Case Note: Nkosi v The State (20727/14) [2015] ZASCA 125 (22 September 2015)

/ / 2015, Criminal Law


Death of an armed robber owing to dolus eventualis


The appellant (“the Surviving Robber”) was convicted in the North Gauteng High Court on one count of murder, two counts of robbery with aggravating circumstances, and one count each of unlawful possession of a firearm and ammunition, owing to a wild shootout which occurred in a small office during the course of a gang robbery, in which all of the robbers were armed.

In the course of the armed robbery, the robbery victim fatally wounded one of the robbers (“the Deceased Robber”) during a struggle, lawfully, in self-defence. The Supreme Court of Appeal (“SCA”) was called upon to decide whether the Surviving Robber’s conviction on a count of murder, for the death of the Deceased Robber, was competent in law.
Notwithstanding that the robbery victim described the Deceased Robber as wild and agitated, the SCA rejected the assertion that he had embarked upon a frolic of his own, which could have excluded the operation of the Doctrine of Common Purpose.

The Surviving Robber submitted that the Deceased Robber’s death was not foreseeably part of the common purpose to perpetrate the robbery, and that they had accosted the robbery victim under the impression that he was unarmed. The SCA, in rejecting these submissions, opined that the fact that all of the robbers were armed showed that they were mindful of the reasonable likelihood that they may have to use their firearms, finding that it was equally foreseeable that that one or more of the victims may be armed and that they would use those arms. The SCA held that, on the common cause and proven facts, the gang of robbers reasonably foresaw the likelihood of resistance and a shootout, which is why they were prompted to arm themselves. Distinction was drawn to cases in which the accused persons were unarmed, as this is indicative of a lack of foresight and reconciliation with a possibility of “dangerous resistance” and its attendant consequences.

The SCA cited S v Lungile and Another (493/98) [1999] ZASCA 96; 1999 (2) SACR 597 (SCA), wherein it was held, inter alia, that making common cause to commit a robbery whilst knowing that at least some of the other persons who would be involved were armed, “would set in motion a logical inferential process leading up to a finding that he did in fact foresee the possibility of a killing during the robbery and that he was reckless as regards that result.”
The Surviving Robber contended that he had not acted unlawfully, since the Deceased Robber’s death resulted from the lawful actions of the robbery victim (who had killed in self-defence). This contention was rejected as the Surviving Robber was acting unlawfully, in the execution of an armed robbery.

The SCA held that S v Mkhwanazi & Others 1988(4) SA 30 (W) was incorrectly decided. In casu, 3 (three) men, one of whom was armed, were perpetrating a robbery when a neighbouring shopkeeper shot and killed one of the robbers (who was fleeing at the time). In discharging the accused, it was (incorrectly) held that there was no evidence showing that, in pursuing their unlawful purpose, they foresaw and were indifferent to the possibility that one of the members of the armed robbery might be killed, thereby excluding the subjective element of foreseeability. It was found that actus reus was absent, as the proximate cause of the deceased’s death was not the accused’s conduct. Furthermore, Van Schalkwyk J found, the prosecutions proposition, that each of the gang members should be guilty of murder in the event of one of their member’s being killed by a third party in defence of life or property, was untenable.


The SCA cited S v Nhlapo & Another 1981 (2) SA 744 (A) with approval, wherein it was held that, “in sum, the only possible inference, in the absence of any negativing explanation … is that they planned and executed the robbery with dolus indeterminatus in the sense that they foresaw the possibility that anybody involved in the robbers’ attack, or in the immediate vicinity of the scene, could be killed by cross-fire.”


Our courts consistently hold accused persons who engage in wild shootouts, during the course of an armed robbery, criminally liable for the unexpected deaths that may result, on the basis of dolus eventualis. The identity of the deceased, even if it happens to be a fellow-robber, is irrelevant, owing to the concurrent operation of dolus indeterminatus.

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