Malele v The State

On 26 February 2013, Silvesta Jossefa Marcia was arrested near a taxi rank in Daveyton by police officers. During the arrest, handcuffs placed on him became attached to a steel bench in the back of a police vehicle. When the vehicle drove off (apparently because police felt threatened by a crowd), Mr Marcia was dragged behind the vehicle for approximately 200 metres with part of his lower body on the ground. He was then transported to Daveyton Police Station where he was placed in a holding cell and died a few hours later. The cause of death was recorded as 'extensive soft tissue injuries and hypoxia'. The four applicants, all members of the South African Police Service, together with five co-accused, were charged with murder. The State's case was that the deceased sustained injuries both from being dragged and from an assault in the holding cells. The applicants denied any wrongdoing, claiming some were unaware of the dragging, some attempted to assist the deceased, and all denied assaulting him in the cells. Bam J convicted all applicants of murder on the basis of common purpose and sentenced each to 15 years' imprisonment. Leave to appeal was refused by both the trial court and a two-judge panel of the SCA.

• Whether the trial court correctly applied the doctrine of common purpose in convicting the applicants of murder
• Whether the trial court correctly found the applicants had the requisite mens rea (dolus eventualis) for murder
• Whether the trial court properly differentiated between the roles of individual accused persons
• Whether the evidence established beyond reasonable doubt that all applicants were aware the deceased was being dragged behind the vehicle
• Whether the trial court correctly linked the dragging incident with the alleged assault in the holding cells
• Whether there was sufficient evidence to convict all applicants given the concessions about lack of identification in the cell assault
• Whether leave to appeal should be granted under s 17(2)(f) of the Superior Courts Act

The decision of the Supreme Court of Appeal dated 3 May 2016 refusing leave to appeal was set aside. All four applicants were granted leave to appeal their convictions to a full court of the Gauteng Division of the High Court, Pretoria.

For a conviction based on common purpose in the absence of a prior agreement, the following prerequisites must be proven beyond reasonable doubt: (1) the accused must have been present at the scene where the violence was committed; (2) the accused must have been aware of the assault; (3) the accused must have intended to make common cause with the actual perpetrators; (4) the accused must have manifested the sharing of common purpose by performing some act of association with the conduct of others; and (5) the accused must have had the requisite mens rea. Where evidence shows that an accused attempted to assist the victim or stop the commission of the offence, the court must carefully consider whether this negates the manifestation of common purpose rather than simply finding the accused was not 'absolved' because they did not do more. Each accused must be individually assessed rather than treated as a homogenous group. Leave to appeal should be granted where there is a reasonable prospect that another court may overturn the conviction.

The court noted that questions of sufficiency of evidence in relation to each applicant and questions of causation would form part of any determination of guilt and should be left to the court adjudicating the appeal. The court also observed that whether there were other lesser offences of which the applicants might be convicted was a matter best left to the appeal court. The court deliberately refrained from making final evaluations of specific parts of the evidence, as it was dealing only with the question of whether leave to appeal should be granted rather than the merits of the appeal itself.

This case is significant in South African criminal law for its emphasis on the proper application of the doctrine of common purpose in murder cases. It demonstrates the exceptional circumstances under which the President of the SCA may refer a refusal of leave to appeal for reconsideration under s 17(2)(f) of the Superior Courts Act. The case reinforces the importance of: (1) properly establishing all prerequisites for liability under common purpose as set out in S v Mgedezi and confirmed in S v Thebus; (2) differentiating between the roles and culpability of individual co-accused rather than applying blanket liability; (3) properly establishing mens rea, particularly dolus eventualis; and (4) carefully considering exculpatory conduct such as attempts to assist victims or stop the commission of offences. The case serves as a reminder that failure to intervene is not automatically equivalent to manifesting common purpose with perpetrators of violence.