THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 723/2016
Not Reportable
In the matter between:

MESHACK MALELE

FIRST APPLICANT
SIPHO SYDWELL NGOBENI

SECOND APPLICANT
BONGANI KOLISI

THIRD APPLICANT
LINDA SOLOLO

FOURTH APPLICANT

and

THE STATE

RESPONDENT

Neutral citation:
Malele
v
The
State
(723/2016)
[2017] ZASCA
(1 December 2017)
Coram:
Navsa ADP, Swain, Mathopo JJA and Mokgohloa and Ploos van
Amstel AJJA
Heard:
1 November 2017
Delivered:

1 December 2017
Summary:

Reconsideration in terms of s 17(2)(f) of the Superior Courts Act
10 of 2013 of a decision of two judges of the court refusing leave to appeal –
principles in relation to the application of the doctrine of common purpose to be
considered – reasonable prospect that another court may overturn the murder
convictions.

__________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: Gauteng Division of the High Court, Pretoria (Bam J sitting as
court of first instance):
The decision of this court dated 3 May 2016 is set aside and the applicants are all
granted leave to appeal their convictions to a full court of the Gauteng Division of the
High Court, Pretoria.

_________________________________________________________________
JUDGMENT
_________________________________________________________________
The Court:

[1] The present case flows from a decision of the then President of this court
(Mpati P), in terms of s 17(2)(f) of the Superior Courts Act 10 of 20131 to refer a
decision of two judges of this court, dismissing an application for leave to appeal, for
reconsideration by this court. The background is set out hereafter.

[2] The four applicants who at relevant times were all members of the South
African Police Service are linked to an event which, because of disturbing images
recorded on video, received wide public attention. It is common cause that on 26
February 2013, Mr Silvesta Jossefa Marcia was arrested near a taxi rank in
Daveyton by police stationed at the Daveyton Police Station. During his arrest,
handcuffs placed on him became attached to a steel bench in the back of a police
vehicle. The vehicle drove off after the police appeared to feel threatened by a crowd
that had gathered. It departed with Mr Marcia still attached to a bench at the back of
the police vehicle and with part of his lower body on the ground behind it. Mr Marcia
was dragged behind the vehicle for a distance of approximately 200 metres.
Subsequently, he was transported to the Daveyton Police Station, a short distance

1 That section reads as follows:
‘The decision of the majority of the judges considering an application [for leave to appeal] referred to
in paragraph (b), or the decision of the court, as the case may be, to grant or refuse the application
shall be final: Provided that the President of the Supreme Court of Appeal may in exceptional
circumstances, whether of his or her own accord or on application filed within one month of the
decision, refer the decision to the court for reconsideration and, if necessary, variation.’

away. It is common cause that, upon his arrival at the police station, the deceased
was conscious. He was placed in a holding cell and died a few hours thereafter. In a
subsequent trial the applicants who were all said to have been involved in the
deceased’s arrest, together with five other accused, faced murder charges. The
State’s case was that in addition to sustaining injuries as a result of being dragged
along the road by the police vehicle, he was also assaulted in the holding cells and
that the combination of the two events led to his death.

[3] The version of the applicants was that some of them were unaware that the
deceased was being dragged along the road by the police vehicle and that the fourth
applicant and co-accused two, who had seen this had attempted to come to his
assistance by lifting him off the ground but shortly thereafter dropped his legs when
the vehicle increased its speed. Furthermore, so it was pointed out, one of the
applicants’ co-accused, accused four, drove behind the police vehicle in order to
gain the attention of the driver, accused six. Accused four ultimately succeeded in
gaining the driver’s attention and caused him to bring the vehicle to a halt. Each of
the applicants denied assaulting the deceased. Thus, they all denied that they had
committed any offence at all.

[4] The cause of the deceased’s death, as recorded in the post-mortem report
and testified to by the State pathologist, Dr Skosana, was said to be ‘extensive soft
tissue injuries and hypoxia’. Simply put, it appears from his evidence that a lack of
oxygen due to the extensive soft tissue injuries is what caused the deceased’s
death. Dr Skosana conceded that some of the injuries could have been sustained
during the initial scuffle with the police when the deceased resisted arrest and further
that some of the injuries could have been sustained during the time that he was
dragged behind the vehicle and that some of the blunt trauma could have been
caused by the deceased falling with his head against a hard bench in the police
cells. The direct evidence on behalf of the State, in relation to the alleged assault of
the deceased in the holding cells, was that of a fellow policeman, who, it must be
said, did not identify anybody specifically in relation to the alleged assault in the
police holding cells.

[5] The court below (Bam J) held that the State had proved beyond reasonable
doubt that the applicants and their co-accused all knew that the deceased was being
dragged behind the police vehicle. Bam J, although accepting that accused two and
the fourth applicant had attempted to assist the deceased when the police vehicle
drove off, dragging the deceased behind it, concluded that this did not remedy their
failure to do anything further. The court below accepted that accused four, as
described in the preceding paragraph, had caused the vehicle to which the deceased
was attached to come to a halt, but nevertheless held that he was indeed aware of
and associated himself with the dragging of the deceased in the manner described
above.

[6] Bam J linked the dragging of the deceased with the assault in the holding
cells and, even though accepting that the first applicant was not present in the cells
at the time of the alleged assault, nevertheless held, ostensibly on the basis of
common purpose, that the applicants and their co-accused were all guilty of murder
and convicted them accordingly. He sentenced each of the applicants to 15 years’
imprisonment.

[7] Applications by the applicants for leave to appeal their convictions were
refused by the court below. An application for leave to appeal to this court was
dismissed by two of our colleagues. The applicants then applied to the then
President of our court, Mpati P, in terms of s 17(2)(f) of the Superior Courts Act 10 of
2013 to refer the matter to the court for reconsideration, and if necessary, variation.
Mpati P decided in their favour. As stated at the commencement of this judgment, it
is that decision that led to the matter being before us.

[8] Mpati P provided a judgment setting out his reasons for referring the
decision by our colleagues refusing leave to appeal for reconsideration. He
considered it material that the single witness to the alleged assault in the holding
cells, warrant officer Ngamlana, stated that the deceased was surrounded by
accused two to eight (which included applicants two, three and four), but that he
could not see what was happening and that it was not clear whether only one or
more of the policeman within the cells assaulted the deceased. Furthermore, Mpati P
had regard to the court below’s reasoning, that the applicants’ failure to intervene

when the deceased was being dragged behind the police vehicle was an act of
association, manifesting a common purpose with the driver of the vehicle. Mpati P
had ‘grave doubts’ about the court below’s application of the doctrine of common
purpose. In this regard, he noted that the court below had accepted that two of the
policeman attempted to assist the deceased when the police vehicle drove off by
lifting his legs off the ground but then let go of him when the vehicle accelerated, yet
found that because they had not done anything else to assist the deceased, they
were not ‘absolved’. At para 9 of the reasons supplied by Mpati P, he said the
following:
‘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.’

[9] In setting out his misgivings about the application by the trial court of the
doctrine of common purpose, Mpati P referred to the prerequisites for liability set out
in the judgment of this court in S v Mgedezi & others [1988] ZASCA 135; 1989 (1)
SA 687, at 705I–706C2 and confirmed by the Constitutional Court in S v Thebus &
another 2003 (2) SACR 319 (CC).

[10] In referring the matter for reconsideration, Mpati P recorded that in a
separate application for leave to appeal, accused four had been granted leave by
this court to appeal against his conviction and related sentence to the full court of the
Gauteng Division of the High Court, Pretoria. He stated that this did not mean,
without more, that the applicants should also be granted leave to appeal. He noted,
however, that accused four had succeeded in attracting the attention of the driver of

2 At 705I – 706C the following appears:
‘In the absence of proof of a prior agreement, accused No 6, who was not shown to have contributed
causally to the killing or wounding of the occupants of room 12, can be held liable for those events, on
the basis of the decision in S v Safatsa & others 1988 (1) SA 868 (A) , only if certain prerequisites are
satisfied. In the first place, he must have been present at the scene where the violence was being
committed. Secondly, he must have been aware of the assault on the inmates of room 12. Thirdly, he
must have intended to make common cause with those who were actually perpetrating the assault.
Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the
assault by himself performing some act of association with the conduct of the others. Fifthly, he must
have had the requisite mens rea; so, in respect of the killing of the deceased, he must have intended
them to be killed, or he must have foreseen the possibility of their being killed and performed his own
act of association with recklessness as to whether or not death was to ensue. (As to the first four
requirements, see Whiting, 1986 SALJ 38 at 39.) In order to secure a conviction against accused No
6, in respect of the counts on which he was charged, the State had to prove all of these prerequisites
beyond reasonable doubt. It failed so to prove a single one of them. It follows that the appeal of
accused No 6 must succeed in respect of all 5 counts.’

the vehicle behind which the deceased was dragged and caused him to bring the
vehicle to a halt. Mpati P was rightly concerned that, notwithstanding that fact, the
court below did not differentiate between accused four and his co-accused.

[11] Since we are dealing solely with the question of whether leave to appeal
should be granted we will, for obvious reasons, refrain from making final evaluations
in relation to specific parts of the evidence. We do, however, share Mpati P’s
misgivings. In our view there is a reasonable prospect that another court will hold
that the murder convictions should be overturned. Whether there are other lesser
offences of which the applicants might rightly be convicted is a matter best left to the
court adjudicating the appeal. It will no doubt have regard to questions of sufficiency
of evidence in relation to each of the applicants and questions of causation will
undoubtedly form part of a determination of the guilt of each.

[12] It is necessary to record that both in heads of argument and before us, the
State conceded that it was in the interests of justice that leave to appeal be granted.

[13] For the reasons set out above, the following order is made:
The decision of this court dated 3 May 2016 is set aside and the applicants are all
granted leave to appeal their convictions to a full court of the Gauteng Division of the
High Court, Pretoria.

___________________
M S Navsa
Acting Deputy President

__________________
K G B Swain
Judge of Appeal

_________________
R S Mathopo
Judge of Appeal

_________________
F E Mokgohloa
Acting Judge of Appeal

________________
J Ploos van Amstel
Acting Judge of Appeal

Appearances:

For the Appellant:
M van Wyngaardt

Instructed by:

Pretoria Justice Centre, Pretoria

Bloemfontein Justice Centre, Bloemfontein

For the Respondent:
C Mnisi

Instructed by:

Director of Public Prosecutions, Pretoria

Director of Public Prosecution, Bloemfontein