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[2015] ZAWCHC 186
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Manukula and Others v S (A213/12, WRC114/08, 9/2/1-200/11) [2015] ZAWCHC 186 (10 December 2015)
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
High Court Case No: A213/12
Lower Court Case No:
WRC114/08
DPP Ref No: 9/2/5/1 –
300/11
ASHLEY MANUKULA
FIRST
APPELLANT
SAMORA
MANISI
SECOND
APPELLANT
ALLIE
MPUMLO
THIRD
APPELLANT
And
THE
STATE
RESPONDENT
Coram
:
STEYN & ROGERS JJ
Heard:
30 OCTOBER 2015
Delivered:
10 DECEMBER 2015
JUDGMENT
ROGERS
J (STEYN J concurring):
Introduction
[1]
The appellants and one
other stood trial in the court a quo on a number of charges in
respect of crimes allegedly perpetrated during
December 2007. For
convenience I refer to them as they were in the court a quo, namely
No 1 (first appellant), No 2 (second appellant),
No 3 (no longer
before the court) and No 4 (third appellant). I shall, after the
first mention of the persons who feature in this
judgment, refer to
them by their surnames.
[2]
The charges fell into
three groups: (i) an alleged armed robbery perpetrated on 16 December
2007 against Mr and Mrs Shweni in Khayelitsha
during which a licensed
firearm and two cellphones were stolen (counts 1-4); (ii) an
alleged armed robbery perpetrated on
28 December 2007 against Mr
Mshudulu in Khayelitsha during which the latter’s maroon Opel
Astra CA 801 947 was
stolen (counts 5-6); and (iii) an
alleged armed robbery perpetrated on the night of 29 December 2007 at
a pub in Rawsonville
belonging to Mr Abel Camara during which Camara
was shot dead (counts 7-18).
[3]
At the end of the
State’s case the appellants were discharged on counts 5-6 and
No 3 was discharged on counts 1-6. At the
end of the trial No 3 was
acquitted on the remaining counts. The appellants were convicted on
counts 7 and 8 (the two main charges
in respect of the Rawsonville
incident, namely robbery with aggravating circumstances and murder)
but acquitted on the ancillary
counts relating to that incident. No
1, who was 17 years old in December 2007, was sentenced to 10 years’
imprisonment on
count 7 and 15 years’ imprisonment on count 8,
the first sentence to run concurrently with the second. No 2 and No 4
were
sentenced to 15 years’ imprisonment on count 7 and life
imprisonment on count 8.
[4]
No 1 sought and
obtained leave to appeal against conviction only. No 2 applied for
leave to appeal against conviction and sentence.
Leave was granted in
respect of sentence only but in terms of s 309(1)(a) of the
Criminal Procedure Act he has a right to
appeal against the
conviction which he pursues. No 4 sought and obtained leave to appeal
in respect of conviction only.
[5]
The trial in the court
a quo was lengthy (the record runs to 4485 pages). The trial got
under way on 13 October 2009. Judgment was
delivered in mid-July 2012
and sentencing took place on 30 August 2012. No 1 and No 2 had
separate legal representation. No 3 and
No 4 were represented by the
same attorney. On appeal Mr Klopper (who did not appear in the court
a quo) represented the appellants
and Ms Blows appeared for the
State. We are grateful to both for the considerable assistance they
provided to us in written and
oral argument.
[6]
The State adduced
evidence of confessions allegedly made by all four accused and of an
alleged pointing-out of a firearm by No 1.
Following lengthy
trial-within-a-trial proceedings the magistrate ruled the alleged
confessions by No 1 and No 3 inadmissible.
He held that the
confessions by No 2 and No 4 were admissible. He deferred until the
end of the trial a decision on the admissibility
of the pointing-out.
At the end of the trial he ruled the pointing-out inadmissible.
[7]
It is not in dispute
that on the night of 29 December 2007 four or five men robbed
Camara’s pub, that one or more firearms
were involved, and that
Camara was shot dead by one or more of the robbers. The issue on the
merits is whether the appellants were
among the perpetrators. On
appeal Mr Klopper submitted (i) that there was insufficient
evidence to find that No 1 was among
the perpetrators; (ii) that the
magistrate erred in finding the confessions of No 2 and No 4
admissible; (iii) and that without
the confessions there was
insufficient evidence to find that No 2 and No 4 were among the
perpetrators.
Brief
account of the incident
[8]
As one entered the pub
from the street there was a seating area referred to in the evidence
as the alley
(‘
stegie’
in Afrikaans). At the end of the
alley and to the left was the bar area. The robbery occurred shortly
before midnight on 29 December
2007 as the bar was closing. Amelia
Rosenkrantz, the bar lady, was behind the counter in the bar area.
Camara had also arrived
at the bar shortly before closing time. The
bar area and alley had been quite crowded but most of the patrons had
left because
the bar was closing. Some people were still milling
around in the street.
[9]
Two armed robbers
entered the bar area. One or two other accomplices were guarding the
alley. Camara, tragically in the event, was
not compliant. He used a
taser gun in an attempt to deter the robbers. Several shots were
fired inside the bar. As he staggered
out onto the street, several
further shots were fired at him. The post-mortem report revealed five
gunshot wounds: one to the left
chest, two to the abdomen, one to the
back (identified as the fatal wound) and one linear graze wound.
[10]
The robbers, one of
whom was seen exiting the pub with the till drawer, drove away at
high speed in a maroon Opel Astra. Two quick-thinking
witnesses
memorised the first and second halves of the registration number
respectively, namely CA 801 947, being the
car stolen from
Mshudulu the previous day. W/O Carstens of Rawsonville SAPS (who
became the investigating officer) heard the gunshots
while patrolling
and hastened to the scene. He was pointed in the direction of the
Opel and gave chase. The Opel was heading for
Worcester via a back
road. Carstens radioed Worcester SAPS for assistance. Not long
afterwards he saw several SAPS vehicles trying
to head off the Opel.
The Opel managed to evade the police who followed the car into an
informal settlement in Avian Park outside
Worcester. Const Erasmus
was at the front of the chase. The occupants of the Opel abandoned
the car at a dead-end and fled in among
the shacks. As he tumbled out
of the car the Opel’s driver fired two shots in Erasmus’
general direction.
[11]
Erasmus and his
colleagues began searching the area. No 1 was found hiding under a
mattress in an outside room of the home of a
Ms Fransiya Dick. He was
arrested. Three other men in the area, who struck the police as
suspicious, were also arrested but subsequently
released. No 2, No 3
and No 4 were arrested in Khayelitsha during the course of 30
December 2007.
[12]
An empty till drawer, a
Norinco pistol (being the licensed firearm stolen from Mr Shweni on
16 December 2007) and a Rossi revolver
were found in the Opel.
The
confessions
[13]
As will appear
hereunder, it is not strictly necessary to decide whether the
confessions of No 2 and No 4 were correctly ruled admissible
since
the other evidence is sufficient to sustain the convictions.
Nevertheless, and in case the matter should go further, I should
explain why in my view the confessions should have been excluded.
[14]
The onus rested on the
State to prove beyond reasonable doubt that the confessions complied
with s 217(1) of the Criminal Procedure
Act, ie were made freely
and voluntarily by the respective appellants in their sound and sober
senses and without undue influence
(
S
v Zuma & Others
[1995] ZACC 1
;
1995
(2) SA 642
(CC) paras 29-33;
S
v Kotze
2010 (1)
SACR 100
(SCA) para 20). If this was not proved,
cadit
quaestio
; the
confessions were inadmissible. A second question arises if the first
is answered in favour of the State, namely whether the
confessions
should nevertheless have been excluded in terms of s 35(5) of
the Constitution because to receive them would render
the appellants’
trial unfair or be detrimental to the administration of justice (see
S v Manuel &
Andere
1997 (2)
SACR 505
(C) at 515i-516c).
[15]
No 1 was arrested in
Avian Park in the early hours of the morning of 30 December 2007.
Although Carstens from Rawsonville SAPS was
the investigating
officer, officers from Organised Crime Bellville-South (‘OCBS’)
were involved in the investigation
by mid-morning. The case was
clearly receiving priority attention. This may have been because
Camara was a well-known, respected
and popular member of the
community and because his son starred in a popular television drama.
W/O Engelbrecht, a profiler and
intelligence officer with OCBS,
travelled with W/O Maclean to Worcester SAPS where No 1 was being
held. No 1 was questioned at
Worcester and at Rawsonville. He
testified that he was assaulted by black policemen at both locations.
Thereafter No 1 and a police
entourage travelled to Khayelitsha where
No 2, No 3 and No 4 were arrested in the early afternoon. All four
accused were taken
to OCBS. Each of them claimed to have been placed
in separate cells and assaulted by black policemen when they denied
knowledge
of the crime.
[16]
SAPS was soon confident
that the various accused would make confessions. At 16h30 Capt
Jam-Jam of OCBS telephoned Col Mbulawa of
Mitchells Plain SAPS to
take No 4’s confession. At 17h00 Jam-Jam phoned Sup Kwinana of
OCBS to take No 1’s confession.
At 19h36 Maclean asked Capt
Bailey of OCBS to take No 2’s confession. No 3 must have held
out the longest because it was
only at 14h30 on the following day, 31
December 2007, that Jam-Jam phoned Col Benenengu of Cape Town SAPS to
take No 3’s
confession.
[17]
On the evening of 30
December 2007 Carstens took No 1 back to Worcester SAPS and then
transferred him to Rawsonville SAPS for detention.
(The disputed
pointing-out in Avian Park seems to have occurred en route to
Worcester SAPS.) The remaining accused were detained
at Bellville
SAPS in a building adjoining the OCBS offices. At 07h00 the next
morning Carstens, so he testified, took No 1’s
warning
statement
[1]
and then transported him from Rawsonville to OCBS. Between
08h00-08h20 Carstens, again as he testified, took warning statements
at Bellville SAPS from No 2, No 3 and No 4.
[2]
The accused denied having signed warning statements on that date.
They said their warning statements were signed on 1 January 2008.
(There were separate warning statements for the three sets of
charges, the warning statements in respect of the Rawsonville charges
being dated 31 December 2007 and the warning statements in respect of
the other charges being dated 1 January 2008.) The purported
warning
statement taken by Carstens from No 3 at 08h00 on 31 December 2007
(ie in respect of the Rawsonville charges) was unsigned,
something
which Carstens could not explain.
[18]
Kwinana of OCBS started
his confession interview with No 1 at about 08h00. He suspended the
interview when it emerged that No 1
was a minor. No 1’s mother,
Cynthia, was summoned, and Kwinana resumed the confession interview
later in the day. His mother
co-signed the confession.
[19]
Shortly after 08h00
Bailey started her confession interview with No 2 (this would have
been minutes after he had supposedly signed
his warning statement).
The interview terminated at about 09h40.
[20]
Later in the morning No
4 was taken to Mitchells Plain. His confession interview with Mbulawa
took place between 12h30-14h25.
[21]
As noted, by 14h30
Jam-Jam phoned Benenengu to take No 3’s confession. Later that
evening No 3 was transported to SAPS Cape
Town. His confession
interview with Benenengu started at 21h30.
[22]
In the case of No 1,
the magistrate rejected his evidence that he had been told by the
police what to say to Kwinana. He found that
the injuries on No 1’s
face (which were visible in the photograph taken shortly after his
arrest) occurred during his arrest
and were not inflicted during
interrogation. He rejected the confession because he was not
satisfied that No 1’s rights as
a minor had been sufficiently
protected. His mother, Cynthia, who was called as a State witness,
testified that she had fallen
asleep during the confession interview
and had, upon waking up, co-signed without reading it. Cynthia also
testified that her son
told her that he did not want to make a
confession. Carstens asked her to persuade him to make a confession
and said he would be
released as there was nothing against him.
Cynthia did so. The magistrate thought that this version could
reasonably possibly be
true and might amount to undue influence. I
should add that Cynthia testified that when she saw her son, and
before he made the
confession, he told her that he had been assaulted
by the police at Worcester, Rawsonville and Bellville-South.
[23]
No 3, who was the last
to make a confession, told Benenengu that he had been assaulted and
that he had pain in his eyes and body.
Benenengu wanted to terminate
the confession interview but No 3 insisted on pressing ahead.
Benenengu conceded in his evidence
that this might have been because
No 3 was scared. He formed the view that No 3 was apprehensive of
being returned to custody.
The magistrate considered it most unlikely
that SAPS had fed No 3 the information he had to convey to Benenengu
but was not satisfied
that the confession had been freely and
voluntarily made.
[24]
In assessing the
admissibility of the confessions made by No 2 and No 4 one cannot
disregard the trajectory of the investigation
as a whole. The police
were clearly set on closing the case quickly. Within hours of their
arrest, No 1, No 2 and No 4 had said
enough to cause the police to
arrange confessions and No 3 followed suit the next day. Little time
was lost in bringing the accused
before justices of the peace. All of
the accused claimed to have been coerced by assaults and threats. No
1’s mother testified
that he told her this when she first saw
him. No 3 told this to Benenengu. Kwinana noted certain wounds on No
1’s head. The
police photograph shows that his T-shirt was torn
and had blood stains. Bailey noted an abrasion on No 2’s left
shoulder
and a swollen right eye. Whatever the source of these
injuries, they were not recorded in the SAPS10 incident books on the
various
occasions when the accused were booked in and out of
detention, calling the integrity of these records into question. I
should
add that the evidence of Louw and Engelbrecht regarding the
arrests of No 1 and No 2 respectively did not suggest that those
accused
would have sustained injuries during their arrest.
[25]
If No 2 and No 4 were
not coerced into making confessions, why did they do so? Of course it
is not essential for the police to explain
why a suspect made a
confession. Nevertheless, if an accused testifies that he was coerced
into making a confession, a court is
entitled, in assessing whether
such evidence could reasonably possibly be true, to consider the
alternatives. A person may make
a confession because he is plagued
with guilt but on the State’s case the accused were not men of
refined conscience. And
one is not talking about only one person who
decided to ‘come clean’. All four suspects did so, and
fairly shortly
after their arrest. On the State’s case, they
did so despite having been properly warned that they were entitled to
remain
silent and were entitled to legal representation at the
State’s expense. If these right were explained to them in a way
they
could understand and in a way which conveyed that the police
respected their right to exercise them, what advantage was there to
them in making confessions, at least without first talking to
lawyers?
[26]
It is here that the
State’s case runs into trouble. There was no evidence from any
officer whose interviews with the accused
led to their deciding to
make confessions. Carstens, though he was the investigating officer,
testified that he was not involved
in the interrogations. Indeed, he
said that he had felt sidelined by the OCBS team. All he could say
was that by the time he allegedly
took the warning statements on the
morning of 31 December 2007 he understood that the accused wished to
make confessions. One knows
that, in the case of No 1, No 2 and No 4,
the arrangements for the taking of confessions were already underway
the previous day.
[27]
The warning statements,
if they were indeed taken at Bellville-South on 31 December 2007,
were clearly rushed jobs: certain selections
which were meant to be
marked on the forms were not made;
[3]
other selections, which should have been made during the warning
interview, were pre-printed on the form by way of strike-out text;
[4]
No 2’s interview for the warning statement was said to have
both started and ended at 08h00; the place of No 2’s interview
was initially written as Rawsonville which was then scratched out and
replaced with Bellville-South; No 3’s warning statement
was not
signed by him but was signed by Carstens who by his signature
purported to confirm that the statements and answers had
been taken
down by him; No 3’s interview with Carstens was said to have
started at 08h00 (the same time that No 2’s
interview
supposedly started) and ended at 08h20; No 4’s interview was
recorded as having started at 08h20 and ended at 08h25.
If No 2 in
fact signed a warning statement at 08h00, it must have been just
before his confession was taken, since Bailey said
that her
confession interview started shortly after 08h00.
[28]
Engelbrecht testified
that he was only involved in the initial profiling and intelligence
work and played no role after the accused
were brought to OCBS
following their arrests. Jam-Jam and Maclean claimed no involvement
in the questioning of the accused. Certain
other officers who
testified in the trial-within-a-trial said that their only role was
to convey one or other of the accused to
the senior officer who took
their confessions.
[29]
In the light of this
gap in the State’s evidence and the indications of
improprieties concerning the confessions of No 1 and
No 3, I do not
think one can exclude as a reasonable possibility that No 2 and No 4
were coerced, as they claimed, by violence
and threats into making
confessions. The fact that they did not disclose the assaults and
threats to Bailey and Mbulawa is not
inconsistent with this
possibility. On their version they feared further mistreatment by
OCBS if they returned without having made
confessions. They may not
have trusted Bailey and Mbulawa to afford them adequate protection.
No 2 and No 4 were taken to Bailey
and Mbulawa by OCBS officers
(Kotze and Ross respectively). While I do not find No 4’s
evidence plausible that Ross assaulted
him at Mitchells Plain after
he supposedly told Mbulawa that he did not wish to make a confession,
each of the accused would have
understood that an OCBS officer was
waiting outside to take him back to OCBS as soon as the interview
ended. In the case of No
2, his lack of confidence in the protection
he would receive from Bailey may have been further eroded by the fact
that she was
attached to OCBS (though she was not part of the
investigation). It has long been recognised as undesirable, even if
not positively
unlawful (cf
S
v
Mavela
1990
(1) SACR 582
(A) at 589F), for a confession to be taken by a peace
officer belonging to the police unit investigating the crime, even
though
such officer is not himself or herself part of the
investigation (
S v
Mdluli &
Others
1972 (2) SA
839
(A) at 841A-D;
S
v Mbele
1981
(2) SA 738
(A) at 743E).
[30]
This is not to say that
everything No 2 and No 4 alleged regarding their confessions was
plausible, any more than that everything
said by No 1 and No 3
regarding their confessions was true. In particular, I do not regard
as plausible their claims that they
were not the sources of the
information recorded by Bailey and Mbulawa in their respective
confessions or their allegations of
impropriety directed at these two
senior officers. However, the fact that an accused is untruthful in
certain respects does not
necessarily justify a conclusion that he
was untruthful in other respects. I think that this is particularly
so in this type of
situation. A relatively unsophisticated person may
feel that it is not enough to establish that he was coerced into
making a confession.
He may feel the need to go further and claim not
to have been the source of the incriminating information at all,
since otherwise,
whatever the coercion, he will be revealed as
guilty. Even if he understands that the law says otherwise, he may be
apprehensive
of the indirect or subconscious influence which his
failure to put distance between himself and the confession will have
on the
magistrate’s mind.
[31]
In
S
v
Gcam-Gcam
[2015] ZASCA 42
, a case in which the
court on appeal found that a confession should have been excluded,
Cachalia JA made the following observations
which resonate in the
present case:
‘
[48]
It
is not necessary to deal with the evidence of the police in any
detail. And I accept that the learned judge was correct in finding
that much of the appellant’s evidence was untrustworthy. But, I
think he too readily accepted all the evidence of the police
without
properly analysing it, and did not properly consider those aspects of
the appellant’s evidence that were reasonably
possibly true
despite his mendacity…
All
that was required of the appellant was to present a version that was
reasonably possibly true, even if it contained demonstrable
falsehoods.
[49] When confronted with
confessions made by suspects to police officers whilst in custody –
even when those officers are
said to be performing their duties
independently of the investigating team – courts must be
especially vigilant. For such
people are subject to the authority of
the police, are vulnerable to the abuse of such authority and are
often not able to exercise
their constitutional rights before
implicating themselves in crimes. Experience of courts with police
investigations of serious
crimes has shown that police officers are
sometimes known to succumb to the temptation to extract confessions
from suspects through
physical violence or threats of violence rather
than engage in the painstaking task of thoroughly investigating a
case. This is
why the law provides safeguards against compelling an
accused to make admissions and confessions that can be used against
him in
a trial.
[50]
In addition, courts must be sceptical when the State seeks to use a
confession against an accused where he repudiates it at
the first
opportunity he is given. Because ordinary human experience shows that
it is counter-intuitive for a person facing serious
charges to
voluntarily be conscripted against himself. Often it is said that the
accused confessed because he was overcome with
remorse and penitence;
‘a desire which vanishes as soon as he appears in a court of
justice’. That is sometimes true,
but is usually not.’
[5]
[32]
I am not impressed by
Mr Klopper’s submission that No 4’s confession was
rendered inadmissible by Mbulawa’s failure
to use an
interpreter. His interview with No 4 was conducted in Xhosa, their
first languages. Mbulawa, whose English was competent,
recorded the
confession in English. He testified that at the end of the interview
he read the contents back to No 4, translating
into Xhosa sentence by
sentence, whereafter No 4 signed and placed his right thumbprint on
each page. If the incriminating effect
of the confession turned on
nuance of language, the absence of an interpreter might affect its
weight. That is not, however, the
position in the case of No 4’s
confession. I do not think the State even necessarily regarded the
confessions of No 2 and
No 4 as full and candid. But the confessions
unequivocally acknowledged their presence at and complicity in the
armed robbery.
In No 4’s case, no infelicities of translation
could have affected these fundamental acknowledgements.
[33]
However, and for the
reasons I have given, I do not think the State proved beyond
reasonable doubt that the confessions were made
freely and
voluntarily. They should thus have been excluded.
The other
evidence
[34]
The accused denied all
involvement in the robbery. No 2 admitted that he was at Camara’s
pub earlier in the evening but not
at the time of the robbery. No 1,
No 3 and No 4 denied having been in Rawsonville at all on 29/30
December 2007. Each accused denied
knowing any of the others.
[35]
I summarise the State’s
contrary evidence. No 1’s girlfriend, Yona Ngayemfunda,
testified that No 1 spent the night
of 28/29 December 2007 with her.
At about 05h30 the other accused and one Magou, none of whom she had
previously met but who were
introduced to her, arrived in a maroon
car. Magou had a firearm concealed under his sweater. No 1 left with
them.
[36]
No 1’s mother,
Cynthia, testified that at about 06h00 on 29 December 2007 her son
and one Khaya knocked on her door. Khaya
wanted to borrow R100 from
her. No 1 then left with Khaya and his friends in a maroon car. These
friends included a mechanic
Tamariza
.
Although she was a State witness, she denied that the other accused
were among those present. When it was put to her under friendly
cross-examination that according to No 1 the car had been white, not
maroon, she said she may have been mistaken. When the magistrate
subsequently asked why she initially said the car was maroon, she
said that the vehicle had looked to her to be maroon.
[37]
The evidence of Agnes
Nkonki is of some importance to the State’s case. She is No 2’s
aunt. She used to spend weekends
at No 2’s grandmother’s
house in Goudini. That is where she was on 29 December 2007. No 2
came to the grandmother’s
house at about 06h30 and said that
‘they’ (presumably meaning he and friends of his) were
going to town but that he
would be back in the afternoon.
[38]
At about 13h00 No 2 and
four friends arrived back at the grandmother’s house in a
maroon car driven by No 2. Nkonki had not
previously seen No 2
driving this car. She said that the car’s colour was the same
as that shown in the photograph of the
abandoned getaway vehicle. The
four friends included No 1, No 3 and No 4. No 2 and his friends spent
the afternoon drinking and
chatting on the lawn in front of the
house.
[39]
Another important
witness for the State was Zodwa Mtindizi. She was a friend of Vanessa
Manisi, No 2’s cousin. In the late
afternoon of 29 December
2007 No 2 and Vanessa collected Mtindizi to join the social occasion.
On their way back to No 2’s
grandmother’s house they
stopped at Camara’s pub and at another shebeen. A photograph
taken at 18h57 at the Goudini
Spa security gate, through which No 2
drove after picking up Mtindizi, shows him driving a maroon car with
leopard-skin seat covers.
[6]
The same seat covers can be seen in the photograph of the abandoned
getaway car.
[7]
Mtindizi, like Nkonki, testified that No 1, No 3 and No 4 were among
No 2’s friends whom she met at the grandmother’s
house.
Later Nkonki served supper to No 2 and his friends.
[40]
It was discussed
between the men, Vanessa and Mtindizi that they would go to a club in
Zweletemba, a suburb of Worcester.
Vanessa and Mtindizi at some
stage walked to Vanessa’s house. When they returned to the
grandmother’s house at about
21h15 they were told that the plan
to go to Zweletemba had been abandoned because one of the men had to
go to Paarl to close a
pub belonging to his father. No 2, so it was
understood, was returning the Khayelitsha. Nkonki gave him an Edgars
shopping bag
with clothes to take back to her house in Khayelitsha.
This bag was found in the boot of the abandoned getaway car
[8]
and was subsequently collected from Worcester SAPS by Nkonki’s
brother. The men and Mtindizi left in the maroon car at about
22h00.
No 2 was driving. He dropped Mtindizi off at her mother’s place
and drove off with the other men.
[41]
At this stage the
State’s evidence shifts to the witnesses who were at Camara’s
pub. Since the incident was a dramatic
one which played itself out
over a period of time and was viewed by the witnesses from different
perspectives there were, understandably,
some differences in detail.
In very broad summary, the bar lady, Amelia Rosenkrantz, testified
that Camara had arrived at the pub
to oversee closing-up. He was
sitting with her in the bar area when two men with firearms entered
and demanded money. When Camara
said he did not have money, one of
the men shot him. She could not say whether he was hit or how badly
he was injured at that time
but he managed to get out of the bar
area. The men came behind the counter, removed the till drawer and
ran out with it. She could
not pick these men out during a photo ID
parade. However, her description of the clothing of the man who shot
at Camara accorded
with the green and white striped T-shirt which No
2 was wearing in the photograph taken at the Goudini Spa security
gate.
[42]
Sylvia April and Miena
van der Ross were among the last patrons sitting in the alley area.
April said that two men were guarding
the alley area at the time she
heard the shot from the bar area. She identified these two men as No
1 and No 3. Miena recalled
three men entering the pub. Two of them
went to the bar area while the third guarded the alley area. She
recognised one of the
two men who went to the bar area as No 2. She
had seen him at the pub on several occasions drinking with her uncle
Jan Engelbrecht
and had also seen him on the street and outside shops
in Rawsonville. Her uncle had introduced him to her on one occasion
at Camara’s
pub. She identified No 2 as the person who ran out
with the till drawer.
[43]
Among the people in the
road when the robbery occurred were
Monrico
Vermeulen and his cousin Llewelyn
Pietersen. Vermeulen heard the sound of Camara’s taser followed
by a gunshot. A few minutes
later Camara came staggering out followed
by a black man wielding a firearm. The gunman shot at Pietersen who
had been approaching
the entrance and then fired a further shot at
Camara. Vermeulen identified the gunman as No 2, being a person to
whom he had been
introduced several weeks previously at a bachelor’s
party followed by a wedding reception. Vermeulen testified that he
had
also seen No 2 at the pub at around 23h00 of the night of the
robbery and they had greeted each other.
[44]
Pietersen, though he
was found by the magistrate to be an unreliable witness, confirmed
that No 2 was the person who shot at him.
He said the bullet struck
him in the right thigh but he was able to remove it himself. He also
identified No 4 as someone who had
emerged from an adjacent shop
carrying a till drawer.
[45]
The two quick-thinking
witnesses who memorised the registration number of the getaway car
were Barend Cloete and Pieter Hermanus.
Neither of them was standing
close enough to the pub’s entrance to identify the robbers.
They did confirm, though, that a
gunman fired shots at Pietersen who
fell in the road. They testified that the shooter and three or four
other men ran to the Opel
Astra and sped away.
[46]
As previously
mentioned, the police followed the getaway car and it was eventually
abandoned in Avian Park. No 1 was found not long
afterwards hiding in
an outside room of the house of Ms Fransiya Dick. I shall refer to
her evidence presently.
[47]
Although Mr Klopper
submitted that there was no more than a ‘strong suspicion’
that the maroon car which Nkonki and
Mtindizi saw No 2 driving was
the same vehicle as the getaway car, I am satisfied that they were
one and the same. It is not merely
a matter of colour. There are the
identical leopard skin seat covers and the presence in the getaway
car of the Edgars bag which
Nkonki entrusted to No 2. Furthermore, No
2’s fingerprints were found on the getaway car.
The case
against No 2
[48]
It is convenient to
start with an assessment of the case against No 2. He did not dispute
that he was at his grandmother’s
house early on the morning of
29 December 2007 and again during the afternoon and evening. He also
did not deny that he was the
driver of the maroon Opel Astra on the
various occasions identified by the State witnesses. He did deny,
however, that the men
who were in his company were the other accused.
He also denied having been at Camara’s pub when the robbery was
perpetrated.
[49]
The evidence
identifying him as one of the robbers is strong. Van der Ross and
Vermeulen both testified that he was one of the perpetrators.
Although neither of them knew him well, they had been introduced to
him and seen him on several previous occasions. Van der Ross
quickly
pointed out his photograph when Carstens on 8 January 2008 showed her
a number of photographs. Although Pietersen was rightly
regarded by
the magistrate as a generally unreliable witness, his identification
of No 2 as the person who shot at him is consistent
with Vermeulen’s
and he too pointed out No 2’s photograph from an album
containing 42 photographs. Cloete and Hermanus
corroborated
Pietersen’s evidence that a shot was fired at him. Although
Rosenkrantz could not identify No 2 by his face,
her description of
the clothing of one of the gunmen who confronted her and Camara in
the bar area is consistent with the clothing
which No 2 is known to
have been wearing earlier in the evening.
[50]
The case against No 2
does not depend on whether the men who were with him during the
afternoon of 29 December 2007 were the other
accused. Nevertheless,
if it was satisfactorily proved that those men included No 1, No 3
and No 4, his false denial of that fact
would naturally justify the
drawing of a highly adverse inference. The State witnesses who
identified No 1, No 3 and No 4 as having
been among the men in whose
company No 2 arrived at his grandmother’s house were Nkonki and
Mtindizi. In assessing the reliability
of their identification it is
important to note that they saw No 2 and his friends in a relaxed
social setting and over a period
of some hours (cf
S
v Mthetwa
1972 (3)
SA 766
(A) at 768A-C).
[51]
Nkonki testified that
on 1 January 2008, a couple of days after the incident, a policeman
came to her house and asked if she was
No 2’s aunt. She
confirmed this. She agreed to accompany the policeman to Rawsonville
SAPS where she made a statement. After
she had given her statement
she had to wait for a policeman to take her home. The car arrived. As
she put it, No 2 and two of his
friends got out. They had hand and
feet restraints. A detective then called her inside and asked her if
she knew the two people
who were with No 2. She confirmed that these
were two of the four men who had been at her house on the afternoon
and evening of
29 December 2007. These two men were No 3 and No 4.
[52]
Mtindizi was asked to
participate in a photo ID parade on 8 October 2008, supervised by
Carstens. The album which she saw contained
42 photographs, including
those of the four accused. She pointed out the four accused and
another man.
[53]
The magistrate was
rightly critical of the investigative steps followed by the police in
regard to identification. Physical ID parades
with the usual
safeguards, including supervision by an officer not involved in the
investigation, were not held. Nkonki made her
identification after
seeing three men who were in police custody and obviously under
arrest. While this was an unsatisfactory procedure
for the police to
have followed, Nkonki’s evidence cannot simply be disregarded.
The observations made by Majiedt JA in
S
v Mohammed
[2011]
ZASCA 98
paras 6-7 in analogous circumstances strike me as
apposite.
[9]
Nkonki saw No 2 and his friends over a period of some hours under
relaxed circumstances. There could be no suggestion that she
and
Mtindizi conspired to make a false identification (they did not know
each other).
[54]
Recourse by the police
to photo ID parades should not be encouraged where the holding of a
physical ID parade is possible. Carstens’
explanation for the
absence of a physical ID parade (a supposed difficulty in arranging a
date where all the witnesses and the
accused could be present) was by
no means satisfactory. However, a court must ultimately see to it
that justice is done. Justice
is concerned with the interests of
accused persons and the community. The suggestion in
S
v Moti
1998 (2)
SACR 237
(SCA) that it is irregular to hold a photo ID parade rather
than a physical ID parade once a suspect is in custody was
obiter.
[10]
In
S v Ndika &
Others
2002 (1)
SACR 250
(SCA) Marais JA, after referring to
Moti
and the potential
dangers associated with photo ID parades, said the following (para
23):
‘
What
is clear however is that, if such a method [
ie
a photo ID parade
]
has been used, it is not axiomatic that the results are to be
ignored. All will depend upon whether there is a reasonable
possibility that improper conduct has tainted the reliability of the
identification or that, even in the absence of any improper
conduct,
the objective circumstances attending the photographic identification
were not conducive to accuracy and reliability.’
In
Ndika
the
court on appeal confirmed a photo identification selected out of a
sample of eight photographs. See also
S
v Slinger
[2014]
ZAGPPHC 581 where the court on appeal likewise accepted a photo
identification. As in the present case, defence counsel in
Slinger
complained that the
witness had not, prior to the photo ID, given a detailed description
of the suspect. Bam J was not much troubled
by this criticism,
observing that i
t is ‘a
common phenomenon that a person can be identified without reference
to any specific feature’ (paras 6-10).
[55]
In this case Mtindizi
was shown a photo album containing 42 photographs, including those of
the four accused and a fifth suspect.
In cross-examination Carstens,
who compiled the album, was criticised for having too few
photographs. This was based upon a ‘norm’,
which he
apparently accepted, that there should be eight photographs plus that
of the suspect. Because there were five suspects,
there should, so
the criticism went, have been 45 photographs. Apart from the fact
that there is no fixed rule as to the number
of photographs to be
used in a photo ID parade, the logic of the criticism entirely
escapes me (and was not, I should add, repeated
by Mr Klopper). In
respect of the ‘first’ suspect, the selection which the
witness was required to make was to select
(if able) a photograph out
of 42 possibilities. With each selection made by the witness, the
range would reduce by one (so that
if the witness selected four
suspects, the selection of the fifth would involve a range of 38
possibilities). There was thus a
generous range of possibilities in
the present case. Having examined the album, I am also satisfied that
the faces were sufficiently
similar to pose a true challenge to
accurate identification.
[56]
Furthermore, the
results of the photo ID parades in their entirety indicate a lack of
any improper influence by Carstens. In regard
to counts 1-4 Mr Shweni
was only able to point out No 2 and two other men (not the accused).
Mrs Shweni was only able to point
out No 4. In regard to counts 5-6,
Mshudulu could only pick out one photograph and this turned out to be
someone who could not
have been related to the crime. In relation to
the Rawsonville charges, Pietersen pointed out No 2 and No 3.
Rosenkrantz was not
able to make any identifications nor was Michael
Manual, the cleaner employed at the pub.
[57]
In assessing whether
Mtindizi and Nkonki might have been mistaken, it is legitimate to
examine the plausibility of No 2’s
version. He gave conflicting
versions as to where he had been on 27 and 28 December 2007. He
testified that he had been staying
at Goudini but returned to
Stellenbosch on Boxing Day for a couple of days to sort out his
child’s new year clothes. In his
amended plea explanation he
stated that he had spent the night of 28/29 December 2007 at a
nightclub in Stellenbosch with his uncle
James. His oral evidence, by
contrast, placed the visit to the nightclub on the night of 27/28
December 2007.
[58]
Be that as it may, he
claimed to have arrived back at his grandmother’s house in
Goudini on the morning of 29 December 2007
in the company of his
uncle. His uncle then dropped him off at a pub in Worcester where he
drank and bought alcohol to take back
to Goudini. He had intended to
take a taxi but by the time he wanted to leave for Goudini there were
no taxis available. He approached
a man standing next to a maroon car
and asked him for a lift to Goudini, offering him R100 petrol money.
The man agreed. No 2 loaded
his liquor purchases into the boot. They
(being the man and his four friends together with No 2) drove off. As
they neared Goudini,
No 2 suggested to the driver that he should
allow No 2 to take over the wheel because the approach to his
grandmother’s house
lay along a difficult road between
vineyards and the car might be damaged if the driver was not familiar
with the road. The driver
agreed, and thus it was that No 2 was the
driver of the maroon car when it arrived at the grandmother’s
house (as Nkonki
testified).
[59]
No 2 invited his
new-found acquaintances to enjoy a drink with him. This is how they
came to spend the afternoon and evening there.
At some stage Nkonki
suggested that the men might want female company. No 2 concurred and
asked the owner of the car whether he
could use it to fetch his
cousin Vanessa and her friend Mtindizi, to which the owner was
amenable. After fetching Mtindizi, and
on their way back to his
grandmother’s house, they called at Camara’s pub and at a
shebeen called
Mista
.
Nkonki served supper for No 2, the other men and Mtindizi.
[60]
No 2 testified that he
asked Vanessa and Mtindizi to join him at a club in Zweletemba. He
had arranged for the owner to drop them
off there. However the girls
declined, saying they were already drunk. No 2 and the men took
Mtindizi home. No 2 again took the
wheel to ensure that there were no
mishaps along the difficult road. After Mtindizi had been taken
home, the owner resumed
his position behind the wheel. No 2 fell
asleep as they drove toward Zweletemba, waking up when they arrived
there. The men dropped
him off near the police station. He walked to
his aunt’s house where he drank with his cousins and then fell
asleep. The
following morning he took the train from Worcester to his
mother’s house in Khayelitsha.
[61]
It need hardly be
observed that this is a rather unlikely tale. If the road to his
grandmother’s house was so treacherous,
how did No 2 imagine
that a taxi was going to get him there? Why would the owner of the
car allow a complete stranger to drive
it (coincidently on the three
different occasions when the State witnesses observed him behind the
wheel)? Is it likely that four
men who had never before met No 2
would not only have agreed to take him to his grandmother’s
house but then have abandoned
whatever other plans they might have
had in favour of spending a number of hours with a stranger? And why
did No 2 leave with the
men that night? It was at his grandmother’s
house that he was staying during the holidays. He had bought the
alcohol to take
back to his grandmother’s house and claims to
have intended to get there by taxi. Why then not sleep there the
night? Why
instead ask to be driven to Zweletemba and sleep at a
place he was not expected? Finally there is the Edgars bag which was
found
in the boot of the getaway car. Why did No 2 not take it when
the men dropped him off in Zweletemba? The presence of the bag in
the
boot is more consistent with No 2 and the other occupants having fled
from the car.
[62]
The magistrate
described No 2’s demeanour as self-assured but said that his
account, as summarised above, was very unconvincing.
I agree. Indeed
it is wholly implausible. As against this, the magistrate formed a
favourable opinion of Mtindizi and Nkonki. Regarding
the former, he
said that she came across as intelligent and alert. Her observations,
he said, were thoroughly tested under cross-examination.
As to
Nkonki, the magistrate said that he never gained the impression that
she wished to mislead the court or that she was uncertain
of herself.
My own reading of their evidence has not created a different
impression in my mind.
[63]
As I have said, No 2
was identified as one of the robbers by Van der Ross and by
Vermeulen. Although the magistrate did not comment
specifically on
their demeanour, he recorded, specifically with regard to
identification evidence, that all the State witnesses
apart from
Pietersen made a favourable impression on him. Vermeulen’s
evidence reads well. Van der Ross also comes across
from the
transcript as a sincere and honest witness. She was subjected to a
very lengthy and at times unfair cross-examination,
exacerbated by
the fact that she was recalled after No 2 decided to change his
lawyer. Her exasperation and exhaustion is apparent
on several
occasions towards the end of the cross-examination.
[64]
In my view, and leaving
out of account the confession, the other evidence which the
magistrate accepted was sufficient, particularly
in the light of No
2’s implausible testimony, to establish his guilt beyond
reasonable doubt.
The
case against No 1
[65]
Ngayemfunda, who was No
1’s girlfriend at the time, testified that the other accused
arrived at her house early that morning
in a maroon car and went off
with No 1. No 1’s mother likewise stated that No 1 was in the
company of other men that morning
and drove off from her place in a
maroon car. Although under cross-examination from her son’s
attorney she conceded that
the car might have been white, it does not
seem very plausible that one could mistake the two colours. She
testified that the men
in the car were not the accused. The fact that
she was a State witness does not mean that her evidence to this
effect must be believed.
The prosecutor was not in a position to
cross-examine her.
[66]
I have already referred
to the evidence of Nkonki and Mtindizi and the favourable impression
they made on the magistrate. Mtindizi
made a confident photo ID of No
1 on 8 October 2008. Nkonki made a dock identification. (No 1 was not
one of the persons she saw
and identified at the Rawsonville police
station on 1 January 2008.) When it was put to Nkonki by No 1’s
attorney that he
had never been at her house, she replied that he
knew very well he had been there. Given the favourable circumstances
under which
Nkonki observed the people who were with No 2 and the
good impression she made on the magistrate, her dock identification
is not
without some evidential value.
[11]
[67]
Of the witnesses at
Camara’s pub, only April was able to identify No 1 as one of
the robbers. When Carstens showed her a photo
album on 7 January 2008
she was not able to point out any suspects. She thought the skin
colours in the photos seemed too light.
She testified, however, that
on 12 August 2009, while she was waiting at court to testify, she saw
the accused and immediately
recognised No 1 and No 3 as the two
persons who had been keeping guard in the alley.
[68]
While April’s
evidence does not read badly (and she too was subjected to an unduly
lengthy cross-examination), the magistrate
stated that she came
across as uncertain and he thought that her evidence did not really
advance the State’s case. To this
I may add that April’s
description of the clothes worn by the man she identified as No 1
cannot confidently be said to accord
with what No 1 was wearing that
night. She said this person was wearing a cream/beige T-shirt and
beige knee-length pants. In the
police photo taken shortly after No
1’s arrest he is shown wearing a white T-shirt with thin pink
stripes. He testified at
the trial-within-a-trial (this was after
April testified) that when arrested he was wearing black jeans. This
was not challenged
or further explored.
[69]
I thus consider that
there is insufficient reliable eyewitness testimony to place No 1 on
the scene at the time of the robbery.
However, there is the reliable
evidence of Mtindizi and Nkonki that he was in No 2’s company
during the afternoon and evening.
[70]
There is also evidence
that after the car chase No 1 was found hiding near to the abandoned
Opel. It is common cause that he was
concealed under a mattress in an
outside room belonging to Fransiya Dick (the room did not have a door
or roof). Erasmus testified
that two shots were fired in his general
direction by one of the men who fled from the car. He did not say
that he returned fire.
On his evidence, there were thus only two
shots fired within seconds of each other. The police then began a
search. Erasmus said
that No 1 was only found about 30 minutes later.
According to Louw, who found and arrested him, the outside room was
about 30 to
40 metres from where the car was abandoned. No 1 did not
offer an explanation for hiding in the outside room.
[71]
Dick testified that the
gunshots woke her up. She turned on the light and opened the door. A
man wearing a white and pink T-shirt
approached her and pleaded to be
allowed inside (‘
Mamma
asseblief help my dat ek die huis binnegaan’
).
He even offered to pay her. She refused and closed the door. She went
to her window, attracted the attention of a policeman and
told him
about the man.
[72]
No 1 denied having
spent the night of 28/29 December 2007 with his girlfriend
Ngayemfunda. Friends picked him up from his mother’s
house in
the morning. One of these friends was a person called
Tamarisa
,
and it was in his car that they travelled. He said these friends were
from his neighbourhood in Delft but he did not know their
addresses.
They went to Avian Park where a ‘street bash’ was to take
place. They did some things along the way, arriving
at Avian Park at
about noon. He himself did not know anyone in Avian Park but he had
been there before with
Tamarisa
.
They drank in the street. There was music coming from a house. The
street in question was the road dividing the formal part of
Avian
Park from the informal settlement. At some stage he went between the
shacks to urinate. This was when he heard shots. He
ran deeper into
the informal settlement and hid. He denied having spoken to Dick. He
admitted that he did not offer an explanation
when Louw asked him why
he was hiding there.
[73]
No 1’s denial
that he spoke with Dick is inconsistent with her evidence. Dick made
a favourable impression on the magistrate.
Furthermore, No 1’s
attorney did not, during Dick’s cross-examination, challenge
her version that No 1 asked to be
allowed inside and offered to pay
her. No 1, by contrast, made a poor impression on the magistrate.
[74]
No 1 did not foreshadow
an alibi until Nkonki was cross-examined. His version overall is
highly implausible. It is unlikely that
he would have been picked up
in Delft as early as 06h30 with a view to attending a street party in
Avian Park. He did not explain
what he and his friends did between
06h30 and noon. His version was inconsistent with what was put on his
behalf to Mtindizi, namely
that he had left Delft for Avian Park at
about 11h00. When cross-examined about this, he said he did not know
where his lawyer
got this from.
[75]
Since the car chase
ended after midnight on 29 December 2007, No 1 on his version must
have been at the street party for more than
12 hours, apparently
standing in the road the whole time. His evidence about the street
party (which he gave in March 2012) was
at odds with his testimony at
the trial-within-a-trial (given in September 2011). On the earlier
occasion he claimed to have been
drinking in Avian Park at a shebeen
called Plank
Hok
.
He was not able to explain the discrepancy.
[76]
He claimed not to have
been with his friends when the gunshots were fired and did not know
what became of them. His supposed reaction
to the gunshots was very
peculiar. He ran deeper into the informal settlement, ie in the
direction from which the shots came, rather
than back to the road
where the street party was taking place. Only two shots were fired
over the space of a few seconds. On No
1’s version, he must
have still been looking for a hiding place sometime after the brief
outburst of gunshots had come to
an end. Why did he still feel the
need to hide? Even if he wished to get off the street, why did he
find it necessary to conceal
himself under a mattress rather than
simply taking shelter in the room? And why would he remain hidden
there for half an hour or
so? Given his proximity to the place where
the car chase ended, it is difficult to believe that he could not
have been aware of
the police’s presence. They had arrived
there with flashing blue lights and sirens. Erasmus testified that
there were upward
of 20 officials on the scene. The reaction of an
innocent person would have been to approach the police rather than
hide from them.
[77]
On No 1’s
version, his three friends could have vouched for his alibi. The case
was twice postponed for the possible calling
by No 1 of an
unidentified witness. On the third occasion No 1’s attorney
informed the court that the witness was ‘still
not available’
and that his client had decided to close his case without further
evidence.
[78]
The magistrate was thus
fully justified in rejecting No 1’s version as false. Reliable
State evidence placed him in the company
of No 2 (who was definitely
one of the perpetrators) during the afternoon and evening of 29
December 2007 and justified the further
inference that he and No 2
were among the persons who fled from the abandoned Opel. Although the
evidence is circumstantial, and
although there is no direct evidence
of the role played by No 1 in the robbery, the court a quo was thus
correct in finding that
the State had proved his complicity beyond
reasonable doubt.
The case
against No 4
[79]
Ngayemfunda testified
that No 4 was one of the men that came to her house early on the
morning of 29 December 2007 to collect No
1. They were inside the
house for about five to ten minutes while No 1 got dressed. She did
not really look closely at them (except
for Magou, who attracted her
attention because of the concealed firearm). However she picked up
their names from the discussion.
One of them was called Allie.
[80]
She said she went to
the police to make a statement after hearing from No 1’s mother
that the police wanted to talk to her
because No 1 had told them that
he had been with her earlier on 29 December 2007. Her first and main
statement was not put to her
in cross-examination, from which it is
safe to infer that her statement mentioned the names about which she
subsequently testified.
[12]
In fact, the proposition put to her in cross-examination was that she
heard the names from No 1 when visiting him at Bellville-South,
which
she denied.
[81]
Ngayemfunda also
testified that when she and Cynthia visited No 1 at Bellville-South
on 31 December 2007, she saw No 2, No 3 and
No 4 together in a cell .
She recognised one of these men as Allie (ie No 4). This was just two
days after she had seen the men
at her house. She was not asked to
participate in a photo ID parade, perhaps because she knew No 1 well
and had seen the other
accused in custody and recognised them a
couple of days later.
[82]
Mtindizi identified No
4 as one of the persons who was with No 2 on the afternoon and
evening of 29 September 2007. She did so during
a photo ID parade on
8 October 2008. She testified that his was the only identification
with which she had struggled because there
were two photos which
looked very alike but she was ultimately confident of her
identification.
[83]
When Nkonki saw No 2
and two others (No 3 and No 4) under arrest in Rawsonville on 1
January 2008, she immediately identified the
two others as having
been among the men present at the house on 29 December 2007. I have
already observed that the circumstances
in which this identification
was made call for caution. However Nkonki in general made a
favourable impression on the magistrate.
We cannot interfere with his
conclusion that Nkonki made an honest identification. In assessing
whether the identification was
reliable, one must counter-balance the
irregular circumstances in which it was made against the fact that
Nkonki had opportunity
to observe the men in relaxed circumstances
over a period of some hours. She served them supper. It was three
days later that she
saw the three men under arrest. The faces of No
2’s acquaintances would still have been fresh in her mind.
Furthermore, her
identification of No 4 does not stand alone. It is
corroborated by Mtindizi’s testimony.
[84]
No 4 can derive no
benefit from the evidence of No 2 and No 1 to the effect that none of
them knew each other and that none of them
(apart from No 2) were at
Nkonki’s place on the afternoon and evening of 29 December
2007, because the evidence to that effect
by No 2 and No 1 was
correctly rejected as false.
[85]
I have already observed
that the various accused denied knowing each other. Engelbrecht
testified that No 2 and No 4 were together
when the police arrived to
arrest them on the afternoon of 30 December 2007. Had this been
clearly established, it would have undermined
No 4’s claim.
However, both No 2 and No 4 testified at the trial-within-a trial and
again in the main case that they were
alone and at different
addresses when arrested. Each gave the address at which he was
allegedly arrested. This aspect was not taken
up with them in
cross-examination.
[86]
No 4 testified that on
29 December 2007 he had been painting his house in Khayelitsha. He
finished at about 14h00, washed and went
to fetch his girlfriend,
Babalo Njedo
.
They returned to his house at about 19h00 and spent the rest of the
night there. The magistrate did not comment adversely on his
demeanour. His version, unlike those of No 1 and No 2, is not
inherently implausible. He did not, however, call his girlfriend
to
corroborate his alibi.
[87]
It is clear from the
magistrate’s judgment that he regarded the decisive factor in
No 4’s case as being his confession.
It was this which
distinguished his case from that of No 3 who was acquitted.
[88]
We are not bound,
however, to uphold No 4’s appeal merely because it appears that
but for his confession the magistrate would
probably have acquitted
him. It is apparent that the magistrate formed a favourable opinion
of Ngayemfunda, Mtindizi and Nkonki.
If their identification was
accepted as reliable in respect of No 1 and No 2, why should we not
accept it in respect of No 4? If
No 4 was in truth in the company of
No 1 and No 2 during the afternoon and evening of 29 December 2007
and left Goudini with them
in the maroon Opel at about 22h00, the
inference would be irresistible – in the absence of evidence to
the contrary which
could reasonably possibly be true – that No
4 remained with them and participated in the robbery. No 4 did
not offer
a version that he had parted company with the other accused
at some stage after 22h00. Instead he put up a false version that he
had never been with them at all.
Common
purpose
[89]
Mr Klopper argued that
there was insufficient evidence to establish on a balance of
probability that the accused had a common purpose
to rob and kill
Camara. The requirements for criminal liability on the basis of
common purpose are trite (
S
v Mgedezi & Others
1998
(3) SA 687
(A) at 705I-706C;
S
v Thebus & Another
[2003] ZACC 12
;
2003 (6) SA 505
(CC) paras 49-50). In the present case the accused
went together by car to Camara’s pub. The eyewitnesses
attributed active
roles to four perpetrators. No 2, who I am
satisfied was one of the men that confronted Camara in the bar area,
had a firearm,
as did at least one man in the alley. A pistol was
found in the abandoned car behind the front passenger seat, with one
round in
the chamber and another in the magazine. A Rossi revolver
was found in the boot. The occupants must have had at least one
further
firearm, because the person who shot at Erasmus fled with his
firearm.
[90]
This evidence, coupled
with the adverse inference to be drawn from the accused’s false
denial of being present at the scene,
justifies the conclusion beyond
reasonable doubt that the perpetrators intended to rob Camara’s
pub and to use firearms to
achieve their purpose. Intent to kill, at
least in the form of dolus eventualis, must have been present.
[91]
In my view, therefore,
the appellants’ convictions should be upheld.
Sentence
(No 2 only)
[92]
In the absence of
substantial and compelling circumstances, Camara’s murder
attracted a life sentence because it was committed
in the course of
the perpetration of robbery with aggravating circumstances and
because it was committed by a group of persons
acting in the
execution or furtherance of a common purpose.
[93]
The approach to the
question whether substantial and compelling circumstances exist is
the one laid down in
S
v Malgas
2001 (1)
SACR 469
(SCA), which has been consistently followed. In terms of
that case the factors to be considered in determining whether
substantial
and compelling circumstances exist are all the factors
traditionally taken into account in assessing an appropriate
sentence, bearing
in mind, however, that it is no longer ‘business
as usual’ and that the emphasis has shifted to the objective
gravity
of the crime and the need for effective sanctions. If, after
considering all relevant sentencing factors, the court has not merely
a sense of unease but a conviction that injustice will be done if the
prescribed sentence is imposed or (to put it differently)
that the
prescribed sentence would be disproportionate to the crime, the
criminal and the legitimate needs of society, there will
be
substantial and compelling circumstances requiring the court to
depart from the prescribed sentence.
[94]
The Supreme Court of
Appeal has emphasised, however, that a trial court should not base a
finding of substantial and compelling
circumstances on flimsy or
speculative grounds or hypotheses (see, eg
S
v PB
2011 (1) SACR
448
(SCA) paras 9-10 and the passages there quoted). In
Malgas
it was said that
the lawmaker has ordained that ‘ordinarily and in the absence
of weighty justification’ the prescribed
sentence should be
imposed. Unless there are ‘truly convincing reasons for a
different response, the crimes in question are
therefore required to
elicit a severe, standardised and consistent response from the
courts’ (para 25).
[95]
In determining whether
an injustice would arise from the imposition of the prescribed life
sentence, the customary sentencing considerations
which come into
play are the well-known triad comprising the offender, the offence
and the interests of society. These three factors
in turn require a
court to bear in mind the varying purposes served by criminal
punishment, namely deterrence, prevention, retribution
and
rehabilitation. Nevertheless, and in respect of crimes dealt with in
the Act, the type of sentence to which these considerations
point
should not be assessed as if the Act had not been enacted. As was
observed by Cameron JA in
S
v Abrahams
2002 (1)
SACR 116
(SCA) at para 25 the Act ‘creates a legislative
standard that weighs upon the exercise of the sentencing court’s
discretion’,
so that even where there are substantial and
compelling circumstances one should expect discretionary sentences to
be more severe
than before.
[96]
No 2 was 22 at the time
the crimes were committed and was thus relatively young. The State
proved no previous convictions. He was
in custody for about three
years and eight months awaiting trial (30 December 2007-30 August
2011). In addition to these factors,
which the magistrate mentioned,
it may also be recorded that he had a four-year-old son currently
residing with the child’s
mother.
[97]
As against these
considerations, there is the gravity of the crime and the
circumstances in which it was committed. No 2 played
a leading role.
Camara’s son testified as to the grief and trauma which his
father’s death had caused the family and
the way the murder had
shattered the town of Rawsonville. No 2 did not express genuine
remorse, stating no more than that he felt
partly responsible because
he had brought the four unknown men into the area – a
completely false attempt to distance himself
from the crimes.
[98]
In
Director
of Public Prosecutions KZN v Ngcobo & Others
[2009]
4 All SA 295
(SCA) the fact that the appellants were aged between 20
and 22 at the time of the premeditated murder was not regarded, on
its
own or with other factors, as constituting substantial and
compelling circumstances. The court said that none of them
demonstrated
immaturity and that there was no evidence of peer
pressure. In
S v
Matyityi
2011 (1)
SACR 40
(SCA) Ponnan JA was critical of the trial judge’s use
of the phrase ‘relative youthfulness’ without any attempt
at defining what exactly that meant in respect of the particular
individual. The learned Judge of Appeal said that while someone
under
the age of 18 years could be regarded as naturally immature the same
does not hold true for an adult and that a person of
20 years or more
must show by acceptable evidence that he was immature to such an
extent that his immaturity can operate as a mitigating
factor.
[99]
In regard to time spent
in custody (as to which, see
S
v Radebe & Another
2013
(2) SACR 165
(SCA), holding that there is no mechanical rule of
thumb), the magistrate observed that the defence had contributed to
the delay.
There is merit in this observation though even if No 2 had
conducted his defence with greater efficiency and economy his
awaiting-trial
period would have been lengthy on account of other
factors. In
Director
of Public Prosecutions, KwaZulu-Natal v Ngcobo & Others
2009
(2) SACR 361
(SCA) the three accused, two of whom were 20 at the time
of the murder and the third 22, argued that a two and a half year
period
awaiting trial should count in their favour. On appeal by the
State, the Supreme Court of Appeal set aside an 18-year sentence for
murder and replaced it with the prescribed life sentence. With
reference to the awaiting-trial period, Navsa JA observed that the
accused had maintained their innocence throughout the trial and
sentencing proceedings, which necessitated the leading of extensive
evidence. In
Director
of Public and North Gauteng Pretoria v Gcwala & Others
2014
(2) SACR 337
(SCA) the State conceded that the four-year period which
the accused had spent awaiting trial constituted substantial and
compelling
circumstances to depart from the prescribed life sentence
but successfully appealed against the trial court’s approach of
giving the accused credit for double the amount of time in custody.
[100]
Each case must depend
on its own particular circumstances. When all the circumstances are
weighed in the present case, I do not
think the magistrate erred in
his conclusion that there were not substantial and compelling
circumstances to deviate from the prescribed
life sentence. In the
language of
Malgas
,
the case has not created in me
a
conviction that injustice would be done if the prescribed sentence
were imposed or that the prescribed sentence would be
disproportionate
to the crime, the criminal and the legitimate needs
of society.
Conclusion
[101]
It would not be right
to end this judgment without commenting on the way the trial was
conducted. Defence counsel cross-examined
at inordinate length,
tediously returning to ground already traversed, exploring in absurd
detail matters which no witness could
be expected to recall, posing
‘questions’ which at times ran to a page or more,
unfairly suggesting to witnesses that
if their version differed from
that of another witness one of them must be lying, being aggressive
and so forth. On neither side
was there a serious endeavour to ensure
that the evidence unfolded in a coherent fashion. The task of a
reader could have been
facilitated by early agreement on basic
matters of geography and layout. The magistrate, who otherwise
conducted in exemplary fashion
a difficult trial which ran before him
in fits and starts and delivered thorough and helpful judgments,
should have intervened
to keep cross-examination within proper
bounds. This was necessary in fairness to witnesses and to prevent
the inefficient wasting
of judicial resources. Had this been done,
the length of proceedings might have been reduced by half.
[102]
The appeals against the
convictions and the second appellant’s appeal against sentence
are dismissed.
______________________
ROGERS
J
______________________
STEYN
J (conc)
APPEARANCES
For
Appellant
Mr
KJ Klopper
Instructed
by
Cape
Town Justice Centre
Reserve
Bank Building
60
St Georges Mall
Cape
Town
For
Respondent
Ms
M Blows
Office
of the Director of Public Prosecutions
Western
Cape
[1]
The warning statement is not in the record but he
was questioned about it [record 1684; 1715-1720].
[2]
Record 4272 (No 2), 4234 (No 3) and 4310 (No 4).
[3]
All the warning statements were deficient in
precisely the same respects. The selections not made on the form
were: that the suspect
did/did not understand the allegations
against him; that he understood the provisions of the Constitution
and elected/declined
to make a statement and/or answer questions;
that he was/was not at present under the influence of alcohol or
narcotics.
[4]
Again, all the warning statements had the
identical pre-selections, including: that the suspect declined to
exercise his right
to remain silent; that he was not assaulted in
any way; that he was satisfied that his statement had been correctly
noted; and
that he was satisfied with the interpreter. (The last of
these selections was inapposite since no interpreter was used in
taking
the warning statements.)
[5]
See also
R v
Ndoyana
& Another
1958
(2) SA 562
(E) at 564A-C per De Villiers JP;
S
v Nzama & Another
[2009] ZAKZPHC
13 para 6 and cases there discussed.
[6]
Record 4101-4105.
[7]
Record 4123-4124.
[8]
See photo at 4125.
[9]
‘
[6] The appellant’s
counsel laid heavy emphasis on the complainants’ lack of any
description of their assailants,
particularly of the appellant, to
the police after the robbery. He contended that this omission raises
reasonable doubt about
the reliability of their identification. It
seems to me that the police, rather than the complainants, are to
blame for this
omission. The police were told by the complainants
that they would be able to recognize the robbers in the event that
the complainants
see them again. But no descriptions of the robbers
were sought from the complainants. In any event, even if it can be
said that
the omission is attributable to the complainants, it must
be considered on the evidence as a whole. As stated above, the
complainants
had adequate opportunity for a reliable identification
and the conditions were conducive to such reliability. As it turned
out
both complainants did, on their version, see one of their
assailants, the appellant, again on more than one occasion and they
took active steps to have the appellant arrested. The complainants’
lack of any description of their assailants can therefore
not
detract from the reliability of their identification when all the
facts and circumstances are considered.
[7] Criticism
was also levelled against Botha's identification of the appellant at
the police station after his arrest. The
submission was made that it
is tantamount to a 'dock identification' on which no reliance can be
placed. In
S v Tandwa
2008 (1) SACR 613
(SCA) para 129, this
court reiterated that '. . .[d]ock identification . . . may be
relevant evidence, but generally, unless
it is shown to be sourced
in an independent preceding identification . . . carries little
weight'. The exception alluded to in
this passage applies in this
matter. Botha's identification at the police station therefore
serves as a further factor enhancing
the reliability of the
identification, albeit to a very limited extent.
[10]
See
S v Van Willing
& Another
[2015] ZASCA 52
para 14
(and see my fuller discussion of the matter in paras 58-61 of my
judgment in the court a quo:
S v Van
Willing & Another
Case SS01/2013).
[11]
See, eg,
S
v
Mdlongwa
2010 (2) SACR 419
(SCA) para 10
where Saldulker AJA (as she then was) said the
following:
‘
Additionally,
merely because Mbatha made a dock identification of the appellant
and accused five, does not make his evidence less
credible.
Generally, a dock identification carries little weight, unless it is
shown to be sourced in an independent preceding
identification. But
there is no rule of law that a dock identification must be
discounted altogether, especially where it does
not stand alone.
Mbatha had ample opportunity at least to observe two of the robbers
who participated in the robbery as is visible
from the video footage
and who were later identified as the appellant and accused five in
the facial comparison made by inspector
Naude, an aspect to which I
shall return to later, thus supporting his dock identification of
them.’ (In the second sentence
of this passage she made a
footnote reference to
S
v Tandwa
2008 (1)
SACR 613
(SCA) at 617b-d. See also
S
v
Ramabokela
& Another
2011
(1) SACR 122
(GNP) paras 21-22.)
[12]
The statement of 2 January 2008 at record
4179-4180 is clearly a supplementary statement.