THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No 249/05
REPORTABLE

In the matter between:

RICHARD DITSHELE MOLIMI                        FIRST APPELLANT
MOKGOBE ISHMAEL MASHOESHOE     SECOND APPELLANT
and

THE STATE                                                             RESPONDENT

Coram:
Zulman, Van Heerden JJA et Cachalia AJA

Heard:
20 March 2006

Delivered: 29 March 2006

Summary:
The ‘rules’ pertaining to the reception of hearsay evidence under s 3 of the
Law of Evidence Amendment Act 45 of 1988 must be followed for reasons of
fairness to an accused. But it does not follow that if these rules were not
strictly complied with, the trial was unfair –
Robbery and murder on the basis of common purpose doctrine – forseeability
– gang robbery with the use of firearms – one gang member taking hostage
while fleeing on a frolic of his own. Hostage killed accidentally by bystander.
Not foreseeable by other participants in common purpose –
Requirements for proof of unlawful possession of firearms stated –
possession by one gang member not to be imputed to another.

Neutral citation: This judgment may be referred to as Molimi v The State
[2006] SCA 38 (RSA)

_____________________________________________________

JUDGMENT
_____________________________________________________
CACHALIA AJA

[1] On 30 October 2000 a robbery took place at the Clicks store at
Southgate Mall, Johannesburg. Arising therefrom the two appellants were
indicted with one other accused (accused 1) in the Johannesburg High Court
before Makhoba AJ on charges of robbery,1 attempted murder, the unlawful
possession of fire-arms and ammunition,2 kidnapping and two counts of
murder – seven charges in all.

[2] The undisputed facts are that at approximately 11 am on the day of the
incident, a security officer in the employ of Fidelity Guards arrived at Clicks to
collect money in accordance with his usual routine. He entered the cash office
where the store manager (the first appellant) and a female employee of Clicks
were present. They handed to him an amount of money, which he transferred
into a container. As he was leaving the store in possession of the container,
four armed men entered. Two of them confronted him and ordered him back
into the cash office where they instructed him to empty the contents of the
container into a black bag, which he did. The intruders then ordered him into a
safe in the store together with the first appellant. The female employee had in
the meantime fainted.

[3] As the robbers fled with their loot there was an exchange of gunfire
between one of the robbers and a Clicks security guard. The robber and the
security guard were fatally wounded in the exchange. The robber died on the
scene, the security guard later in hospital. The death of the security guard
formed the basis of the second count (murder), the first count being robbery.

[4] The gunfire attracted the attention of a bystander in the shopping mall.
As the three other robbers ran in his direction towards the exit, they pointed
their firearms at him, but did not shoot. He then drew his firearm and shouted
at them to drop theirs. They ignored his warning as they ran towards the exit
of the mall. He pursued accused 1 who dropped the bag he was carrying and
attempted to take refuge in a store near the exit. Once in the store, accused 1

1 Robbery with aggravating circumstances, as described in s 1 of the Criminal Procedure Act
51 of 1977.
2 In contravention of ss 2 and 36 read with ss 1 and 39 of the Arms and Ammunition Act 75 of
1969.

turned around to face his pursuer, pointing a firearm at him at the same time.
The man reacted by discharging one shot from his firearm in the direction of
accused 1. It missed accused 1 but struck an employee in the store instead.
In response, accused 1 retreated further into the store, this time taking a
young man as hostage with him. While holding the hostage with a firearm
pointed at the hostage’s head, he ordered the bystander to surrender his
firearm. Instead the bystander fired at him. This time the bullet struck the
hostage instead, fatally wounding him. Accused 1 then eventually laid down
his firearm and surrendered. The taking of the hostage and his subsequent
accidental fatal shooting formed the basis of the murder and kidnapping
charges in counts 3 and 7. The attempted murder charge (count 4) arose from
the injury to the employee who had also accidentally been shot by the
bystander.

[5] In the court a quo the appellants and accused 1 pleaded not guilty to all
seven counts. They obtained legal aid and were each separately represented,
but were convicted and sentenced to the following terms of imprisonment on
each of the seven counts: count 1 (robbery) 15 years; count 2 (murder of the
Clicks security guard) life imprisonment; count 3 (murder of the hostage)
15 years; count 4 (attempted murder of the injured employee) three years;
count 5 (unlawful possession of firearms) four years; count 6 (unlawful
possession of ammunition) one year, and count 7 (kidnapping of the hostage)
three years. They each received effective sentences of life imprisonment.
Only the two appellants applied for and were granted leave to appeal against
their convictions.

[6] In convicting the appellants the court a quo accepted that the state had
proved that the first appellant, who as I mentioned earlier, was the Clicks
store manager at the time of the incident, had initiated and planned the
robbery with the assistance of the second appellant. As an ex-employee of
Fidelity Guards the second appellant used to accompany the security officer
(referred to in para 2) to collect money from Clicks. He had been familiar with
this routine, a fact that was known to the first appellant when he enlisted the

second appellant’s assistance for the operation. For his part, the second
appellant recruited accused 1 and three others to carry out the robbery.

[7] The evidence disclosed that accused 1 had made a statement to the
police on the day of his arrest implicating himself and both appellants. In it he
stated that the second appellant had contacted him on his cellphone six days
before the robbery. They arranged a meeting with three others where the
second appellant informed them that the first appellant had given him a tip-off
about money that could be ‘taken’ from Clicks. Two days later, the statement
continued, he met with the first appellant to discuss the detail of the operation.
The first appellant told him that when the fidelity guard arrived to collect the
money, he would alert him on his (accused 1’s) cellphone, first to inform him
that the guard had arrived, and again when the guard was leaving. The details
were finalised at a subsequent meeting with the first appellant the day before
the robbery. The rest of the statement contains details of the cellphone
contact between accused 1 and the appellants on the day of the robbery. It
also describes how the robbery occurred, which accorded with the eye-
witness accounts of the incident.

[8] The first appellant was arrested a day after the robbery, the second
appellant two months later. The second appellant also made a statement to
the police implicating the first appellant and himself in the robbery. The
statement describes how the first appellant contacted him a week before the
robbery; the subsequent meeting between them and accused 1; the second
appellant’s communication, by cellphone, with accused 1 on the morning of
the robbery, and the cellphone call from the first appellant to him after the
robbery, when the first appellant had expressed his displeasure at the failure
of the robbery.

[9] The statements were admitted as part of the evidence after the trial
court had conducted hearings on their admissibility. The evidence of certain
cellphone records of the three accused, which was not challenged,
corroborated the statements. This evidence, together with the fact that the trial
court had found the testimony of the three accused during their defence to be

mendacious, was the basis for the convictions of the appellants. Accused 1
was, as it were, caught red-handed at the scene of the robbery.

[10] The appellants challenge their convictions on the following basis.
Firstly, it is contended on behalf of the first appellant that the statements
made by accused 1 and the second appellant were inadmissible against him,
because of their hearsay character. Similarly, the second appellant takes
issue with admissibility of the statement by accused 1 against him. In addition
he insists that the statement which he made to the police was untrue and not
made voluntarily. It should, so it is contended, have therefore been
disallowed. Secondly, and in the alternative, the appellants contend that, if the
statements were admissible, thereby establishing, against them, a case based
on common purpose to rob the Clicks store, the actions of accused 1 in taking
a hostage, and the actions of the bystander which resulted in the death of the
hostage and injury to an employee (counts 3, 4 and 7) were not forseeable by
them as part of the execution of the common purpose. Finally, the appellants
contend that, as there had been no evidence that they had possessed
firearms and ammunition (counts 5 and 6), their conviction on those counts on
the basis of the common purpose doctrine was wrong.

[11] I deal first with the admissibility of the incriminating hearsay
statements. The challenge is a narrow one, the contention being that the trial
court disregarded the ‘rules’ governing the admissibility of hearsay evidence
under s 3 of the Law of Evidence Amendment Act 45 of 19883 (the Act) that

3 ‘(1)
Subject to the provisions of any other law, hearsay evidence shall not be admitted as
evidence at criminal or civil proceedings, unless –
(a)
each party against whom the evidence is to be adduced agrees to the admission
thereof as evidence at such proceedings;
(b)
the person upon whose credibility the probative value of such evidence depends,
himself testifies at such proceedings; or
(c)
the court, having regard to –
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence might entail;
and

were laid down in the following terms by this court in S v Ndhlovu and
Others:4

‘[A]n accused cannot be ambushed by the late or unheralded admission of hearsay evidence.
The trial court must be asked clearly and timeously to consider and rule on its admissibility.
This cannot be done for the first time at the end of the trial, nor in argument, still less in the
court’s judgment, nor on appeal. The prosecution, before closing its case, must clearly signal
its intention to invoke the provisions of the  Act, and, before the State closes its case, the trial
Judge must rule on its admissibility, so that the accused can fully appreciate the full
evidentiary ambit he or she faces.’

[12] The trial court was not asked, in clear terms, to rule on the admissibility
of the extra-curial statements against the appellants. The prosecutor did not,
before closing her case, expressly signal her intention to invoke the provisions
of the Act and the trial judge made no explicit ruling on their admissibility as
against the appellants until handing down his judgment. This much is common
cause.

[13] In the relevant passage of Ndhlovu,5 Cameron JA was in my view
clearly not laying down an inflexible rule. On the contrary he pointed out that
whereas the common law rule, which excludes all hearsay evidence subject to
certain recognised exceptions, is excessively rigid and inflexible (and
occasionally even absurd), the Act has the virtue of creating ‘supple standards

(vii)
any other factor which should in the opinion of the court be taken into
account,
is of the opinion that such evidence should be admitted in the interests of justice.
(2)
The provisions of ss (1) shall not render admissible any evidence which is
inadmissible on any ground other than that such evidence is hearsay evidence.
(3)
Hearsay evidence may be provisionally admitted in terms of ss (1)(b) if the court is
informed that the person upon whose credibility the probative value of such evidence
depends, will himself testify in such proceedings: Provided that if such person does not later
testify in such proceedings, the hearsay evidence shall be left out of account unless the
hearsay evidence is admitted in terms of para (a) of ss (1) or is admitted by the court in terms
of para (c) of that subsection.
(4)
For the purposes of this section –
“hearsay evidence” means evidence, whether oral or in writing, the probative value of which
depends upon the credibility of any person other than the person giving such
evidence;
“party” means the accused or party against whom hearsay evidence is to  be adduced,
including the prosecution.’

4 2002 (6) SA 305 (SCA) para 18.
5 Referred to above in para 11 of this judgment.

within which courts may consider whether the interests of justice warrant the
admission of hearsay notwithstanding the procedural and substantive
disadvantages its reception might entail.’6 In formulating the rule, Cameron
JA’s overall concern was one of fairness to an accused who is confronted with
hearsay evidence. His opening remarks in the passage quoted above thus
make clear that the reception of the hearsay evidence must not surprise the
accused, coming at a stage in the trial when he or she is unable to deal with it.
In a similar vein his closing remarks emphasise that the accused must
understand the full evidentiary ambit of the case against him.

[14] The touchstone for the admission of hearsay evidence in terms of the
Act is always whether the ‘interests of justice’ justify it. The real question
therefore is not whether the ‘rule’ formulated by Cameron JA was strictly
complied with. Patently it had not been. What this court must ask itself is
whether, in the circumstances of this case, the reception of the hearsay
evidence was unfair to the appellants and therefore not in the ‘interests of
justice’.7

[15] It is important to examine how the trial court dealt with the admissibility
of the two statements in issue. The statements that were attributed to accused
1 and the second appellant were admitted into evidence ‘provisionally’.
Accused 1’s statement was held to be admissible against him on the basis
that he denied having made any statement to the police. His version was that
the police had written the statement. The words, he said, were theirs, not his.
As the voluntariness of the statement was not in issue the court correctly ruled
that it was admissible against him. Likewise the second appellant’s statement
that he had made to the police was ruled admissible against him after the
court rejected his version that he had been induced to make the statement as
a result of an assault and promises by the police.

6 See S v Ndhlovu above paras 14-15.
7 Cf Key v Attorney General, Cape Provincial Division, and Another 1996 (2) SACR 113 (CC)
para 13 which deals with the admissibility of unconstitutionally obtained evidence.

[16] At the conclusion of the State’s case, the only evidence against the
appellants were the abovementioned cellphone records that linked the three
accused and, in the case of the second appellant, his own statement that had
been found to be admissible against him. Their counsel brought applications
for their discharge in terms of s 174 of the Criminal Procedure Act 51 of 1977.

[17] It is clear from a perusal of the trial record that Ndhlovu loomed large in
the proceedings during the ‘trial-within-a-trial’ of accused 1 and also during
the discharge applications by the appellants. Thus, during the ‘trial-within-a-
trial’ to determine the admissibility of the statement that had been made by
accused 1 to the police, the question whether counsel for the appellants
would cross-examine the various state witnesses arose. It was assumed that
they would be entitled to do so after counsel for the second appellant had
pertinently informed the court that the effect of the Ndhlovu judgment was to
render a hearsay statement by accused 1 admissible against the appellants.
On this basis the court indicated that counsel for the appellants were entitled
to put questions to any witness who would testify on the admissibility of the
statements.

[18] During the discharge application counsel for the second appellant
accepted that the implication of Ndhlovu was that he would have to impugn
the evidence of accused 1 if he chose to testify. This was because it had been
clear to him that the statement that had been made by accused 1 was
admissible against his client. In opposing the discharge application, the
prosecutor relied squarely on this case. She however assumed, wrongly, that
the holding in Ndhlovu related to confessions, whereas quite clearly, it did not.
It dealt with the admissibility of extra-curial statements, other than confessions
envisaged in s 219 of the Criminal Procedure Act 51 of 1977.8 In reply
counsel for the first appellant confined himself to disputing the admissibility of
the statements by accused 1 and the second appellant, which incriminated his
client, on the basis that they were confessions. As it is common cause that
neither the statement by accused 1, nor that of the second appellant, were

8 Section 219 of the Criminal Procedure Act states: ‘No confession made by any person shall
be admissible as evidence against any other person.’

‘confessions’ within the meaning of s 219, counsel’s submission in this regard
was wrong. This much was correctly conceded during the appeal. For his part
counsel for the second appellant submitted that because the statements were
admitted ‘provisionally’ their status was unclear.

[19] The learned judge refused the application for the discharge of the two
appellants. His reasons do not contain any reference to Ndhlovu. However
this is what he said:

‘In the present case…there are statements which I ruled to be admissible. Whether it is
provisional or not is immaterial. The fact remains that at this stage of the proceedings, they
are part of the record and I have admitted it. These two statements by accused 1 and 3
implicate accused 2.’9

[20] Despite it being unclear from the judge’s ruling whether the extra-curial
statements by accused 1 and the second appellant were admissible against
their co-accused, there could have been no doubt in the minds of counsel for
the appellants, in the light of what had transpired during the ‘trial-within-a-trial’
of accused 1 and the discharge application, that the extra-curial statement by
accused 1 was not only part of the state case against him, but also against
them. They should, if there was doubt, have asked the judge to clarify the
position before deciding whether or not their clients would testify in their
defence. For the first appellant, he had the added problem that he would have
to deal with second appellant’s incriminating statement. The second appellant
had very little option but to testify in the light of his failure to successfully
challenge the admissibility of the statement that he had made.

[21] Despite the overwhelming evidence against accused 1 his testimony
was no more than a bare denial of any involvement, by him or the appellants,
in the commission of the offences. In respect of the statement that he had
allegedly made to the police soon after his arrest, which was ruled admissible
against him, he maintained that the police had fabricated it. Understandably
he was not cross-examined on this aspect by counsel for either appellant.

9 Record Vol. 5 p 456-457.

[22] After accused 1 closed his case, the first appellant elected to testify. At
this stage, without the incriminating extra-curial statements by his two co-
accused, the only evidence against him were the cellphone records referred
to earlier. While incriminating, creating a strong suspicion of his complicity in
the events of the day, the records would not, in my view, without any further
evidence, have created a suffficient basis to convict him. The statements were
destructive of his case because they explained the cellphone records. This
much was conceded by counsel in argument before us. His election to testify
can therefore only be explained in the light of this realisation.

[23] The first appellant was cross-examined by the prosecutor on the
statement by accused 1 without any objection to its admissibility against him.
So too, the second appellant. In these circumstances it is clear that the
appellants were not labouring under any misapprehension regarding the
admissibility of the extra-curial statements against them. I must add that there
can be no suggestion, nor was there, that the cross-examination of the
appellants on the extra-curial statements by their co-accused was unfair.

[24] Having regard to the factors enumerated under s 3(1)(c) of the Act, I
have no doubt that the admission of the hearsay evidence contained in the
extra-curial statement by accused 1, against the appellants, was in the
‘interests of justice.’ The statement had been made soon after the accused
had been arrested, in circumstances where he had been caught red-handed.
His subsequent disavowal of the statement was correctly found to have been
untruthful. The evidence of the contents of the statement had been tendered
by the state for the purpose of explaining and placing the cellphone records in
perspective. Indeed the corroboration of important aspects of the statement
by the cellphone records confirmed its probative value. As Goldstein J
observed in another context: ‘(t)he evidence concerned so convincingly
completes the mosaic of the State case . . . it would be absurd to disregard
it.’10 The tendering of this evidence against the appellants came as no

10 Quoted in S v Ndhlovu above para 39.

surprise in the sense that they were unable to deal with it. They were able to
cross-examine accused 1 if they so wished and to deal with it in the
preparation and presentation of their cases. There was no prejudice to them
and the fairness of the trial had not been compromised.11

[25] Counsel for the appellants conceded, quite properly, that if the statement
by accused 1 was admissible against their clients, there would be no basis to
challenge their convictions on the first two counts (robbery and murder of the
security guard).  It is therefore not necessary to deal with whether the
statement that was made by the second appellant was properly admitted.
Even without this statement his conviction on these counts must stand.

[26] Before I turn to deal with the remaining convictions, comment is
warranted on the way in which the prosecutor and the trial judge dealt with the
issue of the admissibility of the extra-curial statements. The prosecutor was
aware throughout the trial that admissibility of statements, which would be
hearsay against the appellants, was crucial to the State case. She was aware
of the Ndhlovu judgment and brought it to the attention of the trial judge. Yet
she inexplicably failed expressly to indicate her intention to invoke the
provisions of the Act. Nor did the trial judge rule on the admissibility of the
hearsay statements against the appellants, despite Ndhlovu having been
brought to his attention.

[27] The trial court’s admission of the evidence ‘provisionally’ was
regrettable. The Act allows the admission of hearsay evidence on a
provisional basis when ‘the person upon whose credibility the probative  value
of such evidence depends, himself testifies (later) at such proceedings.’ If the
person does not testify the evidence must be left out of account.12 However
there is no such requirement when the hearsay evidence is required to be
admitted in the ‘interests of justice’. In such a case, as Ndhlovu makes clear,
‘the trial Judge must rule on its admissibility so that the accused can

11 Cf S v Ramavhale 1996 (1) SACR 639 (A) at 650i-651g.
12 Section 3(1)(b) read with s 3(3).

appreciate the full evidentiary ambit he or she faces.’13 A vague provisional
ruling, as was made in this case, is not conducive to such an appreciation and
may be prejudicial to an accused.14 It conflates the admissibility of the
evidence with its weight and may leave an accused unfairly in a state of
uncertainty.

[28] What was required in this case was a clear request by the prosecutor
that she would seek the admission of the statement by accused 1 against the
appellants, and the second appellant’s statement against the first appellant, in
terms of the Act. It was her duty to do so. The trial judge, for his part, was
under a duty to make a clear ruling on the admissibility of these statements.
The prosecutor’s and judge’s failure in this respect is regrettable.15 However,
as indicated above, in the circumstances of the present case, it did not render
the trial of either appellant unfair.

[29] I turn to deal with counts 3, 4 and 7. The appellants submit that the
sequence of events commencing with accused 1 taking a hostage and
culminating in the death of the hostage and injury to the employee from the
bystander’s gunshots was not forseeably part of the common purpose. They
should, accordingly, have been acquitted on these counts.

[30] In support of their contention they rely on two cases that were decided
in this court. The first is S v Talane16 where the facts briefly were that three
robbers, two of whom had firearms, entered a shop, tied up a shopkeeper and
his friend and then helped themselves to whatever they were able to take with
them. As they left, the shopkeeper and his friend managed to free
themselves. The shopkeeper pursued one of the robbers, firing at him. The
other robbers fled in another direction. Just as the shopkeeper had stopped
firing, having run out of ammunition, his friend called him back. As he turned
back, responding to his friend’s call, the robber he had been pursuing fired
two shots, fatally wounding him. The question on appeal was whether one of

13 See quotation above para 11.
14 See S v Ramavhale above p 651b-c.
15 See S v Ramavhale loc cit.
16 1986 (3) 196 (A) at 207E- 208A.

the other robbers who had fled in a different direction should have been
convicted, on the basis of common purpose, for the murder. It was found, on
the facts, that once the shopkeeper had emptied his firearm and turned his
back on the robber, he had no longer been endeavouring to prevent the
robbers from escaping. Accordingly the court held that it would be unfair to
hold that the other robber, who was probably far out of danger when the
shopkeeper had been shot, could be said to have fallen within the limits of
what he would have foreseen and reconciled himself therewith.

[31] The second case relied on is S v Munonjo en ‘n Ander.17  The
appellants, who were unarmed, had broken into a house intending to steal.
They were aware that the occupants were probably armed. One of them had
a ligature in case it became necessary to tie them up. One of the two
occupants produced a firearm but was disarmed by one of the appellants who
then shot both the occupants. Both appellants were convicted of murder. On
appeal the appellants blamed each other for what had happened. It had
therefore not been possible to determine which of them had fired the fatal
shots. The court found that the facts had established that the common
purpose extended only to a possible assault of the occupants as they would
have had to have tied them up if necessary. They could not, reasoned the
court, have subjectively forseen the extraordinary turn of events and the
possibility of death. Their appeals on the murder count were accordingly
upheld.18

[32] The facts in the two cases relied upon are very different from this
instance. In Talane the shopkeeper had ended the pursuit of the robbers
before he had been shot and in Munonjo the use of firearms had not been
contemplated as the housebreakers were unarmed. In the present matter the
robbers were still in the process of fleeing, having exchanged gunfire with
inter alia the deceased security guard when the bystander intervened.
Nevertheless the principle sought to be extracted from these cases by
counsel for the appellants is that if, in the execution of a common purpose,

17 1990 (1) SACR 360 (A).
18 They were however convicted as accessories after the fact of murder.

one of the participants to the common purpose commits an unlawful act,
which is so unusual or extraordinary that it falls outside what was foreseeably
contemplated by the other participants, they cannot be held liable for that act.
On this basis it is submitted that the occurrence that led to the commission of
these offences (the bystander’s intervention and the hostage taking by
accused 1), was so far removed from the actual common purpose, ie robbery
with the use of firearms, that it could not have been forseeable by the
appellants.

[33] The submission is not novel. It has long been accepted that the
operation of the common purpose doctrine does not require each participant
to know or foresee in detail the exact manner in which the unlawful
consequence occurs.19 Were it otherwise, it would not be possible to secure a
conviction simply on the basis that some event had happened during the
execution of the common purpose that all the participants in the common
purpose had not more or less planned for. All that is required for the state to
secure a conviction on the basis of common purpose is that an accused must
foresee the possibility that the acts of the participants may have a particular
consequence, such as the death of a person, and reconciles himself to that
possibility.20

[34] The evidence shows that the first appellant initiated and then planned
the robbery in collaboration with the second appellant and accused 1. It was
foreseeable that, in the execution of the robbery and during the flight of
accused 1 and his fellow robbers, firearms may be used to overcome any
resistance that they encountered. They reconciled themselves to this
possibility. Their conviction for the murder of the security guard on this basis
is therefore uncontroversial.

[35] As uncontentious, in my view, is the conviction for the attempted
murder of the employee (count 4). The fact that resistance to the escape

19 CR Snyman Criminal Law 4ed p 262; R v Shezi 1948 (2) SA 119 (A) at 128. Cf S v
Munonjo above at 364a-c where the principle was said to be inapplicable to the facts of that
case.
20 See Snyman above p 265.

arose from the actions of a private citizen is not, as counsel tried to persuade
us otherwise, of any consequence. Nor is the fact that, at the time the
bystander fired his first shot injuring the employee, he was under no legal duty
to stop the fleeing robbers. Once all the participants in the common purpose
foresaw the possibility that anybody in the immediate vicinity of the scene
could be killed by cross-fire, whether from a law enforcement official or a
private citizen, which in the circumstances of this case they must have done,
dolus eventualis was proved.21

[36] But the taking of the hostage by accused 1 falls into a different
category. It is probable that at the time he took the hostage, his co-robbers
had escaped through the exit of the shopping complex. He was therefore on
his own when he took the hostage while seeking refuge from the man who
was pursuing him. By taking a hostage he had, in my view, embarked on a
frolic of his own. These actions could hardly have been forseeable by the
other participants in the common purpose. To hold otherwise, as the court a
quo did, would render the concept of forseeability so dangerously elastic as to
deprive it of any utility. To put it another way, the common purpose doctrine
does not require each participant to know or forsee every detail of the way in
which the unlawful result is brought about. But neither does it require each
participant to anticipate every unlawful act in which each of the participants
may conceivably engage in pursuit of the objectives of the common purpose.
It is apparent that the unlawful act of hostage taking by accused 1, in the
circumstances of this case, was so unusual and so far removed from what
was foreseeable in the execution of the common purpose that it cannot be
imputed to the appellants. The convictions relating to the kidnapping and
murder of the hostage (counts 7 and 3) can therefore not stand.

[37] Counts 5 and 6 relate to the unlawful possession of firearms and
ammunition. It is common cause that the appellants, at no stage, had physical
possession of any firearms themselves. Despite this they were convicted on
these counts. The state sought to defend these convictions on the basis of the

21 See S v Nhlapo 1981 (2) SA 744 (A) at 751A-B.

decision by this court in S v Khambule22 where it was held that the common
intention to possess firearms jointly may be inferred in the circumstances of a
particular case. One such case, said the court, was where there was an
intention of a gang of robbers to use firearms in the execution of a robbery. In
this situation, said the court, the possession of the firearms is advantageous
to each of the members of the gang. Therefore, the court reasoned, each
member of the gang associates himself or herself with the possession of the
firearms by every other gangmember. However in S v Mbhuli23 this court was
subsequently unable to agree with this reasoning. Instead it approved of
Marais J’s reasoning in S v Nkosi24 where he set out the law on this question
in the following terms:

‘The issues which arise in deciding whether the group (and hence the appellant) possessed
the guns must be decided with reference to the answer to the question whether the State has
established facts from which it can properly be inferred by a Court that:
(a)
the group had the intention (animus) to exercise possession of the guns through the
actual detentor and
(b)
the actual detentors had the intention to hold the guns on behalf of the group.
Only if both requirements are fulfilled can there be joint possession involving the group as a
whole and the detentors, or (common purpose)25 between the members of the group to
possess all the guns.’

[38] It follows that Khambule was overruled by Mbhuli, and is no longer
good law. The state’s reliance on it is therefore misplaced. Having failed to
meet the requirements as stated in Nkosi, the State had not established any
basis for the conviction of the appellants. The convictions on these counts
must therefore also be set aside.

22 2001 (1) SACR 501 (SCA) para 10.
23 2003 (1) SACR 97 (SCA) para 71.
24 1998 (1) SACR 284 (W) at 286h-i.
25 Save for the reference to common purpose, the court approved of Marais J’s reasoning.

[39] In the result the following order is made:

1.
The appeal by the appellants against their convictions on counts 1, 2
and 4 are dismissed;
2.
The appeal by the appellants against their convictions on counts 3, 5, 6
and 7 is upheld. Their convictions and sentences on these counts are set
aside.

____________
A CACHALIA
ACTING JUDGE OF APPEAL

CONCUR:

ZULMAN JA
VAN HEERDEN JA