Nndanduleni v The State

Two appellants were indicted in the Limpopo Local Division of the High Court on five counts: murder (count 1), two counts of attempted murder (counts 2 and 3), and two counts of robbery with aggravating circumstances (counts 4 and 5), arising from incidents on 22 and 23 February 2007. On 22 February 2007, two persons robbed Uncle Taki's Eating House at gunpoint of R1000 and a cellphone. On 23 February 2007, at Murengisa-Zwothe Eating Place, armed suspects shot at a vehicle, shot and killed Rudzani Mphephu at the veranda, shot Oscar Tshikomo, and robbed the bar lounge of cash and liquor. The first appellant was arrested on 12 March 2007 and made a confession to a magistrate on 13 March 2007, implicating the second appellant. Both appellants pleaded not guilty and raised alibi defenses. They were convicted on the basis that they acted in furtherance of a common purpose. The first appellant was sentenced to a total effective sentence of 34 years' imprisonment, and the second appellant to 54 years' imprisonment. The court a quo granted leave to appeal on some convictions but refused on others. The second appellant was irregularly convicted on count 5 despite not being charged on that count.

• Whether the first appellant's confession was admissible when he indicated he wished to consult an attorney before making a statement
• Whether the appellants were correctly convicted on the basis of common purpose
• Whether the first appellant should be held liable for the murder committed by the second appellant
• Whether the appellants were correctly convicted of attempted murder of Tshikomo (count 2)
• Whether the appellants were correctly convicted of attempted murder of Ndou (count 3)
• Whether the second appellant's conviction on count 5 was irregular when he was not charged on that count
• Whether the sentences imposed were disturbingly inappropriate

Leave to appeal granted on all convictions. First appellant: appeal against conviction on counts 1 and 3 succeeds; convictions and sentences set aside. Appeal against conviction on counts 2, 4 and 5 dismissed. Appeal against sentence on count 5 succeeds; sentence reduced from 22 to 15 years. Effective sentence: 20 years' imprisonment. Second appellant: appeal against conviction on counts 3 and 5 succeeds; convictions and sentences set aside. Appeal against conviction on counts 1, 2 and 4 dismissed. Appeal against sentences succeeds: Count 1 reduced from 37 to 20 years; count 2 from 14 to 10 years; count 4 from 20 to 15 years. Effective sentence: 25 years' imprisonment. Sentences antedated to 17 March 2009.

A co-perpetrator acting in common purpose to commit robbery is not liable for a murder committed by another perpetrator where: (a) the killing differs from what was envisaged in their common purpose; (b) there is no evidence the co-perpetrator associated himself with the murder; and (c) there is no evidence he foresaw the possibility someone might be killed and reconciled himself to that possibility. An accused cannot be convicted of a charge on which he was not asked to plead, regardless of the evidence adduced. When imposing cumulative sentences for interrelated offences, courts must consider the overall effect and ensure sentences are not disturbingly inappropriate. A confession is admissible where the accused is properly informed of the right to consult an attorney but voluntarily elects to make a statement without legal representation.

The court noted that from a practical perspective, where an appeal court has allowed appellants to apply for leave to appeal on convictions where leave was initially refused, and the matter has been fully argued on the merits, it is somewhat artificial to then refuse leave to appeal on those convictions which lack merit. It is best to grant leave to appeal in respect of those convictions. The court also observed that the essence of common purpose doctrine is that if two or more people, having a common purpose to commit a crime, act together to achieve that purpose, the conduct of each in execution of that purpose is imputed to the others.

This case clarifies important principles in South African criminal law regarding: (1) The admissibility of confessions where an accused indicates awareness of the right to consult an attorney but voluntarily chooses to proceed without one; (2) The limits of common purpose liability - specifically that co-perpetrators are not liable for acts that differ from the envisaged common purpose and where there is no evidence of foreseeability or association with such acts; (3) The requirement that an accused must be formally charged with an offence before conviction can follow; (4) The need for courts to consider the interrelatedness of offences when imposing cumulative sentences; and (5) The standard for appellate interference with sentences - whether the trial court exercised its discretion properly and judicially.