THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 221/2022

In the matter between:

PRENASHAN GOVENDER                                                       APPELLANT

and

THE STATE                                                                               RESPONDENT

Neutral Citation: Govender v The State (221/2022) [2023] ZASCA 60 (3 May
2023)

Coram:
SCHIPPERS and CARELSE JJA, and NHLANGULELA and
SIWENDU and UNTERHALTER AJJA

Heard:
24 February 2023
Delivered: 3 May 2023

Summary:  Criminal Law – murder – common purpose – conviction on direct
and circumstantial evidence – presence at scene, active association and intent
proved – failure to testify – conviction upheld.

________________________________________________________________
ORDER
________________________________________________________________

On appeal from: Gauteng Division of the High Court, Johannesburg
(Mokgoathleng J, Makhoba J and Van der Westhuizen AJ sitting as court of
appeal):

The appeal is dismissed.
________________________________________________________________

JUDGMENT
________________________________________________________________

Siwendu AJA (Schippers and Carelse JJA and Nhlangulela and Unterhalter
AJJA concurring):

[1] The appellant was charged in the Gauteng Division of the High Court,
Johannesburg (the high court) with two counts of murder and various
contraventions of the Firearms Control Act 60 of 2000 (the Act).1 He was
convicted on the murder charges and sentenced to life imprisonment on each
count. An appeal against conviction and sentence to a full court of the high court
(the full court) was dismissed. He was granted special leave to appeal to this
Court.

[2] The conviction follows the fatal shooting of two persons on
12 August 2018 at a restaurant and club in Kyalami, Johannesburg (the club), at
which the appellant, his wife and a group of friends, had attended a function. The
appellant and his co-accused, Mr Lloyd Lester Latchman (Accused 1), were
convicted mainly on the evidence of Mr Mboni Maswanganye, Ms Kerisha Nair

1 For present purposes, the appellant’s conviction of contravening section 120(10)(a) of the Firearms Control Act
– giving possession of a firearm to a person who is not allowed to possess it – is relevant. The appellant was
sentenced to six months’ imprisonment for this offence.

and Mr Tambo Dickson. The appellant was Accused 2 in the proceedings in the
trial court.

[3] Mr Maswanganye is an Uber driver who was called to the club by the
appellant to take his wife home to Randburg. His evidence, in summary, is as
follows. On arrival at the club, he found the appellant and his wife waiting
outside. He parked his vehicle close to the building, next to the stairway leading
up to the club. It was after midnight and the place where Mr Maswanganye had
parked was well lit. The appellant’s wife asked him to wait for two other
passengers. Mr Maswanganye noticed that the appellant was carrying a firearm
underneath his jacket, just below his waist.

[4] While waiting for the two passengers, a man, later identified as ‘Bilal’,
came out of the club with a bloody nose, followed by a man wearing a red
bandana. They were part of the appellant’s group. The appellant and his wife were
outraged at what happened to Bilal. The appellant removed his loaded firearm
from its holster and held it in his hand. A scuffle ensued when the man with the
red bandana attempted to restrain the appellant from going into the club and told
him to go home; whatever had happened was over.

[5] During this scuffle, Accused 1 appeared. The appellant, who still had the
firearm in his hand, walked with Accused 1 up the stairs, in the direction of the
club. When they were halfway up the stairs, Accused 1 took the firearm from the
appellant. Accused 1 did not grab or forcefully take it. Five to seven seconds later,
Mr Maswanganye heard gunshots. Shortly after the shots were fired, a man (later
identified as the deceased, Mr Theolan Nair) came running from the club. He held
his arm on his chest and shouted that he had been shot. He was followed by
Accused 1 who, Mr Maswanganye testified, was armed with a silver firearm.
Mr Maswanganye was seated in his vehicle. Accused 1 opened the rear door of

Mr Maswanganye’s vehicle, shouting, ‘Where is he? Where is he?’, referring to
Mr Nair. The appellant’s wife was seated in the back of the vehicle. Accused 1
then left the vehicle and went in the direction that Mr Nair had gone.
Mr Maswanganye saw Accused 1 leaving in a white BMW without number
plates. The last time he saw the appellant was on the stairs, where Accused 1 had
taken the firearm.

[6] Mr Maswanganye, who himself was carrying a firearm, wanted to leave
immediately when Accused 1 came to his vehicle, but the appellant’s wife
restrained him from doing so. She wanted to be assured of the appellant’s
whereabouts. When she saw the white BMW leaving, she indicated to
Mr Maswanganye that he should leave. The appellant did not travel with his wife
to his home in Randburg, in Mr Maswanganye’s vehicle.

[7] Ms Nair worked at the club and was married to the late Mr Theolan Nair.
She testified that there was an argument inside the club between Accused 1 and
Mr Nair. Her husband’s friend, Mr Yashlin Pillay, was also involved in the
argument. A crowd gathered around them and a fight broke out. When Ms Nair
decided to approach the crowd, the bouncers had already removed persons
involved in the fight from the club, including Accused 1 and Mr Nair. About five
to ten minutes later, Accused 1 returned to the club with a gun in his hand and
fired a shot at the ceiling. Thereafter he shot Mr Pillay in his chest at point blank
range. The patrons ran for cover. Mr Pillay died at the scene. At that point,
Mr Nair was hiding behind a pillar in the club, but Accused 1 had seen him.
Mr Nair fled and Accused 1 followed him down the stairs. While she was running
behind them, Ms Nair heard a shot. She saw Accused 1 jumping into a white
BMW which sped off. It had no number plates. Subsequently, Ms Nair found her
husband, who had been shot in the shoulder area. Attempts by paramedics to

resuscitate him were unsuccessful. The autopsy report states that Mr Nair died of
a penetrating gunshot wound of the thorax.

[8] Mr Dickson was one of the bouncers. He testified that a fight broke out in
the club between patrons. Accused 1 and the appellant were part of a group
involved in the fight. Mr Dickson said that he spoke to the people involved and
had calmed down the situation. He took Accused 1 outside the club and spoke to
him, while his fellow bouncers dealt with the other persons who were involved
in the fight. However, Accused 1 subsequently returned, after which Mr Dickson
heard gunshots coming from inside the club. The patrons, who took cover when
the shots were fired, only ran out of the club after Accused 1 and the appellant
had left. When Mr Dickson went back into the club, he discovered that someone
had been shot.

[9] Accused 1 testified in his own defence. He said that he had met the
appellant at the club and that they were together almost the entire night. At some
stage the appellant informed him that he was leaving because his wife was ill.
The appellant left the club. Shortly afterwards Accused 1 also left, greeted the
appellant and his wife at the Uber vehicle and left the club in his own car. Accused
1 testified that he had not seen a firearm on the appellant, and said that the
appellant had not been involved in a scuffle with anybody. Accused 1 denied that
he had taken a firearm from the appellant, or that he shot anybody at the club.

[10] The appellant chose not to give evidence in his defence, despite the fact
that he had instructed his counsel to put the following version to
Mr Maswanganye. A group of people had come down the stairs, ‘when the scuffle
was taking place between accused 2 and the man in the bandana’. Somebody had
dispossessed the appellant of his firearm at the stairs. The appellant ‘ran upstairs
to try and retrieve and find [the person] who took his firearm’.

[11] The main issue on appeal is whether the appellant acted in common
purpose with Accused 1 in the murder of the deceased. Counsel for the appellant
submitted that the trial court’s findings on the facts were based on ‘conjecture
and speculation’, and that it had made ‘huge quantum leaps in respect of the
evidence before it’. As to the decision of the full court, there was no evidence, so
it was submitted, ‘to suggest that the appellant’s actions were in any way linked
to that of Accused 1.’ He had not ‘formed a common purpose with Accused 1’;
and the requisites for a conviction based on common purpose had not been met.

[12] There was no evidence of a prior agreement between Accused 1 and the
appellant to murder the deceased. However, a finding that a person acted together
with another in a common purpose is not dependent upon proof of a prior
conspiracy. Such a finding may be inferred from the conduct of the participants.2
The State was therefore required to prove that the appellant had actively
associated himself with the execution of the common purpose. The concept of
active association is wider than that of agreement, since it is seldom possible to
prove a prior agreement. Consequently, it is easier to draw an inference that a
participant associated himself with the perpetrator.3

[13] This court in Mgedezi,4 outlined the following requirements for active
association in common purpose. The accused must have:
(a) been present at the scene where the violence was committed;
(b) been aware of the assault on the victim by somebody else;
(c) intended to make common purpose with the person perpetrating the assault;
(d) manifested his sharing of a common purpose by himself performing an act of
association with the conduct of the perpetrator; and

2 C R Snyman Criminal Law (5 ed 2012) at 265.
3 Snyman fn 2 at 267.
4 S v Mgedezi and Others 1989 (1) SA 705 (A) at 705 I.

(e) have the requisite mens rea. Dolus eventualis is sufficient: the accused must
have foreseen the possibility that the acts of the perpetrator may result in the death
of the victim, and reconciled himself with that eventuality.5

[14] The State proved all these requirements in the present case. The appellant
removed his firearm from its holster and held it in his hand, with the intention of
going into the club to avenge the assault on Bilal. That is why he had to be
restrained, why a scuffle ensued and why he did not leave the club. His friend
with the red bandana had implored him to leave the scene and the Uber was right
there. The appearance of Accused 1 did not deter the appellant from going
towards the club to settle a score: he retained the firearm in his hand and
proceeded towards the club. Only when he was halfway up the stairs did Accused
1 take the firearm from the appellant. His counsel rightly conceded that he had
voluntarily relinquished possession of the firearm to Accused 1.

[15] The reason why the appellant did not proffer any resistance to the taking
of his firearm and why, even then, he did not dissociate himself from the common
purpose by leaving the club, is clear: he knew that Accused 1 was going to use
the firearm to do precisely what he (the appellant) had intended to do from the
outset – to avenge the assault on Bilal. The appellant thus knew, or foresaw the
possibility, that Accused 1 was going to use the firearm in the club which could
result in the death of a person, but nonetheless reconciled himself with that
possibility.6 The State thus proved the requisite intent on the part of the appellant.

[16] The natural reaction of an unsuspecting person who accompanies another
armed with a deadly weapon, is to completely distance himself from the events

5 Snyman fn 2 at 268.
6 S v Ngubane 1985 (3) SA 677 (A) at 685 F

about to unfold.7 Instead, the appellant accompanied Accused 1, who was armed
with the appellant’s firearm. He must have foreseen that Accused 1 would use the
firearm, which he did. This was not a case where the common purpose arose
spontaneously or on the spur of the moment.8 Five to seven seconds after he had
taken the firearm from the appellant, Accused 1 fired a number of shots, fatally
wounding the two deceased. Thus, both direct and circumstantial evidence point
to the presence of the appellant at the scene when these shots were fired. Where
else could he have gone with Accused 1?

[17] On these facts, the submissions by the appellant’s counsel are
unsustainable. There is direct evidence placing the appellant on the scene of the
murders: Mr Dickson testified that after the shots had been fired, Accused 1 and
the appellant ran out of the club. Of course, Mr Dickson could never have known
that they were together in the club on the night in question, unless he had seen
them. Mr Dickson described the clothes that both Accused 1 and the appellant
were wearing, and said that Accused 1 had a tattoo on his arm. All of this
evidence, crucially, went unchallenged. It merely underscores the appellant’s acts
of association with the conduct of Accused 1. And Mr Dickson was adamant that
the patrons came running out of the club, screaming, only after Accused 1 and
the appellant had left the scene. That evidence, unsurprisingly, was not
contradicted – nobody else had fired gunshots in the club. They were the ones
who caused mayhem which resulted in the death of two persons.

[18] What is more, Mr Dickson’s evidence is corroborated by the evidence of
both Mr Maswanganye and Ms Nair. After the shooting, Mr Maswanganye was
restrained from leaving the club because the appellant’s wife wanted to ascertain
his whereabouts. But when she saw the white BMW leaving the scene, she

7 S v Kramer en Andere 1972 (3) SA 331 (A) at 334F.
8 Snyman fn 2 at 266; S v Mambo 2006 (2) SACR 563 (SCA) para 17.

instructed Mr Maswanganye to leave. The appellant did not travel home to
Randburg in the Uber. So how did he leave the scene, if not with Accused 1 in
the BMW?

[19] Ms Nair testified that Accused 1 jumped into a BMW which sped off. Who
else, other than the appellant, could have driven the BMW? And both witnesses
could not have been mistaken – it was a white BMW with no number plates. So,
nothing turns on the fact that Mr Maswanganye initially stated that he saw the
appellant getting into the BMW, but later said that the last time he had seen the
appellant was on the stairs when Accused 1 had taken firearm from him. The only
reasonable inference to be drawn from the proved facts, is that the appellant fled
the scene together with Accused 1, in the BMW.

[20] Then there is the appellant’s failure to report the loss of his firearm to the
police. This was rightly considered by the full court as but another fact pointing
to the appellant’s guilt. The evidence makes it clear that his allegation that
somebody had dispossessed him of his firearm and that he ran up the stairs in
order to retrieve it, can safely be rejected as false. The inference is ineluctable
that both Accused 1 and the appellant knew that the firearm had been instrumental
in the killing of the deceased; and that they were intent on suppressing that
evidence.

[21]  On the totality of the evidence, which comprised mainly direct evidence
but also circumstantial evidence, the case against the appellant was damning and
called for an answer. Despite this, he chose to remain silent. In this regard, the
dictum by Holmes JA in Mthethwa9 bears repetition:
‘Where . . . there is direct prima facie evidence implicating the accused in the commission of
the offence, his failure to give evidence, whatever his reason may be for such failure, in

9 S v Mthethwa 1972 (3) SA at 769D, emphasis in the original.

general ipso facto tends to strengthen the State case, because there is nothing to gainsay it, and
therefore less reason for doubting its credibility or reliability.’

[22] If he was innocent, the appellant could have met the State’s case with ease,
particularly in the light of the allegation that he had been dispossessed of his
firearm (and therefore it could not have been used by Accused 1 to shoot the
deceased). Further, his counsel put it to Mr Maswanganye that a witness would
be called if the need arose to testify that the appellant had left the venue for his
own safety as soon as the gunshots were fired; and that he did not see the shooting.
The witness was never called. The full court was perfectly entitled to conclude
that the evidence against the appellant was sufficient to sustain a conviction.10

[23] The appellant was thus rightly convicted on two counts of murder. As this
Court stated in Chabalala.11
‘The appellant was faced with direct and apparently credible evidence which made him the
prime mover in the offence . . . To have remained silent in the face of the evidence was
damning. He thereby left the prima facie case to speak for itself. One is bound to conclude that
the totality of the evidence taken in conjunction with his silence excluded any reasonable doubt
about his guilt.’

[24] The appeal against sentence can be dealt with briefly. The appellant was
convicted of murder committed in furtherance of a common purpose, which
carries a mandatory life sentence.12 The prescribed minimum sentence is the
sentence that should ordinarily be imposed in the absence of weighty justification.
A court may not depart from the prescribed sentence lightly and for flimsy
reasons.13

10 S v Boesak 2001 (1) SACR 1 (CC) para 24.
11 S v Chabalala 2003 (1) SACR 142 (SCA) para 21.
12 Section 51(1) of the Criminal Law Amendment Act 105 of 1997, read with Part 1, item (d) of Schedule 2 thereto.
13 S v Malgas 2001 (1) SACR 469 (SCA) paras 9 and 25.

[25] As the full court observed, murder is a heinous crime. In this case the
killing of the deceased was brazen. Mr Pillay was shot at point-blank range.
Immediately thereafter, Mr Nair was followed and shot in circumstances where
his wife, who had just witnessed the murder of Mr Pillay, unsuccessfully tried to
warn him that Accused 1 was armed. The patrons in the club were terrified and
ran for cover. The full court’s finding that there were no substantial and
compelling circumstances which justified a deviation from the prescribed
minimum sentence, cannot be faulted.

[26] In the result, the appeal is dismissed.

_________________________

N T Y SIWENDU

ACTING JUDGE OF APPEAL

Appearances

For the appellant:
JJCS Meiring
Instructed by:

BDK Attorneys, Johannesburg
Symington & De Kok Attorneys, Bloemfontein

For the respondent:
E K Moseki
Instructed by:

The Director of Public Prosecutions, Johannesburg
The Director of Public Prosecutions, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

3 May 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does
not form part of the judgments of the Supreme Court of Appeal
Govender v The State (221/2022) [2023] ZASCA 60 (3 May 2023)
Today the SCA dismissed the appeal against the conviction and sentence by the full court Gauteng
Division of the High Court, Johannesburg.
On the 12th August 2018 the appellant and his co-accused (Accused 1) were part of a group attending
a function at a restaurant and club in Kyalami, Johannesburg. Accused 1 shot and killed two people at
the club. The appellant was charged and convicted on two counts of murder based on common purpose.
The appellant challenged his conviction on the grounds that it was based on circumstantial evidence.
He denied that he was present at the scene. He contended that common purpose was not established
and the state did not prove his guilt beyond a reasonable doubt. The main issue on appeal was whether
the appellant acted in common purpose with Accused 1 in the murder of the two deceased and was
correctly convicted of the crimes.
The conviction was mainly based on the evidence of Mr. Maswanganye (an Uber driver called by the
appellant to the club to pick the appellant’s wife and take her home Randburg), Mrs Nair, (an employee
at the club, married to one of the deceased, Mr Nair), and Mr Dickson (a bouncer employed by the
club). After midnight on arrival at the club, Mr. Maswanganye (the driver), found the appellant and his
wife waiting outside. The area was well lit. He parked his vehicle close to the building, next to the
stairway leading up to the club. The appellant’s wife asked him to wait for two other passengers. He
noticed that as the appellant moved about, he had a firearm underneath his jacket below waist.. One of
the two passengers, Bilal, came out of the club with a bloody nose, followed by a man wearing a red
bandana. Outraged by what happened to Bilal, the appellant wanted to go back to the club and the man
in the red bandana attempted to restrain him. The appellant removed his firearm, described as a “silver
firearm” from the holster and held it in his hand. A scuffle ensued between the appellant and the man
with a bandana who tried to persuade the appellant to go home.
The scuffle migrated to the stairway leading to the club. Accused 1 appeared and joined the scuffle.
The driver saw Accused 1 take the firearm from the appellant. The appellant gave no resistance to the

taking of his firearm. Shortly afterwards, the driver heard sounds gunshots being fired. A man, later
identified as Mr. Nair, came running from the club, shouting that he had been shot. Accused 1 had
followed Mr. Nair, with the firearm in his hand. He opened the back passenger door of the Uber vehicle
looking for Mr. Nair. Mr. Maswanganye wanted to leave immediately but the appellant’s wife restrained
him for leaving. She wanted to be assured of the appellant’s whereabouts. Soon thereafter, the driver
saw Accused 1 leaving in an unmarked white BMW. Seeing the departure of the BMW, the appellant’s
wife instructed the driver to leave. The appellant did not travel with his wife in the Uber vehicle. The
driver confirmed during cross examination that he last saw the appellant during the scuffle on the stairs
leading to the club where Accused 1 took the firearm from him.
It was a common cause during the trial that the appellant was a licensed owner of two firearms, one of
which was a silver Taurus. He did not report the firearm missing. The firearm was never found after the
incident.
According to Mrs Nair who was inside the club, an argument ensued between Accused 1, Mr. Nair and
Mr. Pillay. A crowd had gathered around them. Club bouncers were called to remove those involved.
Peace restored inside, but was short lived because Accused 1 returned using a different entrance.
Accused 1 then fired a bullet up at the ceiling and another at Mr. Pillay whom he shot at point blank
range. Mrs Nair tried to warn Mr. Nair that Accused 1 had a firearm. Mr Nair took cover behind a pillar
but Accused 1 saw and followed him down stairs. Soon thereafter, Mrs. Nair heard the sound of a
gunshot and later found that Mr. Nair had been shot in the shoulder area. Despite attempts by
paramedics to resuscitate him, he died at the scene from a penetrating gunshot wound of the thorax.
One of the bouncers, Mr. Dickson, confirmed that a fight broke out in the club. Accused 1 and the
appellant were part of the same group of patrons. He described the clothes the appellant and Accused
1 wore. In trying to calm down the fight, he took Accused 1 outside the club. Accused 1 returned to the
club and fired gunshots inside the club. The patrons, who took cover when the shots were fired, only
ran out of the club after Accused 1 and the appellant left. His evidence was that Accused 1 and the
appellant left the club together. This evidence was not challenged.
Accused 1 testified in his own defence. He disputed involvement in the scuffle, denied taking a firearm
from the appellant and denied shooting the deceased inside the club. The appellant on the other hand,
chose not to give evidence in his defence. The version the appellant put to the driver was that someone
dispossessed him of his firearm during the scuffle and he ran upstairs to retrieve it.
The SCA considered common purpose based on the requirements in S v Mgedezi and Others [1989
(1) SA 705 (A) at 705 I] to establish whether the appellant actively associated himself with the actions
of Accused 1 and had the requisite intent to find a conviction. It observed that there was no proof of a
prior conspiracy, but however that, an act of active association is wider than a prior agreement. It can
be inferred from the conduct of the participants. In this case, the appellant removed his firearm from the
holster with the intention to go to the club to avenge the assault on Bilal. He resisted efforts to restrain
him and engaged in a scuffle. The appearance of Accused 1 did not deter him from proceeding toward
the club to settle the score. It was only halfway the stairway that the forearm was taken from him. His
counsel rightly conceded that the appellant relinquished his firearm to Accused 1. The SCA found that

the appellant did not disassociate himself because Accused 1 was going to use the firearm to do that
which the appellant intended to do. He knew and foresaw the possibility that Accused 1 would use the
firearm which could result in the death of a person and reconciled himself with the consequence. The
natural reaction of a person accompanying another with a deadly weapon is to completely distance
himself from the events about to unfold. Instead the appellant accompanied Accused 1.
The SCA held that both direct and circumstantial evidence pointed to the presence of the appellant at
the scene when the shots were fired. Where else could he have gone with Accused 1? The evidence
of the driver, Mr. Maswanganye and Mr Nair corroborated each other that after the shots were fired,
Accused 1 sped off in an unmarked white BMW. The only reasonable inference from the proved facts
was that the appellant fled the scene with Accused 1. Who else could have driven the white BMW but
the appellant? He did not travel home with his wife in the Uber vehicle.
The SCA also considered the appellant’s failure to report the loss of his firearm to the police, rightly
taken into account by the full court as another factor pointing to his guilt. It found that an inference was
ineluctable that both the appellant and Accused 1 knew that the firearm had been instrumental in the
killing of the deceased and were intent on suppressing that evidence. The evidence made it clear that
the allegation that the appellant went upstairs to retrieve the firearm could be rejected.
The SCA held that the totality of the evidence on which the appellant’s conviction was based comprised
of direct and circumstantial evidence. Applying the principle in S v Mthethwa 1972930 SA at 769AD, it
found there was a damning case against the appellant which called for an answer. The appellant chose
not to give evidence in own his defence. He could have met the State’s case with ease, particularly in
the light of the allegation that he was disposed of his firearm. His counsel had put to the driver that a
witness would be called to say the appellant left the venue for his safety and did not see the shooting.
The appellant never called the witness. The full court was entitled to conclude that the evidence against
the appellant was sufficient to sustain a conviction. There were no substantial and compelling
circumstances which justified a deviation from the prescribed minimum sentence. Therefore, the appeal
was dismissed.
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