THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

REPORTABLE
Case number :  197/07

In the matter between :

ALEXANDER GEORGE WHITEHEAD
FIRST APPELLANT
AREND CHRISTIAAN DE WAAL

SECOND APPELLANT
GEHARDUS JOHANNES TALJAARD
THIRD APPELLANT
WILLEM JACOBUS PETRUS JACOBS
FOURTH APPELLANT
HANS JACOB WESSELS

FIFTH APPELLANT
RYNO ADRIAAN ROSSOUW

SIXTH APPELLANT
RYAN ALBUTT

SEVENTH APPELLANT

and

THE STATE

RESPONDENT

CORAM :

FARLAM, NAVSA, VAN HEERDEN, MLAMBO et
COMBRINCK JJA
DATE :

1 NOVEMBER 2007
DELIVERED :

30 NOVEMBER 2007

Summary:
Criminal Law and Procedure – common purpose in the
context of culpable homicide and public violence – whether
duplication of convictions – sentence of 8 years confirmed –
order contained in para 49.

Neutral citation:
This judgment may be referred to as Whitehead v The State
[2007] SCA 171 (RSA)

COMBRINCK JA/

COMBRINCK JA:

[1] On 15 August 1995, the Municipal and Regional Services Council workers
of Kuruman went on strike and on 30 and 31 of that month they decided to
demonstrate to highlight their grievances. To this end they marched through the
streets of Kuruman, chanting and waving placards. In the course of the march
they emptied rubbish bins and threw the trash in the streets. The following day
they again staged a march through the town. Their numbers were estimated
variously to be between 60 and 200. They again started trashing the streets but
after the arrest of five of their numbers they desisted and the demonstration
continued peacefully. They halted at the taxi rank which is in the middle of the
town and sat down on a grassy area where they were addressed by their leader.
The next moment a posse of white men armed with pickhandles and sjamboks
came running down the street and without warning set upon the seated workers
and beat them indiscriminately with their weapons. The workers fled in all
directions pursued by their attackers. They, (the attackers), then proceeded to
smash cars belonging to blacks and attack other black people who had nothing
to do with the striking workers. After the attack at least nine people remained
lying on the grass with various injuries. Mr Gaoretelwe Adam Brown, (‘the
deceased’), a municipal worker, was found next to a fence close to the grass
area unconscious with a wound to his head. He was taken to hospital where he
subsequently died. The cause of death was an injury to the head caused by a
blunt instrument.

[2] The seven appellants and one other, Louis George Rademeyer, were as a
consequence of these events charged in the regional court with public violence
(count 1), culpable homicide (count 2), assault with intent to do grievous bodily
harm (count 3) and malicious damage to property (count 4). They were convicted
on counts 1 and 2 and the seventh appellant was in addition convicted of assault
with intent to do grievous bodily harm. The other appellants were acquitted on
count 3 and all the appellants on count 4 on the basis that these offences formed
part of the offence of public violence and it would lead to a multiplicity of
convictions (previously known as splitting of charges) if they were to be found
guilty on these charges. The assault of which the seventh appellant was

convicted related to events which took place later in the day and were
unconnected with the main assault on the striking workers. The appellants were
sentenced on counts 1 and 2 to five years on each, of which two years of the
total was suspended. Thus an effective eight years imprisonment. The seventh
appellant was sentenced to an additional two years for the separate assault.

[3] The appellants appealed unsuccessfully to the High Court, Kimberley,
against the convictions and sentences. Rademeyer absconded and is a fugitive
from justice. Leave to appeal to this court was refused by the High Court but on
application this court granted the appellants:
‘2.
Leave to appeal against their convictions and sentences on the count of
culpable homicide; and against their sentences on the count of public violence.
The seventh applicant was granted leave to appeal against the sentence
imposed on the count of assault with intent to do grievous bodily harm.’
Leave to appeal against the conviction of public violence was not sought. In issue
before us is therefore (i) the propriety of the conviction of culpable homicide; (ii)
the sentence in respect of that count; (iii) the correctness of the sentence on the
count of public violence and (iv) the sentence imposed on the seventh appellant
in respect of the count of assault with intent to do grievous bodily harm.

[4] I deal first with the question whether culpable homicide was proved. There
was only one eyewitness to the actual assault on the deceased and that was Mr
Westley Mabilo. He was not one of the demonstrators but was in the vicinity
when they came marching down the street. He, out of curiosity, joined them on
the grassy area to hear what the speaker had to say. He witnessed the group of
white men clad in khaki arriving with pickhandles and sjamboks approaching the
seated workers and indiscriminately assaulting them. He and others fled in the
direction of the station. He ran up against a wire fence where he fell and was
trampled underfoot by the fleeing demonstrators. People fell on top of him and
when he managed to extricate himself, he noticed a person lying nearby. This
person had previously been lying on top of him. It is common cause that this was
the deceased. He then witnessed a man with what he described as a ‘kierie’ with
a snake painted on it striking the deceased on the head causing an open wound.
This man he said was part of the group of white men who had launched the

attack at the grassy area. He also observed a uniformed policeman striking the
deceased on the back with a rifle. Subsequently he assisted others in placing the
deceased, who was unconscious, in a private vehicle which then conveyed him
to hospital. The evidence of this witness was uncontroverted, the appellants
having chosen not to testify. The defence did not seek to impugn his testimony.

[5] Counsel for appellants argued that the trial court and the court a quo had
ignored this evidence. The evidence demonstrates, so it was submitted, that the
policeman may have caused the death of the deceased, that he had acted
independently, alternatively, he and the man with the stick with the snake on had
acted independently of the appellants. There was therefore no causal connection
between the deeds of the appellants and the death of the deceased. The State,
so it was argued, had failed to prove any negligence on the part of the appellants
in that a reasonable man in their position would not have foreseen that an
unknown person and a policeman would assault and kill the deceased. With
reliance on S v Thenkwa 1970 (3) SA 529 (A) counsel submitted that the doctrine
of common purpose cannot be applied in cases of culpable homicide. In the
alternative, in so far as the doctrine has been found to be applicable in cases
involving culpable homicide, it was argued that if one had regard to the evidence
relating to the part each appellant played in the general assault, it cannot be
found that the requirement for culpability on the basis of common purpose as laid
down in S v Mgedezi 1989 (1) SA 687 (A) had been proved by the State.

[6] The fundamental difficulty which the appellants face is that they chose not
to appeal against the conviction of public violence. The basis of the conviction of
that crime was that the appellants had acted in concert and in furtherance of a
common purpose when they set upon the workers, assaulted them and inflicted
damage to the motor vehicles. The appellants have in effect accepted this
finding. They now strive to persuade us that, on the facts, the assault upon the
deceased was an isolated incident, unconnected to the general assault, and
committed by persons outside the group for whose actions they cannot be held
responsible. This argument is not supported by the evidence. The witness,
Mabilo, made it clear that the man with the stick was part of the attacking group.
It was he who struck the deceased on the head more than once. He only saw the

policeman strike the deceased once on his back. It is furthermore clear from his
evidence that the attack on the deceased was not separated in time from the
general attack. It was on the evidence part and parcel of the attack and pursuit of
the workers, carried out by a member of the attacking group.

[7] The reliance on S v Thenkwa (supra) for the proposition that the doctrine
of common purpose is not applicable to culpable homicide is misplaced. In that
case the very basis for finding that the two accused were guilty of culpable
homicide was that they had acted in concert. What the court said must be
guarded against, is convicting a person of murder or culpable homicide merely
because he took part in, or associated himself with an assault on the victim. It
must be proved that each participant in the assault had the required mens rea.
Botha JA at p 534G spelt it out thus:
‘Die skuld van elkeen moet volgens sy eie handeling en sy eie gesindheid bepaal word. Waar
meerdere persone van strafbare manslag aangekla word, is blote deelname aan die onwettige
daad wat die dood veroorsaak het, dus onvoldoende om al die deelnemers vir die doodslag
strafregtelik aanspreeklik te hou. Dit kan alleen voldoende wees indien daar by die deelnemers
ook skuld was met betrekking tot die doodslag self. Aan die skuldvereiste vir strafbare manslag
word voldoen indien 'n redelike persoon in die plek van die deelnemer aan die onwettige daad,
wat die dood veroorsaak het, sou besef het dat 'n ernstige besering in die uitvoering van die daad
veroorsaak sou kon word, en dat hy sou voorsien het dat die besering moontlik lewensgevaarlik
sou kon wees.’
This is precisely what the trial court found when determining fault on the part of
each appellant. The magistrate said the following:
‘Gesien in die lig van die gevaarlike aard van die wapens wat gebruik was, moes ieder en elke
een die redelike moontlikheid voorsien het dat die strekking van hulle gesamentlike opset die
dood van die oorledene tot gevolg kan hê.’
This court has confirmed that the doctrine of common purpose is applicable to
culpable homicide. See S v Nkwenja 1985 (2) SA 560 (A) at 573B; Magmoed v
Janse van Rensburg 1993 (1) SACR 67 (A) at 78b-d. The following passage from
the former judgment (at 573B-D) also disposes of the argument that no causal
connection between the individual acts of the appellants and the death of the
deceased was proved:

‘Strafbare manslag is die wederregtelike, nalatige doodslag van 'n ander en behels in die
algemeen die vereiste van 'n kousale verband tussen 'n handeling van die beskuldigde en die
dood. In die onderhawige geval is dit onseker watter appellant die dodelike geweld toegepas het
en sou dit moeilik wees om spesifiek aan die een of die ander van die appellante 'n handeling toe
te skryf wat conditio sine qua non van die dood was. Maar in ons praktyk word in gevalle soos die
onderhawige, waar daar voorafbeplanning was en dan deelneming aan verwesenliking van die
gesamentlike oogmerk, nie altyd streng aan die vereiste van kousaliteit (sine qua non) gekleef ten
einde die een deelnemer strafregtelik aanspreeklik te stel vir 'n gevolg van die handeling van 'n
ander deelnemer nie. Sonder om die juiste grondslag van hierdie aanspreeklikheid uit te stip wil
dit my voorkom dat albei appellante wel aan strafbare manslag skuldig is (vgl die benadering in S
v Ngobozi 1972 (3) SA 476 (A) op 478C - F).’

[8] Apart from the fact as mentioned earlier, that the appellants have in effect
conceded that they acted in concert by not attacking the conviction of public
violence, the submission that the acts of each appellant must be measured
against the criteria laid down in Mgedezi’s case is without merit. As argued by
counsel for the State, this is not a ‘joining in’ type of case. Here the evidence
makes it abundantly clear that the group of which appellants were part had
planned the attack in advance and their participation in the attack was the
execution of the prior conspiracy. The group, according to the undisputed
evidence, assembled at an obviously predetermined spot near the town library.
They were addressed by a person who in all probability was the leader. A bakkie
arrived carrying pickhandles which were handed out to the group. They then set
off followed by an ambulance which must have been arranged in advance. They
attacked their target immediately without the slightest provocation or warning.
They were not deterred by a considerable police presence. Tear-gas was used
and at least one of the group had a two-way radio over which an order later came
to the effect that the group had to withdraw. All conclusive proof of a pre-planned
attack. The State proved that each appellant was present as part of the group
and some were seen assaulting the demonstrators and others performing acts
consistent with an association with and furtherance of a common purpose. Both
the trial court and the court a quo meticulously analysed the evidence relating to
each appellant. The findings were not attacked by the appellants. Appellants’
counsel contended that on the evidence none of the appellants struck the
demonstrators on the head. All blows were aimed at the body. From this he said

can be inferred that the members of the group consciously avoided any life-
threatening blows. A reasonable man in their position, so the submission
continued, would not have foreseen that one of their members would strike a
worker on the head. There is no substance in this argument. A number of
witnesses testified to either receiving blows to the head or seeing others being
struck on the head. One, Mr Joseph Kipoledi, was rendered unconscious by a
blow to the head and had to be treated at hospital. Major Scholtz, the senior
policeman on the scene, testified to the fact that nine people were left lying on
the grass after the attack and he saw blood on their heads and faces. The
magistrate in his judgment on sentence recorded that 22 people were injured.

[9] In summary, therefore, I conclude that the regional magistrate correctly
found that the appellants were guilty of culpable homicide and that the attack on
the judgment is without merit.

[10] During the course of argument counsel were requested to address us on
the question of a possible duplication of convictions. On the suggestion of the
presiding judge counsel filed additional heads of argument. Defence counsel
contends that, because of the manner in which the appellants were charged,
there has indeed been a duplication of convictions. Counsel for the State argued
to the contrary. As stated at the commencement of the judgment, count 1 was
that the appellants were guilty of public violence, count 2, that they were guilty of
culpable homicide. Count 1, (freely translated from the Afrikaans), reads in
summary as follows:
‘That the accused are guilty of public violence in that they on 31 August 1995 at Kuruman . . .
unlawfully and with common intent to disturb the public peace by violent means and to infringe
the rights of other persons, committed acts which assumed serious dimensions in that they:
(a)
armed with pickhandles, sticks and sjamboks instilled fear in another group that they
would be subject to violence in order to disperse;
(b)
assaulted the said other group with intent to cause grievous bodily harm;
(c)
unlawfully and negligently killed Garoetelwe Adam Brown by hitting him with pickhandles,
sticks, sjamboks and other objects;

(d)
maliciously damaged motor vehicles, the property of . . . (three named persons).’
Count 2 reads:
‘The accused are guilty of culpable homicide in that on 31 August 1995 at Kuruman . . . they
wrongfully and negligently killed Garoetelwe Adam Brown.’
The only difference in the wording of that part of count 1 relating to culpable
homicide with that in count 2 is the description of how death was caused. In
essence the allegations are identical. Counsel for the appellants contends that
this is a textbook case of duplication of charges which has led to a duplication of
convictions. I consider that there is merit in this argument. No doubt, in order to
emphasise that this was an aggravated case of public violence, the State
included as part of what it intended proving against the appellants, the fact that a
human life had been taken. In proving that part of count 1 (as it successfully did)
the State on the same facts proved count 2. Put differently, proof of culpable
homicide as part of the offence of public violence of necessity proved the
allegations in count 2. Nowhere in his judgment does the magistrate indicate that
in convicting the appellants on the main count he did not take into account or
have regard to the evidence relating to the wrongful killing of the deceased. One
passage in his judgment, when dealing with count 1, demonstrates that he did
have regard to the fact that the deceased had been killed. He said:
‘Die getuienis toon aan dat slegs die swart mense beseer en een selfs gedood is en geeneen van
die wit groep is beseer nie, derhalwe is dit duidelik dat die swart groep hulle nie verweer het, selfs
met die wapens tot hulle beskikking nie.’
He concluded his judgment with a finding of guilty on counts 1 and 2, thereby
indicating that they were convicted as charged. It is relevant to note that in terms
of s 259 of the Criminal Procedure Act, 51 of 1977, public violence is a
competent verdict on a charge of culpable homicide. Notionally, if in the present
case the State was unable on count 2 to prove the cause of death, appellants
could have been convicted of public violence. But then they would have been
found guilty of public violence on count 1 too. It can never be suggested that this
would be justified. In two early reported decisions it was held in analogous
circumstances that it is improper to convict an accused of two offences. I refer in
this regard to R v Golisili 1927 EDL 115 and R v Ntsukumbini 1929 EDL 218. In

both cases the accused was charged with ‘fighting’ (also known as ‘faction
fighting’) in contravention of a proclamation and culpable homicide – two
separate counts. It was held to be improper to convict accused on both counts
where the evidence was that the unlawful killing took place in the course of the
‘fighting’. In his heads of argument counsel for the State does not answer the
assertion that there is a duplication of charges in the charge sheet. He maintains
that in terms of s 83 of the Criminal Procedure Act the State may put as many
charges in a charge sheet as could be proved by the facts. This is undoubtedly
so, but it does not follow that the court is entitled to convict on duplicated charges
(see R v Golisili and R v Ntsukumbini supra). State is entitled to duplicate
charges. The remainder of the State’s argument deals with the tests adopted by
courts over the years in relation to the issue of multiplicity of convictions. As
pointed out earlier, where on the charge sheet there is a duplication, the tests
referred to are irrelevant. It is so, as contended by counsel for the State, that this
issue was not raised by the defence in the regional court, the court a quo and for
that matter in this court until counsel’s attention was drawn to it. Nevertheless it is
a fundamental principle of our law that an accused should not be convicted and
sentenced in respect of two crimes when he or she has committed only one
offence. It forms part of the right to a fair trial which is enshrined in the
Constitution. In my view, therefore, the appellants should not have been
convicted on count 2. The magistrate should have dealt with this count in the
same manner as he dealt with counts 3 and 4. I would therefore allow the appeal
against conviction and sentence in respect of count 2.

[11] I turn now to deal with the issue of sentence. It is not clear from the
magistrate’s judgment whether, when determining an appropriate sentence in
respect of the public violence count, he took into account the fact of the negligent
killing of the deceased. The indications are that he did not as he imposed the
same period of imprisonment in respect of both counts 1 and 2. Whether one
sentences the appellants on the basis that they are guilty of public violence
excluding the culpable homicide and guilty of a separate count of culpable
homicide or whether one sentences them on the basis of a conviction of public
violence including the culpable homicide, (with no additional count of culpable
homicide), the sentence should be the same. Having set aside the sentence on

count 2, I would, after due notice of the intention to do so, and subject to what
may be advanced by the parties, consider increasing the sentence on count 1 to
the effective eight years imposed by the magistrate.

[12] Counsel was unable to point out any misdirection on the part of the
magistrate in his judgment on sentence. He was constrained to limit his
submission to one that the sentences cumulatively were shockingly inappropriate
regard being had to the circumstances. The magistrate gave a very
comprehensive judgment on sentence in which he recorded all the factors he had
taken into account in considering what an appropriate sentence should be. He
recorded and gave due weight to the personal circumstances of the appellants.
He took into account the inordinate length of time it took to commence and
conclude the trial and the effect it must have had on the appellants’ lives. He had
regard to the seriousness of the offences and the circumstances under which
they had been committed. Lastly he discussed and gave due weight to the
interests of the community. It was a fair and balanced judgment which cannot be
faulted. The sentences were not startlingly inappropriate, nor do they induce a
sense of shock. The appellants and their cohorts brazenly, in broad daylight, in
the face of a substantial police presence, set upon a group of peaceful workers
and severely assaulted them with lethal weapons. They indiscriminately smashed
cars of innocent bystanders and pursued and assaulted other black persons who
had nothing to do with the striking workers. Amongst those assaulted were
women and elderly persons. It was demeaning and humiliating to them in the
extreme. A substantial jail sentence was, in my view, warranted particularly
where as a consequence of their actions a life was lost. The additional two years
imprisonment imposed on appellant 7 was also justified. The assault of which he
was convicted took place at two o’clock in the afternoon of the day in question,
long after the main attack had taken place. According to the state witnesses an
unknown black man came into a local doctor’s waiting-room and hid behind the
door. Five to six white men, one of whom was appellant 7, entered, struck the
man repeatedly with pickhandles and sticks to such an extent that extensive
bleeding from his head was observed. A tear-gas canister was activated and the
witnesses fled. When they returned the attackers and the unknown black man
had disappeared. The brutal assault on an unarmed man, outnumbered six to

one, by men armed with lethal weapons is deserving of an additional period of
direct imprisonment.

[13] I would therefore have:
(a)
allowed the appeal of all the appellants against their conviction and
sentence on count 2 and set them aside;
(b)
dismissed the appeal on sentence in respect of count 1 and appellant 7’s
appeal against his sentence on count 3;
(c)
considered increasing the sentence on count 1 in respect of all appellants
to an effective 8 years imprisonment.

………………….
P C COMBRINCK
JUDGE OF APPEAL
Concurs:

FARLAM JA

NAVSA et VAN HEERDEN JJA:

[14] We have had the benefit of reading the judgment of our colleague
Combrinck JA. Whilst we agree with his conclusion that, on the facts, the regional
magistrate correctly convicted the appellants of culpable homicide, we are
constrained to disagree that a confirmation of a conviction on that charge would
amount to a duplication of convictions.

[15] Before addressing that question we consider it necessary to place our
perspective of the behaviour of the appellants and their cohorts on record. A
white librarian, Ms Greyling, testified that shortly before the attack she witnessed
a number of vehicles and white people gathering in an area which she was
clearly able to see. One of their number addressed the assembled crowd. A
bakkie arrived bearing a pile of new pick-axe handles which were then
distributed. It is common cause that, apart from these pick-axe handles, others of
the group bore sjamboks or kieries. A municipal ambulance accompanied this
crowd as they set off in the direction of where the black workers had gathered. It
is also common cause that at some stage during the attack either an iron rod or a
kierie was seen lying on the seat of the ambulance and those black persons who
had been injured had understandably been most reluctant to be transported by
that ambulance to the hospital. The driver of the ambulance refused to allow at
least one injured person entry to the ambulance; the perception of this person
was that the driver formed part of the white crowd.

[16] An important aspect of the attack which we deem necessary to record is
that the first victim of the attack was a nature conservation official who had
arrived at the taxi rank near where the workers had gathered to drop his aunt off
there. He was oblivious of the workers’ strike and was totally unconnected to the
protest action. The white crowd had, without any provocation, set upon his car as
he reversed to leave the area. The car was damaged and he was physically
threatened to such an extent that he felt in danger of his life. Without prompt
police intervention he would, at the very least, certainly have been seriously
injured.

[17] Other important details of the attack and its consequences are set out
hereafter. Later that day, one black person was pursued by a small group of
white assailants (including appellant seven) into a doctor’s waiting rooms where
he was set upon and severely assaulted.

[18] A group of attackers proceeded partly on foot and partly in bakkies to a
parking area alongside a shopping centre and attacked people in the vicinity,
wielding pick-axe handles and sjamboks.

[19] An attack was also unleashed on customers at a fast food outlet within a
shopping complex. The attacks were indiscriminate, certainly not limited to
members of the group of striking workers, and with women and elderly people
also being victims.

[20] One man was attacked as he was attempting to close-up at his place of
employment. He was severely beaten and a woman at his place of employment,
who was attempting to leave the scene, was pulled out off her vehicle and set
upon.

[21] It is common cause that the police had to intervene to prevent attackers in
a bakkie from proceeding to the nearby black township.

[22] An additional important fact is that at least some members of the police
appeared sympathetic to the attackers.

[23] Seen in proper perspective the attack was intended to put the workers,
who had dared to go on strike, in their proper place. It was an unashamed racist
attack perpetrated more than a year after the introduction of a constitutional
order. It was arrogant in the extreme and incited terror amongst the black citizens
of Kuruman.

[24] Cars of innocent passers-by were also attacked and damaged by the
marauding white assailants.

[25] During the course of the attacks referred to above, Mr Garoetelwe Adam
Brown (the deceased) was so severely injured that he subsequently died in
hospital of blunt trauma to the head. Another tragic consequence of these events
was the revenge attack on a white correctional services official in the nearby
black township, who was burnt alive in his vehicle.

[26] Lest the incorrect impression be created, it is necessary to point out that
the appellants in their heads of argument did not attempt to challenge the
conviction of culpable homicide on the basis that it constituted a duplication of

convictions with the conviction on the public violence charge. Indeed, the
following part of the notice of application for leave to appeal is to the contrary:
‘[H]oewel dit afsonderlike skuldigbevindings regverdig het, moes die verhoorlandros die aanklagte
saamgeneem het vir doeleindes van vonnis.’

[27] In respect of the charge of culpable homicide the State’s case was that, in
perpetrating excessively violent assaults with dangerous weapons on unarmed
people, the white attackers ought reasonably to have foreseen that the death of
one or more of the victims might result. The defence to this charge throughout
the trial was that the death of the deceased was caused by people unconnected
to the group of assailants and, in the alternative, that there was no reasonable
foresight of death of any person. From a careful perusal of the record as a whole,
it is in our view evident that neither the State nor the defence would have
conducted the trial any differently had paragraph (c), as referred to earlier,1 not
been included in the public violence charge sheet.

[28] The appellants in their heads of argument and in their notice of appeal
contended that no factual basis existed for the conviction on the charge of
culpable homicide. Combrinck JA has effectively dispelled this contention.

[29] It is also necessary to record that during the hearing the question of the
duplication of convictions was initially raised mero motu by members of the
Bench. Counsel for the appellant was invited to respond and twice disavowed
reliance on this point. The presiding judge then decided to invite the parties to
submit further written argument on this aspect. This has been received.

[30] We turn to deal with the question of duplication of convictions. It is
important to note that in the magistrates court and in the court below the parties
were under no illusion that they were dealing with two separate charges even
though the following paragraph was, as pointed out by Combrinck JA, included in
the charge sheet dealing with public violence:

1 See para 17 above.

‘That the accused are guilty of public violence in that they on 31 August 1995 at Kuruman . . .
unlawfully and with common intent to disturb the public peace by violent means and to infringe
the rights of other persons, committed acts which assumed serious dimensions in that they:
(a)
. . .
(b)
. . .
(c)
unlawfully and negligently killed Garoetelwe Adam Brown by hitting him with pickaxe-
handles, sticks, sjamboks and other objects; . . .’

[31] With respect, Combrinck JA appears to see the inclusion of this
subparagraph as an end in itself. In proper perspective the reasoning appears to
be as follows: since the State chose to include the unlawful and negligent killing
of the deceased as one of the acts going to prove public violence it is bound by
that choice and it necessarily follows that in convicting the appellants of both
public violence and culpable homicide there is a duplication of convictions.

[32] It is necessary to consider first, the applicable section of the Criminal
Procedure Act 51 of 1977 (the Act). Section 83 provides as follows:
‘If by reason of any uncertainty as to the facts which can be proved or if for any other reason it is
doubtful which of several offences is constituted by the facts which can be proved, the accused
may be charged with the commission of all or any of such offences, and any number of such
charges may be tried at once, or the accused may be charged in the alternative with the
commission of any number of such offences.’

[33] Du Toit et al Commentary on the Criminal Procedure Act (Service 38,
2007) at 14-5 summarises the effect of s 83 in the following manner:
‘Section 83 authorizes the inclusion in the charge sheet of all the charges that could possibly be
supported by the facts, even if they overlap to such an extent that convictions on all or on some of
the counts would amount to a duplication of convictions . . . An accused may thus not object, at
the beginning of the trial, to the charge sheet or indictment on the basis that it contains a
duplication of charges. Such a duplication will occur where more than one charge is supported by
the same culpable fact . . . In short, it is the court’s duty to guard against a duplication of
convictions and not the prosecutor’s duty to refrain from the duplication of charges’.2

2 See in this regard S v Grobler en ‘n Ander 1966 (1) SA 507 (A) at 513E-H (per Rumpff JA) and
at 522E-523E (per Wessels JA). See also S v Gaseb and Others 2001 (1) SACR 438 (NMS) at
441a-442b and 465f-466d. In the latter case the accused were charged with four counts of rape,
the wording of all the charges being identical. Faced with an argument based on duplication of
convictions, the Namibia Supreme Court upheld all the convictions, holding that each of the four

[34] The proper enquiry is whether in reality there has been a duplication of
convictions. In order to address this issue it should be borne in mind that a single
act may have numerous criminally relevant consequences and may give rise to
numerous offences. Robbery for example may be committed by means of more
than one act.

[35] There is no infallible formula to determine whether or not, in any particular
case, there has been a duplication of convictions. The various tests that have
been formulated by our courts (to which Combrinck JA refers) are not rules of
law, nor are they exhaustive. They are simply useful practical guides and in the
ultimate instance, if these tests fail to provide a satisfactory answer, the matter is
correctly left to the common sense, wisdom, experience and sense of fairness of
the court. 3

[36] It has always been accepted that a logical point of departure is to consider
the definitions of those offences in regard to which a possible duplication might
have taken place.4

[37] In the present case we have to start with the definition of culpable
homicide which is the unlawful, negligent killing of another human being.
Negligence is assessed objectively, according to the standard of the reasonable
person. For a conviction of culpable homicide it must be shown beyond a
reasonable doubt that a reasonable person, in the same circumstances as an
accused, would have foreseen the death of a victim as a consequence of his or
her conduct and that a reasonable person would have taken steps to guard
against the foreseeable death.5

[38] Public violence on the other hand may be defined as the unlawful and
intentional commission by a number of people acting in concert of acts of

appellants had had sexual intercourse with the complainant without her consent and that each
had assisted the three others in turn in the rapes committed by them.
3 See R v Kuzwayo 1960 (1) SA 340 (A) at 343H-344C; S v Prins en ‘n Ander 1977 (3) SA 807
(A) at 813H-814A; S v Christie 1982 (1) SA 464 (A) at 485G-486A and Gaseb supra, at 451d-g.
4 Du Toit et al (Service 38, 2007) 14-6 Grobler supra at 512A, Prins supra at 814F; S v N 1979 (3)
SA 308 (A) at 311E; S v Moloto 1982 (1) SA 844 (A) at 849-850.
5 Jonathan Burchell Principles of Criminal Law 3 ed (2005) pp 159-160 and 674.

sufficiently serious dimensions which are intended forcibly to disturb the public
peace or security or to invade the rights of others.6

[39] In contesting multiple convictions it is often submitted that they are
premised on the same set of facts. This is, in fact, the so-called ‘evidence test’
sometimes applied by the courts in determining whether or not there is a
duplication of convictions. This test enquires whether the evidence necessary to
establish the commission of one offence involves proving the commission of
another offence. In this regard, Bristowe J, in the case of R v Van Der Merwe
1921 TPD 1 at 5 pointed out that ‘…if the evidence necessary to prove one
criminal act necessarily involves evidence of another criminal act, those two are
to be considered as one transaction. But if the evidence necessary to establish
one criminal act is complete without the other criminal act being brought in at all
then the two are separate crimes.’ (Emphasis added).

[40] That the evidence test is not necessarily at all decisive is also borne out
by the following dictum of Rabie CJ in S v Nkwenja en ‘n Ander 1985 (2) SA 560
(A) at 571H-J:
‘Die appellante se advokate het voor Coetzee R aangevoer dat die appellant nie aan albei
misdade skuldig bevind kon gewees het nie omdat “op dieselfde getuienis betrefende die geweld
wat uitgeoefen was, staatgemaak is om beide misdade te bewys”. Dit is ‘n verkeerde siening van
die saak. Strafbare manslag en roof is twee heeltemal verskillende misdade. By die eerste het ‘n
mens te doen met die nalatige dood van ‘n mens, en by die roof gaan dit om die gebruik, of
dreigement, van geweld om diefstal te pleeg. Die oorweging dat die geweld wat in die uitvoering
van ‘n roof gepleeg is tot die dood van die slagoffer gelei het, kan aan die essensiële verskille
tussen die misdade nie afdoen nie. ‘n Verhoorhof sal vanselfsprekend trag om ‘n beskuldigde nie
tweemaal vir dieselfde geweld te straf nie, maar dit beteken nie dat iemand wat ‘n ander in die
loop van ‘n rooftog dood, nie aan sowel roof as strafbare manslag skuldig bevind kan word nie.’

[41] It is clear that the State can and often will be able to prove the crime of
public violence without any reference whatsoever to the negligent or other killing
of any person. The opposite is also true ─ the offence of culpable homicide is
capable of proof independent of acts of public violence. Both propositions hold
good in the present case. The evidence of the general disturbance caused by the

6 Ibid p 867.

assailants to the public order would be sufficient to secure a conviction on the
public violence charge. The State was at liberty to continue to prove the offence
of culpable homicide.

[42] Another test which is sometimes applied by the courts in determining
whether there is a duplication of convictions is the so-called ‘intention test’. In
terms of this test, if a person commits several acts, each one of which could be a
separate offence on its own, but they constitute a continuous transaction that is
carried out with a single intent, his or her conduct would constitute only a single
offence.7  However, as pointed out by Wessels JA in Grobler supra at 523F-H:
‘In so far as the “single intent” and “continuous transaction” test is concerned, the distinction
between motive and intent and the different intents inherent in different offences must not be
overlooked . . .If a person breaks into a room intending to steal from the occupiers and does so at
one and the same time it might be said that in substance he committed only one offence.
Assuming he enters and steals the goods of the first person while he is asleep and then proceeds
to the next person who awakes after his property has been stolen. In order to silence this person
the accused renders him unconscious with a blow to the head. The third person is awakened, and
the accused then forcibly deprives him of his goods before departing. Common sense suggests
that the accused may properly be convicted of housebreaking with intent to steal and theft,
assault and robbery.’

[43] It can hardly be said that a group of people can have a common intention
to commit culpable homicide, as the fault element of this offence by definition lies
in negligence. This is a common-sense approach.

[44] In the present case the group that had gathered near the library had
conspired to intimidate and teach the black workers a lesson. They were clearly
intent on committing acts of sufficiently serious dimensions and thereby forcibly
to disturb the public peace. If in so doing they commit acts separate from that
which was intended, such as in this case the negligent killing of the deceased, it
is clearly not only permissible, but also eminently fair and just that they be held
liable on that basis. Indeed, a court may well in those circumstances be duty-
bound to hold actors liable for the separate unlawful acts perpetrated by them.
Anything less will frustrate the public interest and the rule of law.

7 See Du Toit et al (Service 38, 2007) op cit 14-8.

[45] What we have said above is substantiated by the manner in which the
entire trial was conducted in the trial court. The State set out to prove public
violence by relying on the general mayhem caused, and intended to be caused,
by the white assailants. The primary defence to this was that the State did not
prove the participation of the appellants (ie a question of identification).

[46] It is clear from the regional magistrate’s judgment that this is also the
manner in which he viewed the matter. In his judgment, the evidence in respect
of the culpable homicide charge is dealt with in an entirely separate and distinct
discussion from that on the public violence charge and the legal principles
governing public violence.

[47] For all the reasons set out above, the conviction on the charge of culpable
homicide does not amount to a duplication of convictions and must therefore be
confirmed.

[48] The court below recorded that it had seriously considered giving notice of
the possibility of an increase in sentence but decided against it because of the
lengthy delay in finalising the trial. In this regard the appellants were fortunate. At
the commencement of this judgment we recorded our perspective of the moral
opprobrium attaching to the conduct of the appellants. The effect of what
Combrinck JA suggests might be to arrive at exactly the same result as that
arrived at by the regional magistrate on the question of sentence. It appears that
the approach by our colleague is, in effect that, although the appellants cannot
legitimately be held liable for culpable homicide, over and above their being guilty
of public violence, they might in any event be punished for both. On his approach
the conviction of culpable homicide falls away, but the sentence for this offence
might effectively be ‘transposed’ and ‘added’ to the sentence previously imposed
in respect of the conviction of public violence. In our view this would effectively
translate into the duplication which he apparently feels himself constrained to
avoid.

[49] We see no reason to interfere with the sentences and accordingly the
following order is made:
The appeal is dismissed.

_________________
M S NAVSA
JUDGE OF APPEAL

_________________
B J VAN HEERDEN
JUDGE OF APPEAL
CONCUR:

D MLAMBO JA

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
30 NOVEMBER 2007
Status:
Immediate
Please note that the media summary is intended for the benefit of the
media and does not form part of the judgment of the Supreme Court of
Appeal

ALEXANDER GEORGE WHITEHEAD & OTHERS v THE STATE

1.
Appellants were part of a group of white persons that perpetrated a
racist attack against black workers and black citizens of the town of
Kuruman.  Mr Gaoretelwe Adam Brown was killed during the attacks.
The appellants were convicted of public violence and of culpable
homicide in the regional magistrate’s court.

2.
The appellants were sentenced to an effective eights years’
imprisonment. They appealed against the conviction on the count of
culpable homicide and the sentence imposed on the count of public
violence.

3.
The basis of the appeal was that there was no causal connection
between the deeds of the appellants and the death of the deceased and
that the State had failed to prove negligence on their part. It was also
contended later that there had been a duplication of convictions. It was
contended that after convicting the appellants of public violence, part of
which involved the act that resulted in the death of the deceased, the
magistrate was not entitled to proceed thereafter to convict them of
culpable homicide.

4.
It was unanimously held that on the facts a conviction of culpable
homicide was justified. The majority of the court held that there had been
no duplication of convictions and that the sentences were appropriate ─
the attacks had been arrogant in the extreme and had incited terror in
the black citizens of the town. Men, women and the elderly had all been
targets.

5.
Two members of the court held that there had indeed been a
duplication of convictions and that the conviction of culpable homicide
had to be set aside.

6.
The appeal was dismissed.

--ends--