By Michael Miller
The recent case of S v Dlamini 2012 (2) SACR 1 (SCA) highlighted divergent views on the test for a duplication of convictions in a criminal matter.
In this case the appellant and two accomplices had robbed Ms B at her home in Pinetown in 2002. In addition, the group robbed two of Ms B’s friends, who were visiting her at the time. The three women were robbed of numerous items and the robbers made their getaway in two cars belonging to Ms B’s friends.
The appellant was charged in the regional court with three counts of robbery (one in respect of each woman). The magistrate convicted accordingly and an appeal to the High Court was dismissed.
On appeal to the Supreme Court of Appeal (SCA), it was submitted that the conviction on three counts of robbery should be substituted with one in respect of the goods stolen from all three women. Counsel for the state concurred with this submission.
The majority in the SCA (Majiedt, Van Heerden and Snyders JJA) held that the three convictions should be confirmed, while the minority (Cachalia and Farlam JJA) favoured the submission supported by counsel on both sides that the three convictions should be substituted with one.
I submit, with respect, that the minority was right and the majority was wrong.
Legal principles
Section 83 of the Criminal Procedure Act 51 of 1977 provides that where it is doubtful which of several offences is constituted by the facts of a case, an accused may be charged with ‘the commission of all or any such offences’ and such counts may be tried together. The accused may also be charged with different counts in the alternative.
In such a case, however, the accused cannot be convicted of all charges if more than one charge or conviction results from the same criminal act. An example of such a situation would be where an accused person is charged with dealing in dagga, alternatively possession of the same dagga: He cannot be convicted on both the main and alternative counts, but only the one proved by the evidence.
The reason for this is that conviction on both counts exposes an accused person to being convicted twice in the same case for the same offence and he could be sentenced more than once for the same offence.
In South Africa it was recognised as far back as 1887 that a duplication of convictions may be wrong (R v Marinus (1887) SC 349). The challenge, however, has been to formulate a rule as to what constitutes a duplication of convictions. There is no hard-and-fast rule, but in 1909 it was held by Kotzé JP in Gordon v R 1909 EDC 254 (at 268 – 269) that:
‘In our South African practice there is a tendency against what is known as the splitting up of charges, where the transaction is considered to be one and the same offence. The decisions on this point are doubtless not consistent with one another. … It is difficult, if not impossible, in view of the decided cases, to lay down a hard-and-fast rule, which will apply with justness in every instance that has already been adjudicated upon, or which may in future arise for decision.’
Later, in R v Johannes 1925 TPD 782, this was taken further by Curlewis JP, who stated (at 786):
‘[I]t seems to me that the court can safely lay down that under certain circumstances both those tests, or the one, or the other, may be applied, namely the test of whether two acts are done with a single intent and constitute one continuous criminal transaction, and the test as to whether the evidence necessary to establish one crime involves proving another crime. It depends entirely on the circumstances of each particular case.’
This test, which originated in 1925, has been followed in many cases, including R v Kuzwayo 1960 (1) SA 340 (A) at 344B; S v Grobler 1966 (1) SA 507 (A) at 522E; S v Ntswakele 1982 (1) SA 325 (T) at 330 – 331; S v Mcintyre 1997 (2) SACR 333 (T) at 336 – 337; S v Toubie 2004 (1) SACR 530 (W) at 547F – H and S v Maneli 2009 (1) SACR 509 (SCA) at para 8.
Robbery and related cases
JRL Milton defines ‘robbery’ as:
‘Robbery consists in the theft of property by intentionally using violence or threats of violence to induce submission to its taking’ (JRL Milton South African Criminal Law and Procedure 3ed (Cape Town: Juta 1996) vol II: Common-law Crimes at 642).
This definition received judicial approval in the Maneli case.
As pointed out by Cachalia JA in the Dlamini case, robbery is a crime involving two unlawful acts – taking property and performing a violent act on a person (at para 21).
Theft is closely related to robbery. In the Ntswakele case the appellant stole goods from three different people who shared a room in a hostel at a gold mine. The appellant was charged with three counts of theft and convicted. The regional magistrate sent the case on special review as he had doubts as to the correctness of the three convictions. Margo J (Le Grange and McCreath JJ concurring) set the three counts of theft aside and substituted them with one count of theft. The judge came to the following conclusion at 330H – 331F:
‘There is thus no universal test or criterion which can be applied to every case to determine whether or not the actions of the accused amount in substance to one offence. The basic approach is that of common sense and fairness prescribed in Kuzwayo’s case supra, and I would add fairness not only to the accused but also to the state. That approach is to be aided, where possible, by the application of the two practical tests referred to earlier, namely –
(1) whether the acts alleged in the charges were committed with a single intent or in the course of a single criminal transaction; and
(2) whether the evidence necessary to establish one of the acts involves proof of the other.
In those difficult theft cases which do not yield to the application of one or other of those tests, the decision must depend on a consideration of all the circumstances of the accused’s conduct, including the following –
(1) the period or periods over which the acts or transactions were carried out;
(2) the place or places where they were carried out – for example the ransacking of several rooms in a private house might amount to one theft, whereas the removal of articles from several rooms in a hotel would prima facie amount to several thefts;
(3) the nature of the accused’s actions; the inquiry being whether there was one actus reus covering the whole operation, or several acta rea;
(4) the intention of the accused in carrying out the course of conduct.
In the case before us the thefts were committed in a room in a hostel with separate beds, but there is a lack of particularity in the evidence which makes it difficult to determine whether there was only one theft in substance or three separate thefts. Nor is it clear whether the thefts were carried out separately or were part of one operation carried out at the same time. This uncertainty must operate in favour of the accused.
The three convictions must accordingly be set aside and must be substituted by one conviction for theft covering all the articles referred to in the first three counts. The case is remitted to the regional magistrate for sentence on the basis of the one conviction.’
In the Toubie case the appellant and others held up three people in a small shop in Johannesburg. The appellant had been convicted of three counts of robbery. The appellant appeared before Mophosho AJ and two assessors in the then Witwatersrand Local Division on inter alia three counts of robbery. With leave of the trial court, the appellant appealed to the full Bench. The appellant’s legal representative submitted that the conviction on the three counts of robbery involved an improper duplication of convictions.
After a careful analysis of the legal principles set out above, Farber AJ (Malan and Khampepe JJ concurring) came to the following conclusion at 547F – 548A:
‘In my judgment, the robberies which formed the subject matter of … counts 1, 2 and 3 were committed within the framework of a single intent. Moreover, the evidence necessary to sustain any one of them was indispensable for the purpose of sustaining the others. The force used to overcome Mr Van Zyl and Dumane, and in that process rob them, was the same force which enabled the appellant and his conspirators to deprive the business of its goods. There is thus merit in Mr Omar’s contention and in my judgment the conviction of the appellant on … counts 1, 2 and 3 involved an improper duplication. I am fortified in this conclusion by a line of cases which have all held that goods stolen from each of a number of occupants of a single room will only justify a conviction on a single count of theft, and no more. (See R v Pieterse 1916 CPD 262; R v Vumiso 1941 EDL 259; R v Aspling 1953 (1) PH H64 (C); R v Sakombanda 1953 (1) PH H91 (SWA); R v Koekemoer 1956 (2) SA 140 (E); S v Ndlovu 1962 (1) SA 108 (N); R v Peter 1965 (3) SA 19 (SR); S v Verwey 1968 (4) SA 682 (A) and S v Polelo 1981 (2) SA 271 (NC).)
It consequently seems to me that count 1 of the indictment must be amended so as to incorporate counts 2 and 3. (See R v Peter at 21E – F and S v Polelo at 273G – H.) … . The verdict in respect of counts 2 and 3 must be set aside, with the result that the appellant will properly stand convicted of a single count of robbery.’
In the Maneli case a farmer was held up in his office on a farm. Two gardeners were brought into the office where they were also tied up. Money was stolen from the office. At the farmer’s homestead a short distance away a visitor and two domestic servants were tied up and a video recorder, a mini hi-fi set and a camera case were stolen.
The appellant was charged in the regional court with two counts of robbery, one in respect of the office and one in respect of the homestead. He was convicted as charged and an appeal to the High Court was dismissed.
This matter is slightly different to the other cases discussed in that the two groups of people were some distance apart. Nevertheless, Streicher JA (Heher JA and Kgomo AJA concurring) held that there was only one count. The judge stated at paras 8 to 10:
‘To determine whether there has been an improper duplication of convictions the courts have formulated certain tests. However, these tests are not equally applicable in every case. One such test is to ask whether two or more acts were done with a single intent and constitute one continuous criminal transaction. Another is to ask whether the evidence necessary to establish one crime involves proving another crime. In the present case … it is probable that the theft of the money from the office and from the house by the use of violence to induce submission was done with a single intent and constituted one continuous criminal transaction.
The other test is not applicable, at least not if literally applied, in the case of the theft of various articles at the same time and place. If a person were in these circumstances charged with a separate offence in respect of each item stolen, evidence necessary to prove the one charge would not prove the theft of the other item. Yet, in such a case a conviction of an offence in respect of each item stolen will constitute an improper duplication of convictions (see S v Verwey 1968 (4) SA 682 (A) at 687F – 688B and 689D – F).
For these reasons I am satisfied that the theft of the money from the office and the theft of goods from the house by the use of violence to induce submission constituted one offence and that the appellant’s conviction on counts 1 and 2 constituted an improper duplication of convictions. It follows that the conviction in respect of count 2 should be set aside.’
Conclusion
Both the majority and minority judgments in the Dlamini case address the two elements of a single intent and one continuous criminal transaction (meaning that the evidence on any of the counts of robbery would also prove the other two). However, totally different conclusions were reached.
As indicated earlier, I submit that the majority was wrong and the minority was right. The appellant and his accomplices had a single intent in that they intended to rob anybody they found at the home of Ms B of whatever they had in their possession. It is also clear that the robberies in respect of the three women were a continuous transaction and the evidence on any of the counts of robbery would also prove the other two.
I submit that the judgment of the majority is inconsistent with the judgments in the cases of Ntswakele, Toubie and Maneli. In fact, the Maneli case might have been the exception to the rule because the two robberies occurred at different locations a short distance apart. Despite this, the court in this matter found that only one count of robbery had been proved.
While it is true that there is, in the words of Margo J in the Ntswakele case, ‘no universal test or criterion which can be applied to every case to determine whether or not the actions of the accused amount in substance to one offence’ and that ‘[t]he basic approach is that of common sense and fairness’, the two guidelines referred to by Curlewis JP in the Johannes case, being ‘the test of whether two acts are done with a single intent and constitute one continuous criminal transaction, and the test as to whether the evidence necessary to establish one crime involves proving another crime’, I submit, dictate that there was only one offence in this case.
If the majority was of the view that the two tests yielded no clear result, they should have also considered the factors referred to by Margo J in the Ntswakele case, namely the –
In this regard, the period over which the acts or transactions were carried out lasted only a few minutes. They all occurred in one place. There was one actus reus covering the whole operation as it was one continuous transaction. The intention of the appellant and his accomplices was to rob anybody they could find at the home of Ms B of whatever valuables they had in their possession.*
Consideration of the above factors should have led the majority to decide that only one robbery was committed.
This decision creates a precedent that will be unfair to accused persons who are charged with more than one count of robbery in similar circumstances. As stated, it is against precedent in similar cases.
*(This would be different in the instance of multiple shootings at the same place at the same time where several people are murdered. The reason for this is that a murder would be complete. ‘Murder’ is defined by CR Snyman as ‘the unlawful and intentional causing of the death of another human being’ (CR Snyman Criminal Law 5ed (Durban: LexisNexis 2007) at 447). It is clear that if several people die, the requirements for several counts of murder will be met. CR Snyman ((op cit) at 517) further states that it is customary to describe ‘robbery’ as ‘theft by violence’. The difference here is that the theft is not completed until the stolen property is appropriated after it is removed from the lawful owner/possessor. In the present matter the removal of the property of the three persons occurred at once and not separately. This is different from the murder example because each person dies separately of his own wounds.)
Michael Miller BA (NMMU) LLB (Wits) LLM (UJ) is an advocate and senior legal researcher at Legal Aid South Africa in Johannesburg.
This article was first published in De Rebus in 2013 (Jan/Feb) DR 42.
