THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not reportable
Case No: 1290/16

In the matter between:

LUNGISA GWABABA

Applicant

and

THE STATE

Respondent

Neutral citation: Gwababa v S (1290/16) [2016] ZASCA 200 (7 December 2016)

Coram:
Maya AP

Heard:
In Chambers

Delivered: 7 December 2016

Summary: Leave to appeal – refusal of application by two judges of the SCA in
terms of s 17(2) of the Superior Courts Act 10 of 2013 – application to the President of
the SCA in terms of s 17(2)(f) to refer the decision to the court for reconsideration and,
if necessary, variation – a grave injustice constitutes exceptional circumstances.

__________________________________________________________________
ORDER
__________________________________________________________________
On appeal from: North Gauteng High Court, Pretoria (Bam J, sitting as court of
first instance):

1.
Condonation is granted to the applicant for the late filing of his application.

2.
The decision of this court dated 25 August 2016 dismissing the applicant’s
application for special leave to appeal against his conviction and sentence is referred to
the court of reconsideration and, if necessary, variation, in terms of s 17(2)(f) of the
Superior Courts’ Act 10 of 2013.

3.
The applicant is directed to lodge with the registrar of this court six (6) copies of
his application in terms of s 17(2)(f) of the Superior Courts’ Act 10 of 2013, as well as
six (6) copies of his initial application (case no. 578/16) to this court for special leave
to appeal, within one month of the date of this order and thereafter to comply with the
rules of this court relating to the conduct of appeals.
__________________________________________________________________
JUDGMENT
__________________________________________________________________
MAYA AP

[1] This judgment concerns an unopposed application lodged in terms of s 17(2)(f)
of the Superior Courts Act 10 of 2013 (the Act). The applicant, Mr Loyiso Gwababa,
was the sixth accused in a criminal trial in the Gauteng Division of the High Court,
Pretoria (Bam J), in which he, together with eight others, were all convicted as charged

on 25 August 2015 and each sentenced, on 11 November 2015, to 15 years’
imprisonment. Accused 9 was found not guilty and discharged. The applicants’
application for leave to appeal was dismissed on 11 December 2015.

[2] However, on 24 May 2016 this court granted the erstwhile accused 4, Mr
Bonginkosi Mdluli, special leave to appeal against his conviction and sentence. And,
on 13 September 2016, the Acting President of the court, in Malele v S (723/16) and
Ngobeni v S (724/16) ZASCA 115, referred to the court for reconsideration and, if
necessary, variation a prior order of this court dismissing the application for special
leave to appeal against conviction and sentences of the erstwhile accused 1 and 5, in
terms of s 17(2)(f) of the Act.

[3] On 25 August 2016 two judges of this court dismissed the applicants’
application for special leave to appeal against his conviction and sentence, in case
578/2016. He now seeks a referral to the President of this court of that order for
reconsideration in terms of s 17(2)(f) of the Act, and if necessary, variation and the
condonation of the late filing of the application.

[4] The applicant relies heavily on the fact that Mr Mdluli was granted special leave
to appeal to the Full Court of the Gauteng Division against his conviction and sentence
upon facts and questions of law similar to those upon which his own conviction and
sentence were based and that former accused 1, 5, 7 and 8 were successful in their
applications in terms of s 17(2)(f).

[5] As was pointed out in Malele v S, the fact that the applicant’s former co-
accuseds’ applications for leave to appeal were successful does not necessarily mean
that he should, without more, also be granted leave to appeal. I am enjoined to

determine his application on its own merits and consider if the applicant has
established exceptional circumstances warranting the reconsideration and, if necessary,
variation of the order refusing him special leave.

[6] In its judgment the trial court set out the summary of the substantial facts
relating to the murder charge as follows:
‘[I]t is all alleged that on [26 February 2013] the deceased [Mr Silvesta Jossefa Marcia], a taxi
driver, was confronted by accused 1 and 2 concerning a traffic rule violation, in that he was
obstructing other traffic. An argument ensued during which the deceased’s driver’s licence was taken
and his vehicle attached. Back-up assistance of about 6 other policemen was obtained. The deceased
was handcuffed to a police bakkie whilst his body remained outside. The police vehicle then drove
off dragging the deceased behind it, with another police vehicle following. Between the time of the
deceased being dragged and the time he was booked in at the Daveyton Police Station, the deceased
sustained injuries to which he succumbed whilst in custody. It was further alleged that, at all relevant
times the accused acted with a common purpose.’

[7] The trial court recorded the ‘final diagnostic analyses on the cause of death’ to
include the following:
‘(i)
Back lap dissection on second post mortem showed extensive soft tissue injuries which in a
dark-skinned person would not be apparent.
(ii)
the scrotal evasion technique from inside the pubes showed injuries to the testes which were
not visible from the outside examination.
(iii)
The toxicology results done by Dr G Perumal states as follows: Cerebral oedema and
generalised congestion of the brain and lungs.
The pathologist, Dr Solly Skhosana, concluded that the cause of the deceased’s death
was ‘extensive soft tissue injuries and hypoxia’.

[8] In relation to the time and place where the injuries were sustained by the
deceased, the trial court said (at para 46):

‘Apart from the soft tissue injuries the deceased could have sustained during the struggle, [ie during
the arrest] it is clear that no other injury was directly inflicted by the policemen [accused 1 and 2].’
And further:
‘Accordingly, it has to be inferred that the majority of the injuries could only have been sustained
during the dragging episode and later in the cells. It necessarily follows that the fact that blood was
later noticed in the bakkie means that the deceased was probably bleeding from an injury sustained
during the dragging episode.’

[9] Regarding the applicant, the trial court recorded the following. The applicant
was a member of the back-up squad. He accompanied accused 1, 5 and 4 to the scene
where accused 1 pointed out the deceased, who was encircled by a crowd. The
applicant instructed the deceased to get into the police bakkie and when he refused he
grabbed him by his belt, assisted by accused 2. The deceased resisted and during the
ensuing struggle both the deceased and the applicant fell down. Accused 5 succeeded
to put handcuffs on only one hand of the deceased. The applicant then managed to cuff
both hands of the deceased’s body with another pair of hand cuffs. But because he
resisted arrest it was impossible to cuff his hands behind his back in accordance with
the relevant standing order. The crowd also contributed to the chaos by threatening to
burn the police vehicle. The policemen finally managed to get the deceased into the
bakkie with his hand cuffed in front of his body, but in a position above and behind his
head secured to the leg of a bench inside the bakkie. At that stage several policemen
were moving about behind the bakkie. More members of the community, shouting and
causing a ruckus, gathered and surrounded the bakkie and in the melee, a shot was
fired, apparently in the air. Accused 8 tried to pick up the deceased’s right leg. The
applicant reversed the bakkie for a short distance, causing the deceased’s upper body
to be pushed partly underneath the rear of the bakkie. Accused 7 went to the driver’s
side of the bakkie, stood near the driver’s door for a short while and walked away. At

that time, the window of the driver’s door of the bakkie was open with accused 6’s
elbow visible. The applicant then drove off, dragging the deceased behind it. As the
vehicle drove off, accused 2 and 8 picked up the deceased’s legs and moved with the
bakkie for a short distance, but fell behind when the vehicle increased its speed. The
bakkie, dragging the deceased behind it, drove away following by another police
vehicle, driven by accused 4.

[10] According to the applicant, he feared for his life and therefore only focussed
only on the crowd and what was happening in front of him in order to get away to
safety. For that reason he said he did not look at the rear view mirrors and drove on
believing that the deceased was inside the bakkie until he noticed, when he was about
200 metres away, that his colleagues behind him were flickering their vehicle’s lights
indicating that he must stop. It is only when he stopped that he discovered that the
deceased, who did not appear to have sustained serious injury, had fallen out of the
vehicle. The applicant assisted accused 4 to load him back in the bakkie. He delivered
him at Daveyton police station and left him in the custody of the station’s police.

[11] The trial court rejected the applicant’s version that he was unaware that the
deceased was being dragged behind the bakkie as he drove away. Having considered
the evidence before it the trial court found that ‘accused 2 to 8 assaulted the deceased
in the cell, thereby seriously injuring him’. It also found that ‘[t]here can be no doubt
that they foresaw that the injuries may result in his death’.

[12] I agree with the observations made by the Acting President in Malele v S that
the can be no doubt on the evidence that the deceased was assaulted after he had been
placed in the police cell, where it was later discovered that he had died. But, the single
witness to the assault, Warrant Officer Ngamlana, testified that when the deceased fell

down inside the cell he was surrounded by the policemen (accused 2 to 8) and that he
could not see when was happening, but heard what sounded like open hand claps. It is
therefore not clear from the judgment whether only one or more of the policemen
inside the cell assaulted the deceased. The basis for the finding that ‘accused 2 to 8
assaulted the deceased in the cell’ is, therefore, not clear from the judgment of the trial
court.

[13] The trial court, however, made the following finding in respect of the dragging
incident:
‘There can be no doubt that all the accused foresaw that in being dragged behind the bakkie the
deceased would sustain serious injuries which could result in death, yet they persisted in their
conduct of not stopping, or preventing it to continue, thereby clearly reconciling themselves with the
event and the eventual result.’

[14] With respect, it seems doubtful that the doctrine of common purpose as
enunciated in S v Mgedezi & others 1989 (1) SA 687 (A) at 705I-706B; S v Jama &
others 1989 (3) SA 427 (A) at 536D-H; S v Thebus & another 2003 (2) SACR 319
(CC) was applied properly by the trial court in this matter and it is likely that another
court may find differently in this regard. I also have a difficulty with the trial court’s
rejection of the applicant’s version, that he only focussed ahead and relied on his
colleagues behind the vehicle to ensure that everything was in order, as unrealistic and
improbable’ taking into account the circumstances prevailing at the scene of the
deceased’s arrest, including the threatening crowd and the quick succession of events.
I also question the trial court’s conclusion that the applicants’ form of intent (mens
rea) was dolus eventualis. In my view, another court might find differently.

[15] But it is not necessary to say more on this aspect. In my view, and considering
what has been said above, a grave injustice may otherwise result were I to refuse to

refer the decision of 25 August 2016 dismissing the applicants application for special
leave to appeal to the court for reconsideration and, if necessary, variation. That in
itself constitutes exceptional circumstances enabling me, mero motu, to refer the
decision of 25 August 2016 to the court for reconsideration.

[16] In the result, I make the following order:

1.
Condonation is granted to the applicant for the late filing of his application.

2.
The decision of this court dated 25 August 2016 dismissing the applicant’s
application for special leave to appeal against his conviction and sentence is referred to
the court of reconsideration and, if necessary, variation, in terms of s 17(2)(f) of the
Superior Courts’ Act 10 of 2013.

3.
The applicant is directed to lodge with the registrar of this court six (6) copies of
his application in terms of s 17(2)(f) of the Superior Courts’ Act 10 of 2013, as well as
six (6) copies of his initial application (case no. 578/16) to this court for special leave
to appeal, within one month of the date of this order and thereafter to comply with the
rules of this court relating to the conduct of appeals.

____________________

MML MAYA

Acting President

APPEARANCES

For the Applicant:
Alexander Montano Attorneys,

Johannesburg

Kramer Weihmann & Joubert Attorneys,

Bloemfontein