisonment imposed on accused No 1 on Count 5, I
consider that sentence to be excessive. Had I been
called upon to pass sentence on that count in the first
instance, I would have imposed a sentence of 10 years'
imprisonment.
The disparity is sufficiently striking
to warrant interference by this Court.
As to Counts
1 and 2, where convictions for attempted murder are to
be substituted for the trial Court's convictions for
murder, the ultimate fate of the deceased in these
counts must be left out of consideration in deciding
upon an appropriate sentence.
I consider a sentence
of 6 years' imprisonment on each count to be
appropriate.
These sentences will be ordered to be
served concurrently with the sentence on Count 5.

125
Next, I must deal with the sentence to be
imposed on accused No 2 in respect of the convicton for
assault with intent to do grievous bodily harm, which
is to be substituted for the trial Court's conviction
of this accused for murder on Count 1.
Having regard
to accused No 2's clean record and personal
circumstances favourable to him, I consider an
appropriate sentence to be one of 18 months'
imprisonment.
I do not propose, however, to impose
that sentence, for the following reasons.
Accused No
1 was sentenced to death on 12 May 1987. That means
that he has by now spent about 16½ months in the
death cell. A sentence of imprisonment imposed by
this Court for an offence other than the one for which
the accused was sentenced by the Court a quo cannot be
antedated in terms of section 282 of the Criminal
Procedure Act 51 of 1977;
the wording of the section
does not permit of its application in the circumstances
of this case. This appears to me to be a serious

126
deficiency in the provisions of the Act, 'which requires
the urgent attention of the Legislature. The Court has
no power to antedate a sentence otherwise than in
accordance with the provisions of the section (see S v
Hawthorne en h Ander 1980 (1) SA 521 (A) at 524).
The result is that if this Court were now to impose a
sentence
of imprisonment of 18 months, that sentence
would commence to run f rom the date of this judgment ,
and no effect can be given to the time that the accused
has already spent in prison.
This is a result that I
am not prepared to countenance.
If the time already
spent in prison by the accused is taken into account in
the sentence to be imposed now, by making a deduction
from the period of imprisonment to be fixed, the
sentence will be artificial and will create a false
impression on the accused's record of previous
convictions in the future. In the interests of
justice, however, I cannot see how that undesirable
result can be avoided. Consequently I intend to

127
impose a sentence of 30
days' imprisonment on accused
No 2 for the conviction which is to be recorded
on
Count 1 in place of that of the trial Court.
In the case of accused No 4 the trial Judge
imposed a sentence of 10 years' imprisonment on each of
the five counts, to be served concurrently. In
respect of Counts 3 and 4 I can find no sufficient
warrant for interfering with the sentences. In
respect of Count 5, having regard to the reduction of
accused No 1's sentence on that count, as mentioned
above, I consider that accused No 4's sentence should
be reduced to one of 6 years' imprisonment.
In regard
to Counts 1 and 2, where the convictions are to be
altered to attempted murder, I think that a sentence of
4 years' imprisonment on each count would be
appropriate.
All these sentences will be ordered to
run concurrently.
Finally, I refer to accused No 6. A
single conviction for public violence is to be

128
substituted for all the convictions of the trial Court.
Having regard to his clean record and personal
circumstances, and to the nature of his offence, I
consider a sentence of 3 years' imprisonment to be
appropriate. In his case, however, the same
difficulty exists as in the case of accused No 2 in
regard to the impossibility of antedating the sentence.
Accordingly I propose to impose a sentence of 18
months' imprisonment on him.
The order of the Court is as follows:
1 . Appellant No 1 (Accused No 1 in the Court a
quo):-
(a) Counts 3 and 4:
The appeal against the convictions for
murder and the death sentences imposed
on these counts is dismissed.
(b) Counts 1 and 2:
The appeal against the convictions for
murder and the death sentences imposed
on these counts is allowed to the extent
that such convictions and sentences are
set aside and there is substituted
therefor on each of these counts a

129
conviction for attempted murder and a
sentence of 6 years' imprisonment, such
sentences to be served together and
concurrently with the sentence imposed
on Count 5.
(c) Count 5:
(i) The appeal against the conviction
for attempted murder on this count
is dismissed.
(ii)
The appeal against the sentence of
15 years' imprisonment on this
count is allowed to the extent that
the sentence is altered to one of
10 years' imprisonment.
2. Appellant No 2 (Accused No 2 in the Court a
quo):-
(a) Count 1:
The appeal against the conviction for
murder and the death sentênce imposed on
this count is allowed to the extent that
such conviction and sentence are set
aside and there is substituted therefor
a conviction for assault with intent to
do grievous bodily harm and a sentence
of 30 days' imprisonment.
(b) Counts 2, 3, 4 and 5:
The appeal against the convictions and
sentences imposed on all these counts is
allowed; all the convictions and

30
sentences on th
3. Appellant No 3 (Accused No 3 in the Court a
Counts 1, 2, 3, 4 and 5:
The appeal is allowed in its entirety;
all the convictions and sentences on all
of the counts are set aside.
4. Áppellant No 4 (Accused No 4 in the Court a
quo):-
quo):-
(a) Counts 3 and 4:
The appeal against the convictions for
murder and the sentences of 10 years'
imprisonment imposed on each of these
counts, to be served concurrently, is
dismissed.
(b) Counts 1 and 2:
The appeal against the convictions for
murder and the sentences of 10 years'
imprisonment imposed on these counts is
allowed to the extent that such
convictions and sentences are set aside
and there is substituted therefor on
each of these counts a conviction for
attempted murder and a sentence of 4
years' imprisonment, such sentences to
be served together and concurrently with
the sentences on Counts 3 and 4.
(c) Count 5:

(i) The appeal against the conviction for
is dismissed.
(ii)
The appeal against the sentence of
10 years' imprisonment on this
count is allowed to the extent that
the sentence is altered to one of 6
years' imprisonment, which is
ordered to be served concurrently
with the sentences imposed on
Counts 3 and 4.
5. Appellant No 5 (Accused No 6 in the Court a
Counts 1, 2, 3, 4 and 5:
The appeal is allowed to the extent that
the convictions and sentences imposed on
all of the counts are set aside and
there is substituted therefor a single
conviction for public violence and a
sentence of 18 months' imprisonment.
6. Appellant No 6 (Accused No 7 in the Court a
quo):-
quo):-
Counts 1, 2, 3, 4 and 5:
The appeal is allowea in its entirety;
all the convictions and sentences on all
of the counts are set aside.
A.S. BOTHA JA
SMALBERGER JA
STEYN JA
CONCUR