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Naidoo 2003 (1) SA|Alan Kusevitsky|Jo-Ann Neethling
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Smith v S (A273/16) [2017] ZAWCHC 2

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Smith v S (A273/16) [2017] ZAWCHC 2

27th January 2017

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The appellant was convicted in the court a quo of conspiring with Jo-Ann Neethling to murder Alan Kusevitsky and sentenced to nine years’ imprisonment of which two years were suspended. He appeals against conviction and sentence.

It is doubtful whether conspiracy to commit murder (or other crimes) was by our common law an offence (De Wet & Swanepoel Strafreg 3rd Uitg 193; Burchell Principles of Criminal Law 4th Ed 529). If the murder was committed or sufficient acts performed to constitute attempted murder, the conspirators could be convicted of murder or attempted murder as the case might be. But conspiracy simpliciter was not, it seems, a crime. A statutory offence of conspiracy was introduced by s 15(2)(a) of Act 27 of 1914 and is now to be found in s 18(2)(a) of the Riotous Assemblies Act 17 of 1956 which provides in relevant part that any person who conspires with any other person to aid or procure the commission of or to commit any offence, whether at common law or against a statute, shall be guilty of an offence and liable on conviction to the punishment to which a person convicted of actually committing that offence would be liable. This is the statutory offence which the appellant was alleged to have committed.

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If the State proved its case, the appellant could perhaps have been charged with and convicted of attempted murder, since the alleged conspiracy had been implemented to the point of handing over cash to the two persons who were believed to be the hitmen (though they were in fact undercover policemen). See Snyman Criminal Law 6th Ed at 278 and Burchell supra 535-536; but cf R v Nlhovo 1921 AD 485. Nothing turns on this.

The alleged conspiracy was said to have come into existence in late 2008. Neethling was arrested on 4 December 2008 and the appellant on 9 December 2008. Neethling entered into a plea bargain and was the State’s main witness against the appellant. The trial only got underway in September 2011. Evidence was completed in March 2015. The magistrate’s judgment, delivered in September 2015, is somewhat disjointed, perhaps reflecting the disjointed way in which the trial was conducted. The magistrate, who had the opportunity of observing the witnesses, disbelieved the appellant’s denial of involvement and accepted the essential elements of Neethling’s evidence. The magistrate did so while recognising the considerable imperfections in her testimony and the need for caution arising from the fact that she was an accomplice and a single witness. We can only interfere with the magistrate’s factual findings if they are vitiated by material misdirection or shown by the record to be wrong (R v Dhlumayo & Another 1948 (2) SA 677 (A) at 705-706; S v Naidoo 2003 (1) SA 347 (SCA) para 26). This approach applies equally to credibility findings and the application of cautionary rules (S v Prinsloo 2016 (2) SACR 25 (SCA) para 187). Less deference is required where the question is one of drawing inferences from proved facts (Director Of Public Prosecutions, Gauteng v Pistorius 2016 (1) SACR 431 (SCA) para 46).

Pre-sentencing reports were obtained. Evidence in mitigation and aggravation was adduced. On 11 March 2016 the magistrate imposed the sentence previously mentioned. On the same day she granted the appellant leave to appeal against conviction and sentence. His bail was extended pending the outcome of the appeal.

  • Smith v S (A273/16) [2017] ZAWCHC 2
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