S v NKOSI 2016 (1) SACR 301 (SCA)

Murder — Proof of — Intention to kill — Gang of robbers, armed with firearms, foreseeing likelihood of resistance — In course of shoot-out, victim of robbery managing to shoot and kill one of robbers — Robber correctly convicted of murder of fellow robber.

The appellant was a member of a gang of five which set out to rob business premises where the owner was busy cashing up after the working day. Two of the robbers, armed with firearms, entered the office and demanded money from the owner, who suggested that they take the cash lying on the desk and placed his cellphones and wristwatch on the desk, and also suggested that they search him. The deceased (another member of the gang of robbers) then entered the office, waving his gun around, issuing threats and eventually firing a shot which hit one of the employees of the business in the elbow. The owner, who was lying down as he had been instructed to do, managed to grab the deceased’s wrist and a shot went off from the deceased’s firearm which passed the owner’s left side. The owner of the business was able to draw his firearm and then shot the deceased twice in his chest and shot back at the three robbers who were firing at him in what became a wild shoot-out. In the end, the deceased was fatally wounded, one of the robbers was shot in the pelvis and the owner suffered a gunshot wound to the leg. The appellant was convicted on one count of murder, two counts of robbery with aggravating circumstances, and one count each for the unlawful possession of a firearm and ammunition. On appeal the only issue before the court was whether the trial court had correctly convicted the appellant of the murder of his fellow robber, the contention being advanced on his behalf that the deceased had embarked on a ‘frolic of his own’ which caused his own death and that the state had failed to prove that the appellant had had the requisite intent for murder.

Held, that on the common-cause and proven facts, the appellant and his fellow robbers reasonably foresaw the likelihood of resistance and a shoot-out, hence the need to arm themselves with loaded firearms. The shoot-out between the owner and the deceased occurred in the same room where the robbery was being perpetrated and occurred in the course thereof. It did not count in the appellant’s favour that the robbers accosted the owner while under the impression that he was unarmed. They foolishly ignored, to their peril, his suggestion at the time that they search him and they foresaw the very real possibility of there being other employees and customers present at the premises, even though it was almost closing time.
Held, further, that on the facts of the case, the appellant was well aware that the fact of him and his fellow robbers being armed with loaded firearms might result in a shoot-out or that they might encounter ‘dangerous resistance’. He reasonably foresaw subjectively that, in the course of encountering such dangerous resistance, the firearms might be used with possible fatal consequences. He was thus correctly convicted of murder and the appeal had to fail.