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[2013] ZASCA 208
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Meyer v S (46/12) [2013] ZASCA 208 (28 November 2013)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 46/12
Not
Reportable
In
the matter between:
FAROUK
MEYER
..........................................................................................................
APPELLANT
and
THE
STATE
..................................................................................................................
RESPONDENT
Neutral
citation:
Meyer v The State (46/12)
[2013] ZASCA 208
(28 November 2013)
Coram
:
Cachalia, Shongwe, Majiedt JJA
Heard:
18 NOVEMBER 2013
Delivered:
28 NOVEMBER 2013
Summary:
Criminal law – application for special leave to appeal, for
condonation of the late filing of the application and
an application
to lead new evidence – tests restated – evidence of
independent witnesses overwhelming on convictions
–
requirements for the presenting of new evidence not met –
sentence – material misdirection by the trial court
in respect
of applicability of the minimum sentence legislation – special
leave to appeal granted against sentence on two
murder counts –
sentence set aside and, upon consideration de novo, life sentences
substituted with sentence of 24 years’
imprisonment.
ORDER
On
appeal from:
Witwatersrand Local
Division (Van Oosten, Snyders and Coetzee JJ, sitting as court of
appeal):
(1)
Condonation is granted for the late filing of the application for
special leave to appeal.
(2)
The application for leave to appeal against the convictions is
dismissed.
(3) The application for leave to lead new evidence on
appeal is dismissed.
(4)
The application for leave to appeal against the sentences imposed on
counts 3 and 5 is granted.
(5)
The appeal against sentence is partly upheld. The order of the court
below confirming the life sentences on counts 3 and 5 imposed
by the
trial court is set aside and substituted with the following:
‘
(a)
The accused is sentenced to 24 years’ imprisonment on each of
counts 3 and 5.
(b) The sentences on counts 1, 2, 4, 5, 7 and 8 are to
run concurrently with the sentence on count 3.
(c)
The sentences are antedated to 9 November 2000’.
JUDGMENT
MAJIEDT
JA ( Cachalia and Shongwe JA concurring):
[1]
The applicant, Mr Farouk Meyer, applies for special leave to appeal
against a judgment of the full court of the Witwatersrand
Local
Division (as it was then known), by van Oosten J, Snyders and Coetzee
JJ concurring (the main application). This judgment,
dismissing the
applicant’s appeal against his convictions and sentences by Bam
AJ, was delivered on 23 August 2002 and there
is consequently an
accompanying application for condonation for the late filing of the
main application. The applicant also applies
for leave to lead new
evidence on the merits of his convictions. All these applications
were referred for oral argument in this
Court. The applicant prepared
his application in person, but procured legal representation at a
very late stage to argue the matter.
He was legally represented at
his trial, in the court below and for a period thereafter.
[2]
The convictions emanate from a shooting incident in a popular night
club, Club 12 Play (which actually consists of 2 separate
nightclubs), in Roodepoort on 17 October 1999, during which inter
alia three persons were shot dead, another one was shot and wounded
and a fourth was seriously assaulted. The appellant was convicted for
these offences, ie three counts of murder, one count of attempted
murder, one count of assault with intent to do grievous bodily harm,
unlawful possession of the firearm and unlawful possession
of an
unknown quantity of ammunition. Sentences ranging from 6 months’
imprisonment (for the unlawful possession of ammunition)
to two life
sentences (on two of the murder counts) were imposed. Before I
elaborate on the factual matrix underlying the convictions,
I deal
first with the condonation application.
Condonation
[3]
As is evident from the introductory paragraph above, this application
for special leave is being brought some 11 years after
the dismissal
of the appeal in the court below. This is an extraordinarily long
delay. The explanation proffered by the applicant,
namely that he
first had to gather proof ‘that (he) was framed and that the
evidence that was led during (his) trial was
false’ (in essence
the applicant’s case in the main application is that the
investigating officer, Inspector Coetzee,
had manipulated the entire
investigation) is not persuasive and is contrary to other objective
facts which I do not deem necessary
to refer to. The test for
condonation entails, broadly speaking, an evaluation in the main of
the degree of non-compliance and
the explanation therefor as well as
the prospects of success (see
S v
Senkhane
2011 (2) SACR 493
(SCA) at
paras 28 and 29). Given the explanation for the long delay, the
prospects of success in the main application will be decisive
in the
condonation application.
The
merits of the application for special leave to appeal against the
convictions
[4]
The determination of reasonable prospects of success on appeal has
recently been restated by this court as follows in
Smith v S
(2012) (1) SACR 567
(SCA) para 7:
‘
What
the test of reasonable prospects of success postulates is a
dispassionate decision, based on the facts and the law, that a
court
of appeal could reasonably arrive at a conclusion different to that
of the trial court. In order to succeed, therefore, the
appellant
must convince this court on proper grounds that he has prospects of
success on appeal and that those prospects are not
remote but have a
realistic chance of succeeding. More is required to be established
than that there is a mere possibility of success,
that the case is
arguable on appeal or that the case cannot be categorised as
hopeless. There must, in other words, be a sound,
rational basis for
the conclusion that there are prospects of success on appeal.’
[5]
There were two mutually destructive versions of the shootings and
assault in the nightclub before the trial court. On the State’s
case the applicant was the aggressor, while he maintained that he
acted in self-defence. The incident appears to have arisen after
a
criminal gang known as the Majimbos split, resulting in the formation
of two camps, one led by the applicant and the other by
one of the
deceased, Mr Gerald Jacobs (also known as ‘Wange’ or
‘Cheeks’), who is said to have been the
leader of the
Majimbos. Several shootings had preceded the incident in question.
The eyewitnesses who testified for the State,
including the
complainant on the attempted murder charge, Mr Shaun Geduld (also
knows as ‘Ziggies’), were in the Jacobs
camp, so that
caution has to be applied in evaluating their testimony, particularly
insofar as they incriminate the applicant.
[6]
The State case is that at the time of this incident (around 1 or 2
am), there were more than 1000 patrons in the nightclub.
An
altercation ensued in the so-called VIP bar area of the one club. The
applicant became involved in this altercation. On the
State’s
version the applicant left the club in a highly agitated state during
the course of the altercation. On exiting the
VIP bar area, he
collided with Ms Fahmieda Mahomed. She swore at him and he retaliated
by hitting her with a glass in the face.
The glass shattered, causing
severe facial cuts to Ms Mahomed, for which she required extensive
reconstructive plastic surgery.
It appears as if the applicant’s
right hand was also cut in the process. Ms Mahomed retaliated, also
with a glass, The applicant
then left the club. This incident forms
the basis of the conviction of assault with intent to do grievous
bodily harm.
[7]
The applicant returned a few minutes later with a .357 Magnum Taurus
revolver. He fired a shot in the ceiling at the entrance
and
proceeded inside where he fired four further shots in the vicinity of
the VIP bar area, killing Jacobs, Mr Desmond Bethanie
and Mr David
Malgas and also wounding Geduld in the knee. The applicant left the
club and handed the revolver in at the Eldorado
Park police station.
At the trial it was formally admitted by the defence that the three
deceased had all died due to gunshot wounds
caused by this revolver.
[8]
The applicant gave a completely different version. He confirms that
there was an altercation at the VIP bar area, instigated
by members
of the Jacobs group. He intervened and tried to stop the brawl, but
was hit from behind with a bottle by a person known
as Elvis. Another
person, known as ‘Muis’, ran towards him with two broken
bottles in his hands and stabbed the applicant
in the right hand. He
overheard Geduld asking Jacobs to hand him (Geduld) the gun. When
Geduld got the firearm, the applicant and
Geduld wrestled for
possession thereof and two shots went off. He saw Jacobs running
towards him with a bottle and he fired a shot
towards Jacobs. Another
person jumped in between them and the bullet struck both this person
(who later turned out to be the deceased,
Bethanie) and Jacobs. The
applicant exited the club and was attacked by one Kiron. To deter him
the applicant fired another shot
into the air at the entrance to the
club. He then drove to the Eldorado Park police station where he
handed in the firearm. He
sustained injuries to his nose, head and
right hand during the incident. He denied assaulting Ms Mohamed and
alleged that he had
seen her for the first time in court.
[9]
Numerous discrepancies in the various State witnesses’ versions
and between them were highlighted during argument before
us. We were
referred to various aspects which, so it was contended, favoured the
applicant’s version on the probabilities.
The dock
identification of the applicant by Ms Mahomed at the trial was
contended to be unreliable. The lingering animosity between
and
preceding attacks on each other by the two groups were emphasized as
a reason for possible false testimony by the witnesses
aligned to the
Jacobs faction. The trial court was alive to all of these aspects.
The learned judge sought and found corroboration
for Ms Mahomed’s
version in the evidence of other witnesses. He was mindful of the
prevailing enmity between the two groups
and consequently approached
the evidence of those witnesses aligned to the Jacobs faction with
discernible circumspection. The
crucial evidence which tilts the
scales heavily in favour of the State’s version, is, in my
view, the evidence adduced by
Mr de Villiers and, to a lesser extent,
that of Mr Jonck. These are two completely independent witnesses, not
aligned to any faction.
[10]
De Villiers was the manager of the club at the time. He testified
that, while inside the club, he heard a shot being fired
outside and
then saw the applicant entering the club, brandishing a firearm. The
applicant passed about a metre from him when he
entered the club. De
Villiers said he heard three or four more shots fired in rapid
succession inside the club. He entered and
saw the bodies of the
three deceased in the VIP bar area. De Villiers attended an
identification parade afterwards where he positively
identified the
applicant (whom he had not known before the incident) as the person
whom he had seen brandishing the firearm on
that evening. The trial
court held that the identification parade was procedurally open to
some criticism, due to Inspector Coetzee’s
(the investigating
officer) involvement in some aspects of the arranging and setting up
of the parade. The learned judge consequently
approached this
evidence with some caution. In my view the trial judge was overly
cautious. No untoward conduct was ascribed to
the investigation
officer, nor did any prejudice against the accused flow therefrom.
The identification was in my view made under
acceptable circumstances
and in terms of proper procedures.
[11]
Jonck was the head of security at the club. He testified that the
club was very busy that night. He was stationed at the entrance
to
the club. According to him a woman exited the club at some stage, her
face full of blood (this must have been Ms Mahomed); shortly
thereafter he heard a gunshot and he took evasive action. He saw two
persons running into the club, but was unable to recognise
them. He
hid behind a concrete pillar and heard four more gunshots inside the
club. After the shooting was over he entered the
club and saw the
bodies of the three deceased.
[12]
Applicant’s counsel correctly conceded that the major hurdle
for the applicant on the merits was the evidence of Jonck
(as to the
sequence of events) and in particular that of de Villiers (relating
to the sequence of events and the applicant’s
identification as
the person in possession of the firearm). In my view this hurdle is
insurmountable. The evidence of these two
witnesses tilts the scales
decisively in favour of the State. The trial court correctly rejected
the applicant’s version
as false beyond reasonable doubt,
finding that it was riddled with inconsistencies, improbabilities and
contradictions. While the
applicant made much in his papers of the
alleged manipulation of the evidence by the investigating officer, in
particular the alleged
tampering with the ballistic evidence, his
counsel did not advance any argument at all on this aspect,
understandably so. Nothing
more needs therefore to be said about it.
The
prospects of success in the application for leave to lead new
evidence
[13]
The applicant seeks leave to lead the new evidence of the following
witnesses on appeal:
(a)
Captain Barends – this evidence relates to the now abandoned
point on the tampering with ballistic evidence and would
serve no
purpose whatsoever;
(b)
Inspector Stander – it is not clear what purpose this witness’s
evidence would serve;
(C)
Inspector Coetzee – no new evidence emerges from the proposed
testimony and can be disregarded altogether;
(d)
Dr David Klatzow – this is a forensic expert whose evidence is
also aimed at the alleged tampering with ballistic evidence.
Apart
from the fact that that challenge has now been abandoned, applicant’s
counsel correctly in my view disavowed any reliance
on Dr Klatzow’s
report, since it is manifestly plain that he was not familiar with
the trial record.
(e)
The recantation of the evidence of Geduld and Mohamed Rashid Petersen
– these two witnesses now seek to recant their earlier
testimony. On either score they would have perjured themselves in at
least one instance and this ought not to be countenanced.
[14]
Applicant’s counsel conveyed to us that he had instructions not
to abandon the application for leave to lead new evidence,
but he did
not present any argument on it, save for the concession in respect of
Dr Klatzow. There is absolutely no merit in the
application to lead
new evidence and it ought to be dismissed.
The
merits on the application for leave to appeal against sentence
[15]
The applicant was sentenced as follows:
(a)
Count 1, assault with intent to commit grievous bodily harm: 8
months’ imprisonment;
(b) Count 2, attempted murder: Five years’
imprisonment;
(c) Count 3, murder (Jacobs): Life imprisonment;
(d) Count 4, murder (Malgas): Ten years’
imprisonment;
(e) Count 5, murder (Behtanie): Life imprisonment;
(f) Count 7, unlawful possession of a firearm: Two
years’ imprisonment;
(g) Count 8, unlawful possession of ammunition: 6
months’ imprisonment.
Leave
is sought in respect of the two life sentences on counts 3 and 5. The
trial court imposed these sentences by virtue of the
provisions
contained in s 51 of the Criminal Law Amendment Act 105 of 1997 (the
Act). But this constitutes a material misdirection,
since it is
common cause that the indictment made no mention at all that the
State would invoke the minimum sentence legislative
provisions,
namely s 51(1), read with s 51(3) of the Act, which provide that
absent any substantial and compelling circumstances,
a court must
sentence an accused person to life imprisonment for inter alia
planned or premeditated murder. This aspect was never
raised by the
prosecution either at the plea stage or at any other stage thereafter
during the trial. It is self-evident that an
accused person would be
inclined to approach his or her defence strategy differently in
respect of a charge where he or she faces
a minimum sentence of life
imprisonment for murder (in terms of s 51(1), read with s 51(3) of
the Act) as opposed to a murder charge
with a minimum sentence of 15
years’ imprisonment (in terms of s 51 (2)(
a
),
read with s 51(3).
[16]
It is by now well settled that there is a duty on the prosecution, in
the interests of the constitutional right to a fair trial,
to bring
pertinently to the accused’s attention that it intends to rely
upon the minimum sentencing regime created by the
Act. If this is not
done in the indictment or the charge sheet, it must be done at a time
and in a manner which affords the accused
sufficient notice of the
State’s intention so as to enable him or her to prepare
properly for his or her defence. See:
S
v Legoa
2003 (1) SACR 13
(SCA) para 20;
S v Makatu
2006 (2) SACR 582
(SCA) paras 4 – 7.
[17]
This material misdirection has the effect that special leave to
appeal against sentence should be granted. This court may consider
sentencing afresh in the light of this material misdirection. The
applicant’s personal circumstances were briefly as follows
at
the sentencing stage – he was a young man, 24 years of age, ran
his own business and supported his family with the income
generated
from it. He was treated as a first offender for sentencing purposes.
The gravity of his crimes is self-evident. The applicant
left the
club in a rage and fetched a firearm from outside. He had a few
minutes to calm down and to reflect on what he was about
to do. His
intent was plain – upon re-entry to the club he fired a shot in
the air to facilitate his entry past the security
guards. He then
proceeded to fire three or four shots with a powerful revolver in a
club filled with patrons, more than 1000 according
to the evidence.
He shot to kill and, as is evident from the killing of Malgas, he had
no regard for the safety of the many bystanders.
The interests of
society demand that these crimes be visited with severe penalties.
But the applicant has been in custody for about
14 years, one year of
which was spent while awaiting trial. This is a factor which bears
consideration in arriving at an appropriate
sentence. It appears that
the incident was precipitated by the altercation to which I have
referred. This set in motion the chain
of events which lasted no more
than a few minutes. There was no evidence to suggest that the
applicant had planned the shooting.
[18]
I am of the view that a sentence of 24 years’ imprisonment on
each of counts 3 and 5 will be a just sentence in the circumstances.
All the various convictions emanate from one single incident and it
is therefore proper that the sentences on counts 1, 2, 4, 5,
7 and 8
run concurrently with the sentence on count 3, ie an effective
sentence of 24 years imprisonment.
[16]
I make the following order:
(1)
Condonation is granted for the late filing of the application for
special leave to appeal.
(2)
The application for leave to appeal against the convictions is
dismissed.
(3) The application for leave to lead new evidence on
appeal is dismissed.
(4)
The application for leave to appeal against the sentences imposed on
counts 3 and 5 is granted.
(5)
The appeal against sentence is partly upheld. The order of the court
below confirming the life sentences on counts 3 and 5 imposed
by the
trial court is set and substituted with the following:
‘
(a)
The accused is sentenced imprisonment to 24 years’ on each
count 3 and 5.
(b)
The sentences on counts 1, 2, 4, 5, 7 and 8 are run concurrently with
the sentence on count 3.
(c)
The sentences are antedated to 9 November 2000’.
________________________
S
A MAJIEDT
JUDGE
OF APPEAL
APPEARANCES
For Appellant: J G Cilliers SC with B C Stoop
Instructed
by: L S Francis Attorneys, Johannesburg
For Respondent: Z J van Zyl SC
Instructed by:
Director of Public Prosecution, Johannnesburg