This week, the Supreme Court of Appeal (SCA) set aside the convictions and five-year sentences for three attempted murders for a convicted robber. 

Mbalenhle Ntuli was convicted and sentenced by the Newlands Regional Court (the trial court) for his involvement in a robbery and shooting at police officers on May 31, 2008. 

On count 1 for robbery with aggravating circumstances, he was sentenced to 15 years’ imprisonment. In respect of counts 2 to 5, which related to the possession of unlicensed firearms, he was sentenced to 5 years’ imprisonment, which was ordered to run concurrently with count 1.

Finally, in respect of counts 6 to 8, which related to attempted murder, he was sentenced to five years’ imprisonment, which was ordered to run consecutively with count 1.

He was sentenced to an effective 20 years imprisonment. 

However, the SCA found that in regard to the three counts of attempted murder, on which the state relied on the doctrine of common purpose but failed to inform that this was what they would rely on, it resulted in an infringement of Ntuli’s right to a fair trial.

In finding that Ntuli’s right to a fair trial was indeed violated, the SCA noted that the state’s evidence was plagued with contradictory witness testimony regarding his direct participation in the shooting and accordingly found that there was insufficient evidence to establish that Ntuli committed the attempted murder counts.

The SCA therefore criticised the approach taken by both the trial court in convicting Ntuli based on findings of reckless firing due to his direct participation, and the high court for upholding the conviction by applying the doctrine of common purpose, despite no reference being made to common purpose by the State.

The SCA held further that the failure by the State to plead common purpose in the charge sheet or seek to amend the charge sheet at any stage before judgment was delivered or prove common purpose deprived Ntuli of the opportunity to properly prepare and present his defence, which is central to the right to a fair trial.

The SCA set aside the convictions and sentences for counts 6 to 8 which meant that Ntuli would now serve an effective 15 years behind bars.

The court judgment detailed: “There was, in light of the contradictory evidence, insufficient evidence to establish that Ntuli actually committed the attempted murders…What is clear from the evidence led in support of the State’s case and the cross-examination of Ntuli is that the State intended to rely on Ntuli actually having committed the attempted murders, as opposed to his having formed a common purpose with his co-accused to commit the attempted murders.”

Acting judge of appeal, Fathima Dawood, said: “There was, accordingly, no forewarning to Ntuli that his conviction was sought on the basis of common purpose. A conviction based on common purpose would, in these circumstances, amount to material unfairness. He was made to believe that the convictions were sought against him based on his own direct act of shooting at the police officers.

“His belief, in this regard, was strengthened by the fact that this was put to him by the prosecutor when he was being cross-examined. The State’s failure to allege in the charge sheet or alert the defence to its reliance upon common purpose is fatal to the convictions that were sustained on this basis. Absent reliance on common purpose, the State failed to discharge its onus to prove beyond a reasonable doubt that Mr Ntuli’s actions amounted to attempted murder.”

chevon.booysen@inl.co.za

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