S v WANA AND OTHERS 2015 (1) SACR 374 (ECP)

General principles of liability — Common purpose — Dissociation from common purpose — Proof of — Greater involvement and more advanced execution of criminal enterprise, more clearly accused person who relies on dissociation must establish basis for finding of dissociation — Accused must establish performance of some positive act of withdrawal or dissociation — Necessary to establish that accused had clear and unambiguous intention to withdraw from criminal enterprise.

The seven accused were charged with 17 offences, including robbery with aggravating circumstances and the unlawful possession of firearms and ammunition, as well as murder and attempted murder. The charges arose from an incident in which an armoured security vehicle carrying liquid platinum was intercepted by a group of armed men. During the incident shots were fired at the driver and passenger of the armoured vehicle, as well as at a group of policemen who had been placed on the scene in anticipation of the robbery. At the end of the exchange of gunfire, six persons were dead at the scene of the robbery. Accused 4 raised the defence that he had dissociated himself from the planned commission of the offences and had withdrawn from participation in the conspiracy. He had, however, played a significant role in devising the plan to commit robbery and functioned as the key link in securing buyers for the platinum. He contended that it was the discussion amongst the co-conspirators about the use of explosives that had sparked his decision to withdraw.

Held, that the greater the involvement and the more advanced the execution of the criminal enterprise, the more clearly an accused person who relied on dissociation had to establish a basis for a finding of dissociation. This was not to say that such an accused attracted an onus but rather suggested that the accused had to establish the performance of some positive act of withdrawal or dissociation. It was necessary to establish that the accused G had a clear and unambiguous intention to withdraw from the criminal enterprise.

Held, further, that accused 4’s explanation for what had prompted his alleged withdrawal was not supported by the facts and appeared to be a self-serving explanation seized upon by him. The accused’s conduct did not, in the circumstances of the case, establish that he manifested an unequivocal intention to dissociate himself from the commission of the offences or that his positive act was sufficient to establish dissociation from the commission of the crimes he had conspired to commit with his co-conspirators. Accordingly his liability for the commission of the offences was to be determined on the basis of the existence of a prior agreement to commit the offences and the existence of a continuing common purpose to carry into I effect the criminal enterprise which was the subject of the conspiracy.

Held, further, that the prior agreement consisted of an agreement to commit robbery. Accused 4 knew that the perpetrators would be armed. He knew that the robbery was to take place in broad daylight and in a public place and that two of the perpetrators would be armed. He knew too that the passenger in the security vehicle was not a participant in the criminal conspiracy. He must have foreseen that there was a possibility that violence might be used to overcome any resistance that might be encountered and that in the execution of the criminal enterprise persons might be injured or even killed. In the circumstances he was liable as a co-perpetrator for the commission of the offences.