REPORTABLE
IN THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
Case Number : 354 / 98
In the matter between :
EPHRAIM PHALLO

First Appellant
JONAS GOPANE
Second Appellant
ROBERT LENTSWE
Third Appellant
BENJAMIN MORE

Fourth Appellant
ISAAC RAMADIE
Fifth Appellant
ERASMUS DIRE
Sixth Appellant
PHILEMON GWILI

S e v e n t h
Appellant
VICKEY NAKEDI

Eighth Appellant
SELLO DINTOE
Ninth Appellant
ANNANIUS DIBODO
Tenth Appellant
PETER OLIFANT

Eleventh Appellant
SOLOMON STEMBER
Twelfth Appellant
CORNELIUS THEBE
Thirteenth Appellant
MOSES MONNAKAMA
Fourteenth Appellant
RICHARD PHUDUHUDU
Fifteenth Appellant
JOSEPH MPHAMO
Sixteenth Appellant
SIMON NENZANI
Seventeenth Appellant
and
THE STATE
Respondent
CORAM :
Olivier,  Zulman  JJA; Farlam  AJA
DATE OF HEARING :
1 November 1999
DATE OF JUDGMENT :
19 November 1999
Criminal law - accessory after the fact - proof of liability as - application of rule in R v Gani
and Others 1957 (2) SA 212 (A) - sentence - attitude of court where crime committed by
members of police force.
JUDGMENT
OLIVIER  JA

OLIVIER  JA
[1] On 3 July 1995, the seventeen accused were members of the police force of the
North West Province at Mmbatho.   Some were attached to the murder and robbery
squad, others to the so-called tracing unit.   Some had achieved the rank of sergeant,
some were constables.   At the time Samuel Magano was employed at the Molopo Sun
Hotel in the slot-machine section.   At about 07:30 of that morning, he was detained by
the police on suspicion of having participated in a robbery during the night at the Molopo
Sun.   From the moment of his detention he was in the company of all of the accused for
purposes of interrogation and the pointing out of, inter alia, the place in the veld where
he had allegedly hidden some of the stolen money.   At approximately 16:00 that
afternoon Magano was dead.
[2] The accused were arraigned on a charge of having murdered Magano.    They
denied guilt.   The trial was heard by Friedman JP and assessors.   The court found that
the deceased met an unnatural death by anoxia, probably as a result of suffocation, at
the hands of one or more of the accused, while in their custody.   Because it could not
be established who actually committed the murder, and in the absence of a request by
the State for a conviction on the basis of common purpose to murder the deceased, the

accused were convicted of being accessories after the fact to the murder.   Reliance was
placed for this legal conclusion on R v Gani and Others 1957 (2) SA 212 (A) and S v
Jonathan en Andere 1987 (1) SA 633 (A).   Ten years imprisonment was imposed on
each of those accused who were sergeants at the time;  each of the constables was
given eight years.
[3] The accused appealed against their convictions and sentences to the Full Bench
of the High Court, with leave of this Court.   The Full Bench dismissed the appeal against
the convictions, reduced the sentences of the sergeants to eight years, and dismissed
the appeals by the constables against their sentences of eight years.
Leave was granted by this Court to the Appellants to prosecute a further appeal
against their convictions and sentences.
[4] It was common cause that on the morning of his arrest the deceased was hale
and hearty and that from that moment up to the time of his death he was never in
contact with any one  other than the Appellants.
[5] The main factual dispute at the trial related to the cause of the deceased’s death.

Against the State’s version that the deceased met his death at the hands of one or more
of the accused, he being forcefully suffocated by them, the Appellants’ version was that
he died of natural causes.   In a nutshell, their version is that the deceased was taken by
them in a police kombi to a place in the veld where, so he said, he had buried his share
of the stolen cash.   The kombi stopped at the place indicated by him; he stepped out of
the kombi, walked a few paces, collapsed, and rolled over.   Despite the application of
first aid procedures by Appellants 1 and 3, he died on the spot.   The State, on the basis
of expert medical evidence emerging from a post mortem examination by two experts,
set out to refute the Appellants’ version.   What is more, the State strongly disputed that
the deceased had died at the place pointed out by the Appellants.   He was killed, so it
was alleged, at some other place while in the custody of the Appellants and conveyed
by them to the scene where his body was later shown to a senior police officer, Colonel
Segone.
[6] The post mortem was conducted by Professor Fosseus and Dr Saayman.   They
are both expert forensic pathologists.   They were aware of the importance of the  post
mortem and were looking for any natural cause of death, including asthma, epilepsy and
cardiac arrest.  They found no evidence of any .   Dr Saayman summarised their findings
as follows :

... the post mortem findings are indicative of probable
terminal acute anoxia, the precise cause of which was not
ascertained at the autopsy.   However signs of blunt force
application to the neck were identified.   Strangulation can
however not be definitely diagnosed and other causes of
acute anoxia, including suffocation, should be considered.
No evidence of underlying or existing natural disease was
identified at post mortem examination to which sudden death
may be ascribed.
Professor Fosseus agreed, testifying that the deceased’s death was due
... definitely [to] unnatural causes.
[7] Supporting the evidence of Professor Fosseus and Dr Saayman, is that of Dr
Manyaapelo, the deceased’s doctor.   The deceased had been his patient between June
1994 and June 1995.   During that period the deceased had not displayed any symptoms
of cardiovascular disease, asthma or epilepsy, all of which Professor Isaacson, the
medical expert called by the Appellants, had suggested could have caused the death
of the deceased.   Dr Manyaapelo’s view was that the deceased had not suffered from
any illness which might have constituted the possible alternative causes of death
suggested by Professor Isaacson, or that could have accounted for the death as
described by the Appellants.

[8] Professor Isaacson is a specialist anatomical pathologist and not a forensic
pathologist as are Professor Fosseus and Dr Saayman.   He conceded that Fosseus is
more expert than he is in forensic pathology, having performed some 12 to 13 thousand
post mortems in the period of two and a half years when he had performed 20 t0 30.
Neither, he conceded, did he perform a post mortem on the deceased, nor was he
present at the post mortem by Fosseus and Saayman.   Isaacson, in fact, simply
accepted the Appellants’ version of the deceased’s death, and then tried to establish that
the death might have been due to a natural cause.   He suggested alternative causes of
death, and criticised Fosseus and Saayman for failing to do a complete autopsy of the
heart and lungs.
The alternative causes of death that Isaacson suggested were countered one by
one by Fosseus and Saayman.   His final suggestion, which included his criticism that a
thorough autopsy had not been carried out, was that death could have been caused by
acute myocarditis, and that this condition would have been revealed only by a
microscopic examination.   Because Fosseus and Saayman had failed to perform this
examination, Counsel for the Appellants contended, it had not been established beyond
reasonable doubt that the death was unnatural and not due to acute myocarditis.

[9] The testimony relied on by Counsel for the Appellants reads as follows :
COURT : Would a histological examination have made any
difference there? — Certainly in my experience, if you do not
see something with a naked eye, then it is unlikely, in terms
of the vessel walls, it is unlikely that you are going to pick up,
of course the microscope shows you more detail but the
common disease that we are talking about here, the
important one, is so-called arthro sclerosis.   That is a
hardening and a thickening of the walls of the vessel.   If you
do not see any signs of that macroscopically, it is most
unlikely that you are going to find any evidence of it unless it
is of microscopic nature only, on histological examination.
There are other conditions in the vessels of the heart,
elsewhere in the body as well such as inflammatory
conditions which maybe on a microscopic level, maybe
visible on a microscopic level which are not macroscopically
visible.   We speak of rare conditions here and in most
instances, they would also leave some form of macroscopic
defect or abnormality.   But I cannot exclude categorically
that such changes could have been present.
MR SMITH [Counsel for the State] : But most probably if
that had been the case, you would found macroscopic
evidence of that, — You would probably have found
macroscopic evidence of it and I would be inclined to say
that there would be aforegoing clinical manifestations of such
diseases, well it would be unusual for this to result in a
sudden, unexpected death.

[10] On the basis of this evidence it was argued that the State had at best, proved its
case on a balance of probabilities but not beyond reasonable doubt.   Where does one
draw a line between proof beyond reasonable doubt and proof on a balance of
probabilities?   In our law, the classic decision is that of Malan JA in R v Mlambo 1957
(4) SA 727 (A).   The learned judge deals, at 737 F - H, with an argument (popular at the
Bar then) that proof beyond reasonable doubt requires the prosecution to eliminate every
hypothesis which is inconsistent with the accused’s guilt or which, as it is also expressed,
is consistent with his innocence.   Malan JA rejected this approach, preferring to adhere
to the approach which “ ... at one time found almost universal favour and which has
served the purpose so successfully for generations” (at 738 A).  This approach was then
formulated by the learned judge as follows (at 738 A - B) :
In my opinion, there is no obligation upon the Crown to close
every avenue of escape which may be said to be open to an
accused.   It is sufficient for the Crown to produce evidence
by means of which such a high degree of probability is raised
that
the
ordinary
reasonable
man,
after
mature
consideration, comes to the conclusion that there exists no
reasonable doubt that an accused has committed the crime
charged.   He must, in other words, be morally certain of the
guilt of the accused.
An accused’s claim to the benefit of a doubt when it may be
said to exist must not be derived from speculation but must

rest upon a reasonable and solid foundation created either
by positive evidence or gathered from reasonable inferences
which are not in conflict with, or outweighed by, the proved
facts of the case.
(see also S v Sauls and others 1981(3) SA 172 (a) at 182 G-H; S v Rama 1996(2) SA
395 (SCA) at 401; S V Ntsele 1998 (2) SACR 178 (SCA) at 182 b - h.)
[11] The approach of our law as represented by R v Mlambo, supra, corresponds
with that of the English courts.   In Miller v Minister of Pensions [1947] 2 All ER 372
(King’s Bench) it was said at 373 H by Denning J:
... the evidence must reach the same degree of cogency as
is required in a criminal case before an accused person is
found guilty.   That degree is well settled.   It need not reach
certainty, but it must carry a high degree of probability.
Proof beyond reasonable doubt does not mean proof beyond
the shadow of a doubt.   The law would fail to protect the
community if it admitted fanciful possibilities to deflect the
cause of justice.
If the evidence is so strong against a man as to leave only a
remote possibility in his favour, which can be dismissed with
the sentence ‘of course it’s possible but not in the least
probable’, the case is proved beyond reasonable doubt, but
nothing short of that will suffice.

[12] In the present case, and relying solely on the medical evidence, I am of the view
that it has been proved beyond reasonable doubt that the deceased died of acute anoxia
caused by an aggressive or unnatural act, and not by natural causes.  This has been
proved with such a high degree of probability that the ordinary reasonable man, after
mature consideration can only come to the conclusion that there exists no reasonable
doubt that the deceased died of unnatural causes.
[13] It is common cause that the deceased was throughout the day in question in the
company of only the Appellants.   It follows that his death was caused by one or more
of the Appellants.
[14] But  the Appellants face a further problem.   The trial court rejected their version
that the deceased died at the place indicated by them.   This rejection inexorably carries
with it also a rejection of their version that the deceased had succumbed to natural
causes.   If he had died of natural causes at point A, why convey his body to point B?
[15] There is cogent evidence that the deceased did not die at the place indicated by
the Appellants - and that it could not have happened in the way described by them.

It is common cause that when the deceased was detained early that morning, he
was dressed in a white shirt, a pair of light coloured slacks and a light coloured jersey.
These clothes were unsoiled.   Later in the day Colonel Segone, who was called to the
scene by the Appellants, found the body of the deceased on the floor of a police kombi.
His shirt and trousers were thoroughly stained by red, muddy soil.   The point is that the
soil where he was supposed to have collapsed and rolled over,  and where he was given
intensive artificial respiration, was a sandy, greyish, blackish soil.   No trace of this soil
was found on the clothes of the deceased.
[16] The State called Mr Dixon, a registered professional natural scientist, to testify as
regards the soil he found on the clothes of the deceased and on the soil found at the
scene where the deceased was alleged to have collapsed.  He found that :
The condition of the deceased’s clothing indicates that the
deceased repeatedly made contact with soil that consists of
a fine red sand and that some of the sand was wet enough
to adhere as mud to some parts of the clothing, especially
the jersey.   The knees were stained with red soil as if the
deceased was repeatedly in the kneeling position on the red
soil.   The shirt front of the deceased was heavily stained
with red soil and the stain marks indicate that the shirt front
was repeatedly grasp[ed] as though the deceased was
pulled about.

[17] Dixon was adamant that the soil on the clothing of the deceased could not possibly
have come from the spot where the Appellants say he had collapsed.   He was also
adamant that had the incident occurred as averred by the Appellants, traces of soil from
that scene would have been found on the deceased’s clothing.   In fact, no such traces
were found on the clothing or in the kombi - on the contrary, soil samples collected from
the floor of the kombi in which the deceased was transported by the Appellants are
similar to the red soil samples collected from the deceased’s clothing.
[18] The implication of this evidence, which was not disputed by the Appellants, is clear
: either red soil on the floor of the kombi was transferred to the clothes of the deceased
when he was placed on the floor and transported to where Colonel Segone found the
Appellants and the body, or the red soil which clung to the clothes of the deceased from
some place, was transferred to the floor of the kombi when his body was placed there
and transported.   In either event, the Appellants’ version is false.
[19] In order to escape this conclusion, the Appellants suggested that the
contamination of the clothes could have occurred in the mortuary or during the period of
a few days when the deceased’s mother had custody of it.   But these suggestions are
untenable.   When Colonel Segone saw the deceased’s body, the red stains were

already present.
[20] Taking into consideration the cogency of the scientific examination of the soil
samples by Dixon, and the improbabilities in the Appellants’ version of how the deceased
had died, it was proved in my view beyond a reasonable doubt that the deceased had
not collapsed where the Appellants said he did.   Therefore he must have died at another
place at a time earlier than that described by the Appellants.   Clearly  the trial court was
justified in rejecting the explanations of the Appellants regarding the place where the
deceased died, and the manner in which he died.
In the court a quo Waddington J summarised that court’s conclusions as to the
guilt of the Appellants as follows  :
Although no independent evidence was tendered in the trial
that the deceased was subjected to a form of suffocation by
a member or members of the appellants’ group it is my view
that the cumulative effect of all the reliable and cogent
evidence taken into account by the trial court was to
demonstrate as the only reasonable conclusion the guilt of
the appellants in respect of the offence of which they were
convicted.   Each and every fact was consistent with the
inference which was sought to be drawn, namely the guilt of
the appellants and the fact that they must have appreciated
the danger which existed in shutting off the deceased’s air

supply.   Of the recklessness in doing nothing to stop that
dangerous conduct timeously there can be no reasonable
doubt.
(My emphasis)
I cannot fault these remarks nor the approach of the trial court and the court a quo
at all.   They are consistent with hallowed legal principles   (see also S v Reddy and
Others 1996(2) SACR 1 (A) at 8 c -10 d).
[21] At the trial, only Appellants 1, 2, 3, 7 and 16 testified.   Their explanation to
Colonel Segone at the scene was that the deceased was not assaulted by any of them
but that he had collapsed and died of natural causes.   Written statements made by each
of the Appellants to the police after having been warned of the investigation against them
were also placed before the trial court.   These statements, in virtually identical terms,
wording and punctuation, were to the same effect.   This was also their evidence at the
trial.   The trial court was consequently, and quite correctly not able to identify a principal
perpetrator of the murder of the deceased, nor could it exclude anyone of the Appellants
as principal perpetrator.   A conviction of murder, based on the identification of a main
perpetrator or perpetrators and in the absence of a finding of common purpose, was not
possible and was not requested by the prosecution.

[22] The trial court found all seventeen Appellants guilty of being accessories after
the fact to the crime of murdering the deceased.   The court a quo upheld this judgment.
The correctness of this conviction has been contested on several grounds in this Court.
[23] The main argument against the convictions is one of logic.   It was argued that
an accessory, as the word implies, can be an accessory only if he aids someone who
commits the primary crime (Snyman, Strafreg, 3rd edition 296).   If no primary criminal
can be identified, there can be no accomplice.   All the Appellants, so it was argued,
should have been acquitted.
[24] The argument set out above is not a novel one in our law.   It was raised and
scrutinised in R v Gani and Others, 1957 (2) SA 212 (A).   In that case it was found by
the trial court that one or other of three of the accused had killed the deceased and later
removed and hidden the body.   The trial court could not find, however, whether the
murder had been committed by one, two or three of them, and, if by fewer than three,
by whom.   In the event none could be convicted of murder.   Neser J, in the trial court,
held that as a matter of law the Court could not convict any of the three of being an
accessory after the fact, because the Court had not found it possible to say of any

particular one that he was not a party to the murder.   Because any one of the three
could have been the murderer, none could be charged as accessory, for he could not be
an accessory to his own crime.
On appeal, dealing with a reserved question of law whether in the circumstances
set out above Neser J was correct in acquitting all three of the accused of being
accessories after the fact, Schreiner JA (with the concurrence of Fagan CJ, Beyers and
Malan JJA and van Blerk AJA) launched what was later in the legal literature called the
“Schreiner doctrine”  :  In a case where there are several accused who have tried to
cover up a crime which may have been committed by only one of them, the accused
persons other than the actual murderer commit the crime of being an accessory after the
fact to his crime when, for instance, they hide the body.   That crime of theirs is their own
distinct crime and not part of the crime committed by the murderer.   If then the actual
murderer acts in concert with them he is, it is true, taking steps in the concealment of the
murder committed by him but he is at the same time participating in their crime of being
accessories after the fact to murder as their accomplice.   All the accused can in such
a case be convicted as accessories after the fact to murder (see 221 C - E).
[25] The Gani - judgment has been criticised on the point under discussion by

academics inter alia by J C de Wet (1958 THRHR 181 - 182), A V Lansdown
(“Accessory after the fact to what?”  in 1957 SALJ 275 - 277) and M C Maré ( “Die
aksessoriese karakter van begunstiging - S v Jonathan en Andere 1987 (1) SA 633
(A)” in 1987 SA Journal of Criminal Law and Criminology, 60 - 66).
[26] But, on the very point now under discussion, the criticism against the Gani-
judgment was fully considered by this Court in S v Jonathan en Andere 1987 (1) SA
633 (A).   In the majority judgment of Jansen JA, (Joubert JA and Eloff AJA concurring)
the “Schreiner doctrine” was upheld.   At 644 B Jansen JA stated :
In die lig van die voorgaande is ek nie oortuig dat Gani
klaarblyklik verkeerd is nie.   Desnoods kan dit ook beskou
word as die daarstelling van ‘n uitsondering op die algemene
reël dat niemand homself kan begunstig nie.   Maar in ieder
geval staan dié beslissing al oor die 28 jaar en berus dit op
gesonde beleid.   Myns insiens moet aanvaar word dat in die
Gani - tipe geval skuldigbevinding aan begunstiging op
grondslag van medepligtigheid aan die begunstiging kan
geskied.
[27] What is of equal importance is that the minority judgment agreed with the majority
on this point.   Botha JA (with whom Hoexter JA concurred) stated at 652 E - F :
Wat betref gedeelte B van die uitspraak van Schreiner A R,

[i.e. that part dealing with the point now in issue - see p 651
J - 652 D of the Jonathan judgment] wys my Kollega
Jansen daarop dat dit deur akademici gekritiseer is.   Vir my
doeleindes is dit onnodig om die kritiek te ontleed.   Ek sal
volstaan met die opmerking dat die kritiek my nie beïndruk
nie.   Ek is dit volkome eens met my Kollega Jansen dat, wat
gedeelte B betref, die beslissing in die Gani - saak op
gesonde beleid berus en dat dit as geldende reg aanvaar
moet word.
[28] Where Botha JA differed from the majority judgment was whether, on the proven
facts, it was established beyond reasonable doubt that all the accused participated in
assisting the principal offender to evade justice (see 656 G- H).   For this, Botha JA
required a conspiracy (samespanning) to make false statements that were similar, or
in effect similar (see 656 I - J).   On the facts Botha JA found that the prosecution had
not proved its case beyond reasonable doubt.
[29] Returning to the “Schreiner doctrine”, the position then is that it received the
approval of all five judges in Jonathan.   It was also followed by this Court in S v
Munonjo en ‘n Ander 1990 (1) SACR 360 (A) at 364 e.   That being the position, I
intend applying the law according to the “Schreiner doctrine”.   The question remains, as
was the case in Jonathan, whether on the facts the conviction was in order.

[30] To sustain a conviction of being an accessory after the fact in the present case
the prosecution must prove that the accused performed some act or acts intended to
assist  the principal offender to escape conviction.   In this respect the prosecution relied
on the following :
(a)
The failure of the Appellants to report the true facts to a superior
officer;
(b)
The fact that the body was taken from point A to point B by all seventeen
accused;
(c)
The untrue statements made by the Appellants to Colonel Segone
when he arrived at the scene;
(d)
The seventeen identical exculpatory warning statements made by
the Appellants during the investigation of the murder charge.
[31] As to (a) and (b) :
In the ordinary course, mere failure to report a crime is not unlawful and cannot
result in a conviction of being an accessory after the fact.   But the position is different
where a police officer fails to report a crime, or fails to make an entry in the occurrence
book about it or to disclose the identity of the perpetrators.   In such a case the failure
by the police officer is unlawful.   If the failure takes place with the intention of assisting
the perpetrator of the crime to escape conviction and punishment, then (merely on the
basis of his or her omission) the police officer is guilty of being an accessory after the

fact to the principal offence.   See S v Williams and Others 1998 (2) SACR 191 (SCA)
at 194 a - 195 c).
In the present matter there can be no doubt that the failure of all the Appellants
to disclose the true facts about to the murder of the deceased (having regard to the
removal by all of them of the body of the deceased to the place where he was ultimately
found) was the result of a deliberate conspiracy to assist the principal offender or
offenders to escape justice.   (See S v Williams and Others, supra.)
It follows then on this basis alone the Appellants were correctly convicted.
[32] As to (c) and (d)
If mere intentional failure by a police officer to report a crime constitutes the
necessary act giving rise to a conviction of being an accessory after the fact to the crime,
a fortiori do the false statements made by the officer prior to being charged.   The
statements now under discussion were obviously made with the intention of misleading
any police investigation and shielding  the principal offender or offenders.
But counsel for the Appellants argued that the statements made by the Appellants

were inadmissible as evidence.   They cited S v Jonathan en Andere, supra, 657 A -
B, where the same issue was raised but left open.   Reference was also made to R v
Victor and Another 1965 (1)  SA 249 (RA) 253 B - 256 F.
[33] In that case Beadle CJ said, at 253 A - C :
Both appellants made warned-and-cautioned statements to
the police, giving detailed accounts of their movements on
the day before and on the night on which the crimes were
committed.   The statements are almost identical and false
in particulars which show conclusively that the appellants
must have conspired together to tell the same story to the
police ... I am satisfied, on comparing the appellants’
statements to the police, that these could have been made
only after they had carefully discussed the matter with each
other and had decided that they would tell the police an
almost identical, false story.   This conspiracy could have
been intended only to assist not only each appellant himself
but also his co-appellant.   The making of a false statement
to police in order to assist a guilty man to escape
punishment seems to me to be as much an act of aiding and
abetting a criminal as to help him to escape punishment by
assisting him to conceal his crime as, for example, helping a
murderer to dispose of the body of the deceased.   Both are
positive acts which are designed to assist the criminal in his
criminal conduct.
[34] But the Court had difficulty with the admissibility of the statements for the

following reason : generally, an extra-curial statement is admissible only against the
person who makes it.   In the Victor case, there was no evidence to prove either
Appellant an accessory unless the statement of each was admissible against the other.
The statement of each would, however, be admissible against the other if - but only if -
it could be proved that the Appellants had acted with a common purpose.   But the only
conclusive proof of a common purpose was the statements themselves.   The circularity
of the reasoning poses a true legal conundrum.
[35] In my view, the statements are admissible on at least two grounds.   The first is
that all the statements are exculpatory:  they do not incriminate any Appellant of either
the primary offence of murder or the ancillary offence of being an accessory.   Nor is
anything in the statements used against the other Appellants to prove that what was said
in the statements was true.   Where the statements are not rendered inadmissible on this
crucial ground, it seems implausible that they should be inadmissible simply because (a)
they are similar to the point of being identical; and (b) they contain the same proven
falsehoods.   One is not using the statements primarily as a medium to look through at
events;  one is looking at the statements as objects in themselves.   The distinction may
be fine, but it is real.   There is no logical reason why the statements, used in that way,
are not admissible.

[36] Secondly, I consider the statements to be admissible on the basis formulated in
R v Miller and Another 1939 AD 106 at 115 and R v Mayet 1957 (1) SA 492 (A) at 494
F, viz that acts and declarations of each accused are admissible in evidence against  the
rest provided that they are acts performed and declarations made in furtherance of the
common purpose.   It is immaterial which comes first, the conspiracy of the defendants
or their participation in the particular act; but for a finding of common purpose both the
elements of conspiracy and act are necessary.   In this case, the act by all the Appellants
of failing to report the true facts of the deceased’s death, and their  false statements, is
evidence that their common purpose was to assist the murderer or murderers to escape
justice.   This common purpose renders their statements admissible.
[37] It was further argued by counsel for the Appellants that a conviction based on
the mere failure to report the murder would be unconstitutional:  Appellants have a
constitutional right to silence, and, therefore, mere silence in the form of a failure to
report the murder cannot be unlawful.   The argument has no merit.   By virtue of their
position as police officers, the Appellants did not have a right not to report a crime
committed in their presence.   It is far-fetched to suggest that the Constitution has
abrogated en passant the duty of a police officer to be honest, or to perform his lawful
duties and obligations, or to report a crime committed in his or her presence.   If such

were to be the case, the administration of law and order would fall into an abyss of
dishonesty and corruption.
[38] A second point that counsel for the Appellants raised was that there was no
evidence that the Appellants had had the required intention (dolus) for the offence of
being an accessory (see S v Williams and Others supra, at 193 c - f;  S v Morgan and
Others 1993 (2) SACR 134 (A) at 174 f - g;  S v Munonjo en ‘n Ander, supra, at 364
d - e).   But there can be no reasonable doubt that the failure by the Appellants to report
the murder having removed the body to the place to which Colonel Segone was
summoned and their subsequent false statements were the result of a common and
deliberate intention to assist the murderer or murderers to escape justice.
[39] A further submission made by Counsel for the Appellants should be dealt with.
It was argued that the Appellants should have been convicted only of being accessories
after the fact, not to murder but to culpable homicide.   There is no merit in this
submission.   Having found that the deceased died at the hands of the Appellants, and
having regard to the cause of death and the false evidence of the Appellants, the only
reasonable inference was that the deceased was murdered and  not killed negligently.
It was never alleged or testified by anyone, least of all the Appellants, that the deceased

was negligently killed.   The submission is based on mere speculation and lacks any
factual foundation.
[40] In my view, therefore, the conviction was proper and should not be disturbed.
[41] Finally, it was also argued by the Appellants’ counsel that this Court should
interfere with the sentences as imposed by the trial court and altered by the court a quo.
The problem is that counsel could not illustrate any misdirection on the part of the two
said courts as far as sentencing is concerned, nor was it shown that the sentences could
not have been imposed by a reasonable court.
[42] I am of the view that a sentence of eight years’ imprisonment in the case of each
of the Appellants is reasonable and fully justified by the circumstances of the case.
In S v Van Dyk 1998 (2) SACR 363 (W) , Cameron J stated at 381 i - j :
Die regspleging in ons land is in ernstige gedrang.
Openbare vertroue in die opspoor en vervolging van
misdadigers beleef ‘n krisis, met skeptisisme wat om
verstaanbare redes hoogty vier.   Deur swaar vonnisse op te
lê moet die howe enersyds ‘n boodskap aan voornemende
misdadigers binne die regsadministrasie uitstuur dat hul

optrede nie geduld sal word nie; en andersyds aan gewone
landsburgers dat die regspleging sover doenlik beveilig word.
With these remarks I fully agree.   A police officer who places supposed loyalty
to colleagues committing crimes above his or her police duties should know that the
courts of law will take an extremely serious view of such conduct and will not hesitate to
impose a severe sentence.
[43] In the result, the appeals of each of the Appellants against the conviction and the
sentence of eight years’ imprisonment are dismissed.
P J J OLIVIER  JA
CONCURRING  :
ZULMAN   JA
FARLAM   AJA