Burger and Others v S (236/09) [2010] ZASCA 12; 2010 (2) SACR 1 (SCA) ; [2010] 3 All SA 394 (SCA) (12 March 2010)

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[2010] ZASCA 12
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Burger and Others v S (236/09) [2010] ZASCA 12; 2010 (2) SACR 1 (SCA) ; [2010] 3 All SA 394 (SCA) (12 March 2010)

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THE
SUPREME COURT OF APPEAL
REPUBLIC
OF SOUTH AFRICA
JUDGMENT
Case no: 236/09
MAGIEL
BURGER
First Appellant
FELOKWANE
GOQO
Second
Appellant
JOACHIM PRINSLOO
Third Appellant
and
THE
STATE
Respondent
________________________________________________________________
Neutral citation:
Burger
v The State
(236/09)
[2010]
ZASCA 12
(12 March 2010)
CORAM:
Navsa,
Mthiyane, Mlambo, Cachalia JJA and Majiedt AJA
HEARD:
16
February 2010
DELIVERED:
12
March 2010
CORRECTED:
SUMMARY: Circumstantial evidence ─
insufficient to sustain conviction on a charge of murder ─
kidnapping conviction not warranted
─ undesirable interrogation
methods discussed ─ blurring of lines between official and private
investigations criticised ─
police officials acting in two
capacities unacceptable.
________________________________________________________________
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
High
Court, Pretoria (Makhafola AJ sitting as court of first instance).
1. The appeal against both
convictions is upheld and the convictions and related sentences are
set aside.
2. The cross-appeal against sentence
is dismissed.
________________________________________________________________
JUDGMENT
________________________________________________________________
NAVSA JA (Mthiyane, Mlambo, Cachalia
JJA and Majiedt AJA concurring)
[1] On 2 October 2007 the three
appellants, who at material times were policemen,
1
were each convicted in the Pretoria High Court (Makhafola AJ) of the
kidnapping and murder of Mr Sandy Botomane (the deceased). On
the
same day each was sentenced to 12 months’ imprisonment on the first
count, and to life imprisonment in respect of the second.
[2] The present appeal is before us
with the leave of the court below. The appellants appeal against
their convictions and the sentence
of life imprisonment and the
State, against the sentence in relation to the kidnapping conviction.
The appellants contend that the
former sentence is too severe and the
State, that the latter is too lenient.
[3] The primary question for
consideration is whether the court below, in coming to the
conclusions referred to above, correctly assessed
the evidence in
relation to each count. Of particular importance in this regard is
the approach to be adopted insofar as circumstantial
evidence is
concerned. I turn to deal with the material facts.
[4] It is common cause that the badly
disfigured body of the deceased was found on the N1 national highway
near Vanderbijlpark, during
the early morning hours of 24 May 2000,
in circumstances that appeared as if he had been the fatal victim of
a hit-and-run motorist.
[5] The events that occurred shortly
before and in the weeks leading up to the discovery of the deceased’s
body are important. They
are set out hereafter.
[6] The deceased was a ticket seller
in Pretoria, for Putco, a bus company. Two to three months before the
discovery of the deceased’s
body there had been a theft of R1, 2 m
from the Putco office where the deceased had been employed. The theft
was reported to the
South African Police Services (SAPS) and private
investigators, Associated Intelligence Network (AIN), were appointed
by Putco in
an attempt to find the perpetrators.
[7] As a result of polygraph tests
conducted by AIN, several Putco employees were identified as possible
suspects, including the deceased
and Mr Titus Seboka. These
tests were conducted on 16 May 2000.
[8] The lines between the
investigations by the police and AIN, respectively, became blurred.
For eg, Mr Henry Beukes, who was accused
1 in the court below and who
was discharged at the end of the State’s case, was employed ‘in a
temporary capacity’ by AIN whilst
in the employ of SAPS and whilst
he was on ‘sick leave’. In colloquial language, Mr Beukes appears
to have been ‘moonlighting’.
As will become apparent from what
appears later in this judgment it is not altogether clear whether
particular instructions issued
were at the instance of the police or
by AIN.
[9] On 18 May 2000 Mr Beukes was
informed that an unauthorised ticketing machine had been found in the
deceased’s possession.
[10] On 22 May 2000, whilst he was on
‘sick leave’, Mr Beukes, apparently acting on behalf of AIN,
requested the assistance of
the three appellants, in their capacities
as police officials. It was this request that led to their encounter
with the deceased.
[11] Mr Beukes had ascertained that a
warrant of arrest had been issued in respect of Mr Seboka, unrelated
to the theft from Putco.
He decided that this presented an
opportunity for the police to interrogate Mr Seboka concerning the
theft. In his statement in explanation
of his plea of not guilty in
the court below, Mr Beukes stated the following:
‘
It is a well-known
fact in the police that when a person is in detention such a person
is more willing to co-operate with the police
and divulge full
information to the police than otherwise….’
I shall, in due course, comment on
the ‘well-known fact’ referred to by Mr Beukes and its
application in the present case and
generally.
[12] It is common cause that during
the night of 22 May 2000, leading into the morning of 23 May 2000, Mr
Beukes and the three appellants,
in search of Mr Seboka, went to
his parents’ home in Atteridgeville, Pretoria. They did not find
him there. According to the
testimony of the first and third
appellants, this caused them, in consultation with Mr Beukes, to
decide to go to the deceased’s
house to see if he could lead them
to Mr Seboka.
[13] The three appellants travelled to
the deceased’s house In Atteridgeville. They woke him and
identified themselves as policemen.
They told him that they were
there to ‘pick him up’ to question him about the theft at Putco.
Ms Stella Motileng, the deceased’s
girlfriend and his brother,
Mr Benson Botomane, were present. The deceased was instructed to get
dressed. He complied and accompanied
them to their vehicle.
[14] The appellants, upon enquiry from
the deceased’s girlfriend and his brother, said that they were
taking him to the Atteridgeville
police station. According to Ms
Motileng she specifically directed her question to the second
appellant and he responded by stating
that they were taking the
deceased to the Atteridgeville police station. The deceased entered
the police vehicle and they drove off
with him.
[15] Importantly, as the deceased
departed with the police he told his girlfriend, who was concerned
about his safety, that he had
his cellular telephone and would call
her, if necessary. The deceased left his house with the three
appellants shortly after 02h00
on the morning of 23 May 2000. It is
common cause that the appellants did not take him to any police
station.
[16] The first and third appellants
testified that whilst they were in the deceased’s house they
deliberately did not disclose before
other members of the deceased’s
household that they were seeking his assistance to find Mr Seboka, in
order to prevent any one
of them alerting the latter.
[17] After he departed and left the
house with the appellants no member of the deceased’s household or
family heard from him or
saw him alive again. As to what occurred
after the deceased left his house we only have the version of the
first and third appellants
─ the second appellant, Mr Felokwane
Goqo, did not testify and the State presented no other evidence in
this regard. According
to those two appellants they questioned the
deceased in the motor vehicle about Mr Seboka’s whereabouts.
In response he volunteered
to help them locate Mr Seboka.
[18] According to the two
appellants, the deceased first led them to a house in Atteridgeville.
The deceased then noted that Seboka’s
vehicle was not there and
consequently directed them to an address in Sebokeng. There, he
alighted from the vehicle ostensibly to
enable him to ascertain
whether Seboka’s vehicle was on the premises. Suddenly he fled. It
was dark and they were unsuccessful
in their pursuit of him. They did
not see him alive again.
[19] The deceased’s body was found
on the N1 national highway near Sebokeng approximately 26 hours after
he had left his house to
accompany the three appellants.
[20] Makhafola AJ considered the
events set out above and the testimony of the first and third
appellants. He rejected their version
of events as palpably false. He
had regard to the improbabilities in their evidence and the
contradictions between their evidence
in court and written statements
they had made.
2
He had regard to entries in the personal diary of the first
appellant, made some time after the events of the night on which they
confronted the deceased, and considered that it contradicted evidence
in court on behalf of the appellants in relation to events
after the
deceased had allegedly fled.
[21] The learned judge in the court
below took into account that the third appellant, in the presence of
witnesses, had falsely said
that they were taking the deceased to the
Atterridgeville police station. He reasoned that they had induced the
deceased to go with
them under false pretences, bringing him under
the impression that he was being arrested and concluded that they
were thus guilty
of kidnapping him. He held it against the second
appellant that he did not take the court into his confidence but
chose rather not
to testify. He rejected the alibi evidence proffered
on behalf of the first appellant, that he had been on a police
operation in
Soweto during the night of 23 May 2000 into the early
hours of the morning of 24 May 2000.
[22] Makhafola AJ was acutely aware of
the fact that he was convicting the three appellants on the murder
charge based on circumstantial
evidence. After listing aspects of
their evidence that he found unsatisfactory and rejecting the alibi
evidence he concluded rather
cryptically as follows:
‘
To my mind,
circumstantially, the cumulative effect of these elements of proof is
overwhelmingly unassailable and it establishes beyond
a reasonable
doubt the existence of the
corpus
delicti
as
well as the accuseds’ actions in willfully and maliciously being
its cause. In the totality of all the circumstances the accused
are
not excluded from having caused the death of the deceased. I find
that the accused caused the death of the deceased.’
[23] It is common cause that multiple
injuries caused the deceased’s death. It is not in dispute that the
deceased died somewhere
between 23h00 on 23 May 2000 and
03h40 on 24 May 2000. More importantly, it is uncontested that the
injuries sustained
are consistent with those that might have been
sustained in a hit-and-run collision as well as being consistent with
the deceased
being killed elsewhere and left injured or dead on the
national highway.
[24] A further fact that does not
appear to be in dispute is that the deceased had confided to his
girlfriend, a week before his death,
that his life was under threat.
This was related to the illegal ticket machine found in his cubicle
and to certain persons connected
therewith, who had offered him R10
000 not to reveal their identities. According to Ms Motileng the
deceased had told her that the
machine found in his cubicle belonged
to Mr Seboka.
[25] Mr Seboka testified that his car
had been parked at his house in Atteridgeville on the night when he
was being sought by the
appellants and that it was visible from the
street. The suggestion is that the police must be untruthful about
the reason for seeking
the deceased’s assistance in locating Mr
Seboka. Counsel for the appellants correctly submitted that Mr Seboka
was an unimpressive
and patently dishonest witness. His evidence on
material aspects is unreliable. As stated above, it is clear from the
statements
they made with the assistance of their attorney that the
appellants were looking to arrest Mr Seboka. This is substantiated by
their
visit to his parents’ house. It is unlikely that they would
have passed up the opportunity to arrest him at his house had he been
there.
[26] In P J Schwikkard and S E Van der
Merwe
Principles of Evidence
3 ed (2009) at p 21 para 2 9 the following appears:
‘
Circumstantial
evidence often forms an important component of the information
furnished to the court. In these instances the court
is required to
draw inferences, because the witnesses have made no direct assertions
with regard to the fact in issue. These inferences
must comply with
certain rules of logic.’
[27] Circumstantial evidence is
described as follows in C W H Schmidt
Bewysreg
4 ed (2000) at p 101:
‘
Omstandigheidsgetuienis
is getuienis van ‘n feit of feite waaruit ‘n afleiding omtrent
die primêre feite in geskil gemaak kan
word.’
Later the following appears:
‘
By die uiteindelike
beoordeling van ‘n strafsaak, waar die bewyslas soos normaalweg die
geval is, op die staat rus, kan ‘n feit
in geskil deur
omstandigheidsgetuienis bewys word slegs indien (i) die afleiding wat
die staat bepleit met al die bewese feite versoenbaar
is en (ii) geen
ander redelike afleiding uit daardie feite gemaak kan word nie.’
This, of course, is distilled from
R
v Blom
1939 AD 188
at
202-203 and are the rules of logic referred to in the preceding
paragraph.
3
[28] Having regard to the uncertainty
concerning the cause of death and considering that there were threats
against the deceased’s
life from other quarters and that the
evidence in relation to what occurred after the deceased entered the
police vehicle up until
he allegedly fled is uncontested, and lastly
that there is no evidence of any kind that there had been any contact
between the deceased
and the appellants in the intervening 26 hours,
the conclusion reached by the court below in respect of the murder
charge is unjustified.
The conclusion is not in accordance with the
rules of logic set out in
R
v Blom
.
[29] The criticisms by Makhafola AJ of
the evidence on behalf of the appellants are largely justified. Their
earlier written statements
crafted under the guidance of their
attorney contradict their evidence that the search for and the
interrogation of the deceased
was not premeditated. A consideration
of the alibi evidence reveals that the conclusion reached by the
court in this regard is justified.
I do not intend to deal with the
details thereof. However, it does not necessarily follow that their
lies on these aspects warrant
the conclusion reached by the court
below.
[30] There might be suitable cases in
which it is safe to conclude that lies, together with other
acceptable evidence, prove the guilt
of an accused. However, courts
should be careful to decide against an accused merely as punishment
for untruthful evidence. In
S
v Mtsweni
1985 (1) SA 590
(A) at 594E-F the following is stated:
‘
Voordat ‘n
skuldigbevinding aan moord kan geskied moet daar bewese feite wees
wat by wyse van afleiding die appellant aan die dood
van die
oorledene koppel. By ontstentenis daarvan bestaan daar nie ‘n
prima
facie
saak teen die appellant nie, en kan sy leuenagtige getuienis, net
soos in die geval waar hy nie getuig nie, nie die leemtes in die
Staat se saak aanvul en ‘n gevolgtrekking van skuld regverdig nie.’
[31] As indicated above the inference
that the appellants caused the death of the deceased is not an
inference that can be drawn in
the face of the proved facts referred
to in paras 23, 24 and 28. Consequently the conviction on the murder
count cannot stand.
[32] I turn to deal with the
kidnapping conviction. The offence is defined as the intentional
unlawful deprivation of the liberty
of a person.
4
Of course, if the deceased consented or volunteered to accompany the
appellants a conviction would not be warranted.
[33] After the appellants identified
themselves as policemen they asked the deceased to come with them.
After some debate with his
girlfriend he told her that he thought it
better to go with them because they were policemen. They did not
effect an arrest.
[34] The policemen behaved coarsely
and were overbearing when they encountered the deceased in his house
for the first time. There
is no countervailing evidence to the
version presented by the appellants that, when the deceased was told
they were looking for Mr
Seboka he volunteered to help them locate
the latter and that he subsequently fled. It cannot be said that
their version on this
aspect is not reasonably possibly true and it
impacts on both the murder and kidnapping count. As indicated above,
there is no evidence
linking the deceased to the appellants during
the day before his body was discovered. Once one accepts that the
deceased volunteered
to accompany the appellants as soon as he was
told that they were looking for Mr Seboka, (moments after they had
come out of his
house), the kidnapping conviction cannot be
sustained.
[35] In light of the conclusions set
out above it is not necessary to deal with the sentences imposed by
the court below.
[36] There are remaining aspects I
intend to address. First, there is the question of the ‘well-known
fact’ referred to in para
11 above, namely, that when a person is
in detention he is more likely to co-operate and divulge information
to the police.
[37] Mr Jasper Johannes Prinsloo, a
former policeman, who at some stage was involved in the AIN
investigation into the Putco theft,
testified in the court below
about this. The following passages reflect what was put to him under
cross-examination and his responses:
‘
Ek gaan aan u ‘n
stelling maak wat deur beskuldigde 1 in sy pleitverduideliking aan
hierdie hof gemaak is. Dit is dat dit bekend
is by ervare
polisiebeamptes dat wanneer ‘n persoon gearresteer is, as jy ‘n
lasbrief op hom kan kry en jy kan hom arresteer,
is dit soveel
makliker met die ondervraging want hy is meer geneig dan om sy
samewerking te gee. Hy is uit sy omstandighede uit en
makliker vertel
hy jou wat het gebeur. --- My ervaring is dat dit korrek is, u edele,
grotendeels vanweë die blote feit dat die
verdagte dan ervaar of
aanvaar dat daar
prima
facie
getuienis teen hom moet bestaan aangesien ‘n aanklaer en ‘n
landdros nie ‘n lasbrief sal uitreik op spekulatiewe inligting
nie.
Ek wil dit selfs ‘n
stappie verder neem. Wanneer ‘n persoon ‘n verdagte is en daar is
‘n lasbrief op ‘n ander saak teen
hom, selfs daardie arrestasie
op die ander saak waar die persoon dan in hegtenis geneem word, maak
daardie persoon baie meer vatbaar
om saam te werk met die polisie. Hy
is uit sy natuurlike omgewing. --- Dit is korrek, u edele, dit is ook
ondersoek taktiek wat veral
gebruik word in die ondersoek van
ingewikkelde komplekse sake waar die bewys van die saak baie moeilik
is.
Ek wil vir u sê wat
hier gebeur het en dan u kommentaar vra daaroor, daar was ‘n
persoon wat ons na verwys in die saak as Titus,
Titus is een van die
persone wat hier omkring was en dat u geglo het hy is betrokke. Dit
is Titus Seboka. Daar is vasgestel dat
daar op ‘n ander
aangeleentheid ‘n lasbrief teen hom is. Daar is besluit om hom op
daardie lasbrief te arresteer wat aan hulle
dan die geleentheid sou
gee om hierdie aanvaarde ondersoekmetode toe te pas en dan ook die
ondervraging te doen op die Putco saak.
--- U edele, ek vra die hof
om verskoning, ek wil net seker maak ek verstaan die stelling korrek.
Is die stelling van u advokaat
Roux dat ek oor daardie inligting
beskik het? . . .
Wat ek eintliik wil weet
in die lig van die erkende ondersoekmetode, wat ek wil weet met u
ervaring sou dit vir u ‘n sinvolle wyse
van optrede gewees het as
daar nou ‘n lasbrief teen een van die verdagtes uit is op ‘n
ander saak om daardie lasbrief uit te
voer, juis omdat ‘n persoon
dan meer geneë is om met die waarheid vorendag te kom in daardie
omstandighede? --- Ja . . . Sou
dit vir u sinvol wees? --- Ja, u
edele.’
[38] A former high-ranking officer in
the SAPS, Mr Karel Johannes Britz, testified concerning this method.
The following are the relevant
passages from his evidence in the
court below:
‘
Step into that same
trap. Mnr Titus Seboka, dit was amper vir hulle
bingo
toe hulle weet daar is ‘n lasbrief, want dit is ‘n ou
ondersoekmetode dat as jy ‘n persoon op ‘n lasbrief onverwant kan
arresteer
en hy is weg uit sy warmte van sy omgewing, dan is hy baie
meer geneë om saam met die polisie te werk en te vertel wat gaan
aan.
--- U Edele, ja, u weet, die tipe ondersoeke wat ons gedoen het,
as elke beskuldigde ‘n lasbrief teen hom gehad het, maar dan sou
ons duisende meer sake opgelos het. Maar ons het net 48 uur om ‘n
ou aan te hou sonder ‘n lasbrief en dan moet jy hom óf aankla,
óf
laat loop. As ‘n man wat van moord beskuldig word op A ‘n
lasbrief teen hom het vir ‘n huisbraak op Brits en ons weet dit
voor die tyd, dan vang ons hom op die huisbraak van Brits en ons hou
hom aan en ons laat die borg opponeer en ons het ‘n lang tyd
om hom
te ondervra.
Inteendeel, in hierdie
saak doen hulle presies dieselfde. Hulle het vir Burger, en u weet
daarvan, op ‘n ander saak gearresteer
met die uitsluitlike doel om
hom in hierdie saak te ondervra. --- En aan my getuie …[tussenbei]
Hulle was oop daaroor en
hom vir 20 dae aangehou en hy was onskuldig bevind. --- En om hom as
getuie te maak teen hy en ‘n klomp
ander mense, dit is waar.
Ja. Saam met dit wil ek
vir u sê dat die staat het getuienis aangebied dat mnr Seboka, Titus
Seboka, wel by die werk was op 23 Mei
2000, mar ek wil dit vir u in
konteks plaas met ondersoekmetodes. Ek wil dit aan u stel, u kan
daarop antwoord dat dit baie selde
is dat die polisie ‘n persoon by
sy werk sal gaan arresteer en daar is goeie redes daarvoor. Hulle is,
hulle weet as hulle met
daardie onverwagse laatnag, 04:00 die oggend
kom, is daardie persoon soveel meer onverwags betrap en soveel meer
samewerkend. ---
U Edele, ja, ek sal vir u sê verskillende
ondersoekers verskil van mekaar. Ons ouens wat Moord en Roof
agtergrond het en wat goed
onderleg is in ondervragingsmetodes, dis
hoekom ons op Moord en Roof is, het nie maklik ‘n ou by sy werk
gaan vat waar almal sien,
almal vra vrae, alles nie. Ons het
uitgevind, ons het vir hoeveel dae ‘n verdagte se huis dopgehou,
dan sien ons hom in- en uitgaan,
maar ons besluit dis nie nou reg om
hom te vang nie. Dan doen ons dit nie.
Ek dink ook een van die
redes, en die polisie sê dit nie altyd graag nie, as hulle hom daar
– en on sweet van verdedigingskant
– as hulle hom by daardie werk
gaan haal voor die polisie ry, is die advokaat of die prokureur daar.
--- Hulle wag vir jou by die
aanklagkantoor, dis korrek.
Maar nie by sy huis so
maklik 04:00 die oggend nie. --- Dis korrek. Die regsmense werk nie
maklik in die nag nie, hulle kom eers
die volgende oggend uit!’
[39] South Africa is not a police
state. Section 36 of the Constitution is emphatic about the rights of
arrested, detained and accused
persons. These rights are not to be
flouted. The police methods described in the passages set out in the
preceding paragraphs reflect
an attitude reminiscent of the darker
days of South Africa’s history and has no place in our present
democratic order. It should
be dealt with decisively by the relevant
authorities.
[40] The second issue concerns the
undesirable fusion of private and police investigations. It appears
from the evidence referred
to earlier that AIN commanded the
resources of the SAPS when it saw fit. The police officials involved
readily complied. The SAPS
is not up for privatisation, nor for
direction by parties such as AIN. This too is a matter that should be
dealt with by the relevant
authorities.
[41] Lastly, it is not only that the
lines between the AIN and police investigations became blurred, but,
as set out above, police
officials acted in two capacities, even
going to the extent of doing AIN work whilst on police ‘sick
leave’. This is untenable
and should be investigated by the
relevant Ministry.
[42] In light of the conclusions set
out earlier, the following order is made:
1. The appeal against both
convictions is upheld and the convictions and related sentences are
set aside.
2. The cross-appeal by the State
against sentence is dismissed.
_________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: J G Cilliers SC
Instructed
by
Adv
J Cilliers Brooklyn Advocates Chambers Pretoria
Truter,
Crous & Wiggill Inc c/o Naudes Attorneys Bfn
For
Respondent: A J Fourie
A
P Wilsenach
Instructed
by
Director
of Public Prosecutions Pretoria
Director
of Public Prosecutions Bloemfontein
1
The third appellant, Mr Jaochim Prinsloo, was a police reservist at
the time and was acting as such.
2
Both the first and second appellants, in a written statement made on
24 May 2000 under the guidance of their attorney, said the
following:
‘
3.
On the morning of 22 May 2000 I was contacted by Henry Beukes to
assist him in an investigation concerning the theft of R1,2000
000-00 at Putco.
4.
I was requested to approach Sandy Botomane and Titus to question
them about the said theft.’
This
indicates a pre-planned interrogation of the deceased and Seboka and
not a spontaneous decision to seek his assistance to find
Seboka,
lending a lie to their evidence in court. In admissions made in
terms of
section 220
of the
Criminal Procedure Act 51 of 1977
Beukes
admitted, inter alia, that he had, on the morning of 22 May 2000,
instructed two policemen to confirm the addresses of Seboka
and the
deceased. It is clear from this that Beukes and subsequently the
appellants had both Seboka and the deceased in their sights.
3
The following appears in
R
v Blom
:
‘
In
reasoning by inference there are two cardinal rules of logic which
cannot be ignored:
(1)
The inference sought to be drawn must be consistent with all the
proved facts. If it is not, the inference cannot be drawn.
(2)
The proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn.
If
they do not exclude other reasonable inferences, then there must be
a doubt whether the inference sought to be drawn is correct.’
4
S v Levy
1967 (1) SA 347
(W) at 353A-C and J R L Milton,
South
African Criminal Law and Procedure
3 ed (1996) Vol II at 544-545.