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[2010] ZASCA 60
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Khoza and Others v S (121/09) [2010] ZASCA 60; 2010 (2) SACR 207 (SCA) (1 April 2010)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case No 121/09
In the matter between:
SIBUSISO
ERICK KHOZA 1
st
Appellant
AUGUSTINUS
KHOZA 2
nd
Appellant
DANIE
L
LUCKY MAKGAKA 3
rd
Appellant
EZEKIEL
OMPHILE MAYELA 4
th
Appellant
AUBREY
MOCHAKA 5
th
Appellant
and
THE STATE
Respondent
Neutral
citation
:
Khoza
v The State
(121/09)
[2010] ZASCA 61
(1 April 2010)
Coram
: Heher,
Mhlantla and Bosielo JJA
Heard
:
17
February 2010
Delivered
:
1
April
2010
Summary
: Criminal
Procedure â fair trial â robbery with aggravating circumstances â
unlawful possession of machine guns and ammunition
â manner in
which trial was conducted â presiding judge not biased against
accused â no irregularity committed â no failure
of justice
occurred â appellants' alibi defence correctly rejected â guilt
of appellants established beyond a reasonable doubt
â convictions
and sentences confirmed.
ORDER
____________________________________________________________
On appeal
from:
North Gauteng High Court (Pretoria) (Els J sitting as a court of
first instance):
1
.
The appeal against the convictions and sentences is dismissed.
2
. The
legal representatives of the appellants are disallowed from
recovering any costs relating to:
(a) the heads of argument in the
appeal in so far as such exceeded 60 pages;
(b) the application to amend the
heads of argument;
(c) the
settling of the affidavits of the appellants (and any consultations
related thereto) filed in support of the application referred
to in
(b); and
(d) the transcript of the
argument before Sapire AJ.
JUDGMENT
___________________________________________________________
MHLANTLA JA
(HEHER JA and BOSIELO JA concurring):
[1] The
appellants were convicted in the North Gauteng High Court, Pretoria
on various charges. The first appellant was convicted
of robbery with
aggravating circumstances and unlawful possession of machine guns. He
was sentenced to an effective term of 26 years'
imprisonment. The
other appellants were, in addition to the above offences, convicted
of unlawful possession of ammunition and malicious
injury to
property. An effective term of 35 years' imprisonment was imposed
on each of them. The appellants appeal to this court with the leave
of Sapire AJ (the trial judge having died) against their convictions
and sentences. There is also an application for leave to appeal
against the refusal by the trial judge to enter special entries in
terms of s 317 of the Criminal Procedure Act 51 of 1977 (the Act).
[2]
The
issues to be determined on appeal are:
(a) Whether
the
trial
court erred in refusing the application to note the special entries;
and if so,
(b) whether
the convictions and sentences
ought
to be set aside on the basis that the appellants' constitutional
rights to a fair trial were compromised by the manner in which
the
learned judge conducted the proceedings; if not,
(c) whether
the State established the guilt of the appellants, and in particular
,
the identity of the perpetrators of the offences beyond a reasonable
doubt; and
(d) whether
the judge committed any misdirection when he imposed the sentence
s.
[3] In order
to understand the issues it is necessary to set out an exposition of
the background facts. It is not in dispute that
two cash-in-transit
heists occurred. The first one, (the Mooinooi incident) took place at
Majakaneng Bridge, Mooinooi, in the district
of Brits on 11 November
2002 where members of the Fidelity Cash Management Services ('FCMS')
were attacked by armed men. One of the
employees was killed and a
substantial amount of money was stolen. The second incident, (the
Phokeng incident) occurred near Phokeng,
Rustenburg on 18 November
2002 where an armoured vehicle was rammed from the rear by a BMW
motor vehicle. The robbers fled with approximately
R200 000 in the
direction of Luka village, a suburb in the district of Phokeng which
is about seven kilometres from the scene of
the robbery.
[4] The
appellants and one Thabo David Nkosi were arrested as suspects a few
hours after the Phokeng robbery at various scenes at
Luka. According
to the police, they were found in possession of many firearms and a
substantial amount of money. They were eventually
charged on 20
counts in connection with these incidents. The trial commenced on 6
October 2005. The appellants pleaded not guilty
and raised alibi
defences. In amplification thereof, they stated that the police had
conspired against them; that the police had
released the actual
robbers and stolen some of the recovered money and then framed them
by planting the firearms and money on them.
[5] The State
tendered evidence in respect of the commission of the offences, the
circumstances leading to the arrest of the accused
and the discovery
of the exhibits, that is, the firearms, money and stolen motor
vehicles. The accused testified in their own defence.
After
conviction and sentence counsel for the third, fourth and fifth
appellants lodged an application for special entries to be
made on
the record on the ground that the proceedings were irregular. This
application was dismissed. I will deal with this aspect
later.
[6] The
evidence adduced on behalf of the State was as follows. Mr Sipho
Hlope testified that
on
11 November he was the driver of a cash van in the Mooinooi matter.
He and his passengers were attacked by occupants in a white
vehicle,
a Honda, who shot at them. The bullets struck their motor vehicle
causing it to overturn. He further testified that a second
vehicle
which had accompanied them was also attacked and one of their
colleagues was fatally injured.
[7] Captain
Petrus Hara, of the Local Criminal Record Centre, Brits, ('LCRC'),
who is employed as a draftsman, photographer and forensic
investigator testified in respect of the Mooinooi matter. His
evidence dealt with the collection of spent cartridges and their
transfer
to the ballistics section for comparison with a firearm
found in the house at Luka, Phokeng. He took photographs of the scene
and
compiled a photo-album which was handed in as exhibit D.
[
8]
Mr Stoop testified that he was employed by the FCMS. He was on duty
on 18 November and had been issued with a firearm, a .38.
He and his
colleague had been collecting money from their clients. They were
travelling to Boshoek when a BMW vehicle collided with
them from the
rear. Shots were fired and the armoured vehicle overturned. He lost
his firearm. He later saw a man with an AK firearm
standing in front
of a combi. The robbers stole money from the vehicle and drove away
in the direction of Luka. He identified his
firearm as exhibit 13.
[9] Ins
pector
Malebogo Manere, an official draftsman and photographer attached to
the LCRC, Rustenburg testified in respect of the Phokeng
incident. He
took photographs of the scene. He collected seven spent cartridges
and sent these for ballistics testing. He also took
photographs of
the scene of the arrest at Luka and exhibits collected there.
[10] Inspector
Petrus Myburgh of the LCRC, Rustenburg testified about the discovery
of two motor vehicles, a Nissan van and a BMW
as well as the cash
boxes found near these vehicles. These items were found immediately
after the robbery in the vicinity of the
Phokeng scene. His evidence
prima facie indicated that the vehicles were stolen. Myburgh further
testified that he collected exhibits
including two firearms at Luka.
[11] Mr
Michael
Kruger who was employed by FCMS, testified that upon arrival at the
Phokeng scene he recovered items belonging to his employer. His
evidence related to amounts stolen and recovered, the firearm stolen
during the Phokeng incident and to whom it had been issued.
He
identified the revolver, exhibit 13, as well as certain cash boxes
and bags belonging to FCMS.
[
12] Sergeant
Petlele, who was attached to the Local Highway Patrol Unit, testified
that he and his colleague, Inspector Ntoagae reacted
to radio reports
from a circling helicopter. They followed the direction of the
helicopter and were first on the scene at Luka. He
arrested the
first, third, fourth and fifth appellants. He testified that the
first appellant gave him the name of the third appellant
when asked
to identify himself. Petlele saw the fifth appellant rushing out of
the main house at Luka to an outside corrugated iron
shack. He and
Inspector Mosegu arrested that appellant who was trying to kick his
way out of the shack. They found cash in his back
pocket. He denied
the appellant's version that he had nothing to do with the charges
and had been arrested for no apparent reason
in the surrounding area
during a police swoop.
[13
]
Petlele thereafter arrested the third appellant in the flatlet
adjacent to the main house under very suspicious circumstances.
The
appellant had concealed himself under a bed and was not only lying on
top of money but some had been hidden in the front and
in the legs of
his trousers. Assisted by Inspector Monageng and Inspector de Waal,
he pulled the appellant out of the room. Petlele
saw no-one planting
money on the third appellant.
[14
] Petlele
arrested the fourth appellant after receiving information from
members of the public. He and a colleague found the appellant
on a
neighbouring premises in a long drop pit toilet kneeling behind the
door. A tracksuit top was immediately fished out of the
toilet pit
with âa lot of moneyâ wrapped in it. At the time of his arrest,
the appellant wore a T-shirt and tracksuit trouser
of the same colour
and with the same distinctive white stripe as on the tracksuit. He
denied the appellant's version that he was
simply urinating and had
no knowledge of the money or the top. Petlele testified that the
firearms were removed from the house after
the arrest of the
appellants. He did not see anyone taking the firearms into the house.
[15]
Inspector
Mosegu testified that he was in the company of Insp More and Petlele
when the fifth appellant was arrested in the shack.
He also denied
the appellant's version.
[16
] Ms
Moagi testified that she was inside the house when she saw an unknown
man. She locked the door and closed the window. Shortly
thereafter,
she discovered that the door was open and noticed a takkie track
leading into the house. She surmised that the person
must have kicked
the door open and entered. She could hear footsteps as if someone was
walking inside the ceiling. She called the
police. Mr Nkosi, accused
5 was arrested by the police in the roof.
[17
] Inspector
De Waal, who was attached to the SAPS Dog Unit, testified that on 18
November he and his partner Inspector Mogage reacted
to a radio alert
from the helicopter and went to the scene at Luka. They found several
police officers including Petlele. Three suspects
had already been
arrested. He went with Petlele to a certain house where they found
three persons, including the third appellant,
hiding underneath a
bed. He had money hidden under his clothes and in his trouser legs.
When they took him outside to the other suspects
and searched him,
they found more cash on him.
[18
] After
the arrest of the third appellant, De Waal joined Captain Hechter and
the team to search further. Bystanders pointed out a
house to which
another suspect had allegedly gone. There, he assisted Hechter to
arrest the fifth accused who was hiding inside the
ceiling in
proximity to money concealed in a peg bag and a pair of gloves.
During cross-examination De Waal denied an allegation
that he had
planted money on any of the appellants and that he ever carried
weapons into the house and planted these on the appellants.
[19
] Captain
Hechter, who was with the Highway Patrol Unit, corroborated De Waal's
evidence in respect of the arrest of the fifth accused.
He was also
present during the arrest of the fourth appellant, who was found
hiding inside the toilet. He was adamant that the appellant
never
used the toilet. He corroborated Petlele's evidence in regard to the
fourth appellant's arrest, the discovery of the jacket
and money in
the toilet pit and the fact that the jacket matched the pants worn by
him. He denied the planting of firearms on the
scene or on the
appellants.
[20]
Inspector
Monageng, who was attached to the Rustenburg CIS, was in the company
of Inspector Monamedi when they heard about the robbery
through radio
control. Acting on information from members of the public, he
arrested the second appellant who was running in front
of a nearby
house. Immediately after the arrest, he received a report from Mrs
Reetseng, the occupier of the house, that the suspect
had in fact put
a bag into a tub containing clothes that she had been washing. He
left the second appellant with Monamedi to investigate.
He retrieved
the bag which was soaked with water. He opened the bag in the
presence of Monamedi and the appellant and found that
it contained
cash.
[21
] Monageng
admitted making two statements on 2 December 2002 and 11 March 2004
respectively. These were admitted as exhibits S and
T respectively.
According to him, reservist constable Moyo remained in the car and
was not involved in the arrest of the appellant.
He and Monamedi
had, before they heard about the robbery, by chance met Moyo and
offered him a lift to the police station. Soon
thereafter, they
received the report about the robbery. He denied that Moyo had been
involved or knew of the planting of money or
firearms even before the
robbery at Phokeng had happened.
[22]
Inspector Monageng was also involved in the arrest of the third
appellant. He corroborated the evidence of Petlele and De
Waal.
[23]
Inspector Monamedi corroborated the evidence of Monageng with regard
to the arrest of the second appellant and the circumstances
surrounding the discovery of the bag with money in the bath.
[24] Mrs
Reetseng testified that she was at her home washing clothes in a tub
of water. She saw a man carrying a black bag running
through her
yard. When she asked him why he was running, he replied that there
was shooting taking place. He disappeared behind her
house. He
appeared later in the custody of the police but without the bag. She
reported to the police that the man had a bag and
must have thrown it
in the tub. The police retrieved it. She was unable to identify the
man. She corroborated the evidence of Monageng
and Monamedi about the
arrest and the discovery of the bag in a tub of water.
[25]
Reservist
constable Moyo testified that he was given a lift by Monageng. En
route they received a report about a robbery and proceeded
to the
scene. He, however, remained in the vehicle throughout and was not
involved in the arrest and search of the suspects. He denied
the
version of the third appellant. He knew nothing about the allegations
against him and denied ever meeting the appellant.
[26]
Inspector
Ratseane, the investigating officer, testified to rebut the
allegations of corruption and embezzlement of cash by him or
the
other officers. He denied being at the scene as he was on study
leave.
[27
] Inspector
Blignaut, a ballistics expert made two statements: exhibits W1, being
the Mooinooi ballistic report and W2, the Phokeng
report. Blignaut
identified exhibits 2, 8 and 10 fired at the Phokeng incident as
machine guns or rifles which had been found at
the premises at Luka.
Exhibits 8 and 10 were also fired at the Mooinooi incident.
[
28] I
turn to deal with the evidence adduced on behalf of the accused. As
stated earlier, all denied committing the offences and raised
alibi
defences.
[29] The
first appellant testified that he was a taxi owner. On 18 November he
was approached by a friend Ndlazi, to transport him
to Rustenburg for
a fee of R3000. He picked up Ndlazi and another unknown man. During
the journey more people boarded and eventually
the combi carried 15
passengers, all save for Ndlazi were unknown to him. He could not say
whether his co-accused were in the combi
or not. Nor did he pay
attention to what they were carrying. At some stage Ndlazi directed
him to go to a certain township. Ndlazi
and the group alighted while
he waited in the vehicle for Ndlazi. He was arrested by the police.
During cross-examination he conceded
that his mandate grew as they
were travelling. He had never received his money from Ndlazi despite
the fact that he was on bail throughout
the trial. His explanation
was that he could not trace Ndlazi. He further testified that he was
not assaulted by the police.
[30
] The
second appellant testified that he had gone to Luka to look for a
certain traditional healer's house. He enquired from one David
about
the direction. Whilst walking together, they saw a helicopter
hovering overhead and the next moment David fled. He stood for
a
while under a tree to establish what was happening. Later he was
approached by a motor vehicle. Two persons emerged and pointed
firearms at him. They assaulted and arrested him. The police looked
in vain for David. He heard them placing something in the boot.
He
was taken to a place where he met the other appellants for the first
time that day. There he saw three white men carrying bags
and big
firearms into the house. One of the police officers placed cash in
the trousers of the third appellant. The police tortured
him in the
presence of Sergeant van der Merwe to sign a document stating that
one of the bags with money belonged to him. He disputed
the evidence
of Mrs Reetseng.
[31
] The
third appellant, who stays in Rustenburg, testified that he went to
Luka on 18 November to visit his uncle Obed. They were in
the outside
rooms chatting when Ndlazi and his builders arrived. He had arranged
with him to build a wall at his uncle's property.
They had agreed on
a price of R4000 of which he had already paid Ndlazi a deposit of
R3000. They heard gun shots and ran inside the
bedroom. They hid
below the windows to avoid being struck by stray bullets. The police
came in whilst they were lying down and arrested
them. They were
taken outside where the third appellant met the other accused for the
first time. While lying on the ground, he saw
three white policemen
carrying firearms, boxes and bags into the house. One of the
policemen placed some of the money in his trousers
assisted by
Petlele and an Indian policeman. He was assaulted and ordered to sign
a form which stated that the money had been found
on him. His cousin
Itumeleng was also arrested.
[32] He
testified that he met Moyo in the police cells and that Moyo had told
him that he had been present at the scene with Monageng;
that Moyo
had seen two policemen placing money on him; that the police knew
about the Phokeng incident and had apprehended the actual
robbers
earlier on the same day but released them and that the police had
appropriated the money recovered for themselves. According
to the
appellant, Moyo refused to divulge the names of the policemen
involved for fear of reprisal. He requested the appellant not
to
divulge this information to anyone as he, Moyo, would deny
everything.
[33] During
cross-examination the appellant changed his version. Confronted by
the absence of building materials at the scene, he
said that Ndlazi
would not have commenced the building operations on that day as he
was still busy working elsewhere. He was, however,
unable to explain
why Ndlazi had brought builders if no work was to be done. According
to him, three police officers entered the
house twice, carrying three
boxes, a green box, a small green safe, 11 firearms and eight to ten
bags. He admitted that his cousin,
Itumeleng, refused to testify on
his behalf.
[34
] The
fourth appellant testified that on 18 November he left Johannesburg
for Rietspruit to meet a certain man known as Ramonso. The
appellant
was selling his motor vehicle and Ramonso had arranged a meeting with
a prospective buyer. He did not find Ramonso but
was advised that he
had gone to Mutaung General Dealer at Luka and would wait for the
appellant there. He proceeded to Luka. On
his way to the store he
needed to relieve himself and went into a certain house to use the
toilet. He was still busy urinating when
the police arrived and
arrested him. He disputed the State's evidence of the finding of the
jacket with money in the toilet pit.
He was taken to a certain house
where he met the other appellants for the first time. He was
assaulted at the police station and
forced to sign a document
admitting that money had been found on him. He did not see any bags
or firearms being carried into the
house. Ramonso and the person that
had granted him permission to use the toilet refused to testify on
his behalf.
[35
] Accused
5 did not lodge an appeal. He testified that he lived in Mamelodi,
Pretoria and had gone to Luka to buy a vehicle from a
certain Charles
Molate. He was found by the police hiding in the ceiling of Ms
Moagi's house as he was afraid of being struck by
stray bullets. He
stated that Hechter falsely implicated him and denied being in
possession of the peg bag.
[36
] The
fifth appellant testified that he operated a hair salon. On 18
November he left his home at Atteridgeville, Pretoria for Rustenburg
by taxi. He was on his way to Phokeng to meet one Christene to
negotiate the opening of a salon. Christene was, however, not home.
He was advised that she had gone to Luka and was provided with the
address. He was walking along the road looking for it when he
was
stopped by two men in a white vehicle. These people arrested him when
he told them that he stayed in Atteridgeville. He was taken
to a
house, where he met some of his co-accused for the first time. He
also saw the policemen carrying bags and big firearms into
the house
and plant money on the third appellant. He testified that he was
taken to the police station with his co-accused and that
he was not
assaulted. The police found an amount of R60 in his possession which
he acknowledged as his. They told him to sign a document
to that
effect. He complied. He denied the charges against him. During
cross-examination he denied kicking his way out of the shack
or
trying to escape. Christene was not prepared to testify on his
behalf.
[37
] The
trial judge found the appellants to be unsatisfactory witnesses. He
rejected their version on the basis that it was so improbable
and
beyond belief that it could not reasonably be true when seen in the
light of the totality of the evidence. The judge concluded
that there
was insufficient evidence to link the appellants to the Mooinooi
incident and the theft of the motor vehicles. They were
all acquitted
on the Mooinooi charges. Regarding the Phokeng incident, the judge
held that the appellants had participated in the
robbery and that
they were in possession of firearms and machine guns at the time.
Regarding the first appellant, whom the judge
found to be the
designated driver of the gang, the judge held that he was aware of
the presence of the machine guns. He accordingly
convicted the
appellants in respect of the offences as described in para 1 above.
[38
] I
propose to deal with the application for the special entries first.
In relation to each individual irregularity and the cumulative
effect, the appellants complained that they were deprived of a fair
trial of which protection both the common law and the constitution
assured them.
[39
] In
deciding whether the appellants received a fair trial, each case must
be considered on its own facts. In
Take
and Save Trading CC & others v Standard Bank of SA Ltd
,
1
Harms JA said:
'Everyone
is entitled to a fair trial and that includes the right to a hearing
before
an impartial adjudicator. This common-law right is now
constitutionally entrenched. Present a reasonable apprehension of
bias, the
judicial officer is duty bound to recuse him or herself.
The law in this regard is clear, having been the subject of recent
judgments
of both this Court and the Constitutional Court, and does
not require any restatement. It is nevertheless convenient for
present
purposes to quote the following extracts from a
Constitutional Court judgment for purposes of emphasis and because
they are particularly
germane to this case:
"
The
question is whether a reasonable, objective and informed person would
on the correct facts reasonably apprehend that the Judge
has not or
will not bring an impartial mind to bear on the adjudication of the
case, that is a mind open to persuasion by the evidence
and
submissions of counsel.
At
the same time, it must never be forgotten that an impartial Judge is
a fundamental prerequisite for a fair trial and a judicial
officer
should not hesitate to recuse herself or himself if there are
reasonable grounds on the part of the litigant for apprehending
that
the judicial officer, for whatever reasons, was not or will not be
impartial."
That is one side of
the coin. The other is this:
"A criminal
trial is not a game where one side is entitled to claim the benefit
of any omission or mistake made by the other
side, and a Judge's
position in a criminal trial is not merely that of an umpire to see
that the rules of the game are observed by
both sides. A Judge is an
administrator of justice, he is not merely a figure head, he has not
only to direct and control the proceedings
according to recognised
rules of procedure but to see that justice is done." . . . .
Fairness of court
proceedings requires of the trier to be actively involved in the
management of the trial, to control the proceedings,
to ensure that
public and private resources are not wasted, to point out when
evidence is irrelevant, and to refuse to listen to
irrelevant
evidence. A supine approach towards litigation by judicial officers
is not justifiable either in terms of the fair trial
requirement or
in the context of resources. . . .
A
balancing act by the judicial officer is required because there is a
thin dividing line between managing a trial and getting involved
in
the fray. Should the line on occasion be overstepped, it does not
mean that a recusal has to follow or the proceedings have to
be set
aside. If it is, the evidence can usually be reassessed on appeal,
taking into account the degree o
f
the trial court's aberration. In any event, an appeal
in
medias res
in the event of a refusal to recuse, although legally permissible, is
not available as a matter of right and it is usually not the
route to
follow because the balance of convenience more often than not
requires that the case be brought to a conclusion at the first
level
and the whole case then be appealed.'
[40
]
I turn to consider the circumstances relating to the special
entry in this matter. Counsel for the appellant has provided 75
quotations from the record which, he avers, support the contention
that the trial judge behaved in a biased, irregular and unfair
manner
during the trial. As indicated above, the application for a special
entry was launched after conviction and sentence on behalf
of the
third, fourth and fifth appellants. The terms of the entry were
particularised as follows (I omit irrelevant material):
(a)
The
court did not permit the third appellant to give evidence of all the
complaints which he had about the court's conduct of the
trial. As a
result of its ruling the fourth and fifth appellants also did not
give such evidence;
(b) The
court refused to allow full and/or reasonable cross-examination or
unfairly interrupted
or curtailed cross-examination;
(c) The court
exceeded the limits of reasonable and fair questioning;
(d) The court
demonstrated bias in favour of the State;
(e) The
court unfairly harassed or adopted an unduly overbearing manner to
counsel for the defence in the presentation of his case;
(f) The
court unfairly and persistently allowed state counsel to put
leading
or
material
questions to state witnesses and also did so himself;
(g) The
court failed to rule as inadmissible material documentary evidence
unfairly produced by the State during the trial;
(h) The court
unfairly prejudiced the case by describing the version which counsel
proposed to put to certain state witnesses;
(i) The court did
not permit proper re-examination of the accused.
[41] The trial
judge did not deliver a considered judgment. According to the record
he said:
'One
of the aspects mentioned is that I did not allow accused no 3 to give
his grievances. I put it to counsel more than once whether
he wanted
my recusal. Mr Paul Shapiro
[counsel for the accused concerned] refused to apply for my recusal,
so it therefore became irrelevant. Accordingly I find that this
application is a misuse of legal processes. I refuse to note a
special entry as set out in exhibit CCC.'
[42] There is
no dispute that objection was made to many of the 'irregularities'
during the trial. On most occasions the objections
were not upheld.
The record speaks for itself in this regard
.
Likewise the learned judge invited counsel to bring an application
for his recusal if his clients were dissatisfied with his conduct
of
the trial. Counsel, however, declined to do so. In many cases such as
the present an election might fairly be treated by the trial
court or
a court of appeal as dispositive of a right to rely thereafter on
irregularities. But in a long criminal trial for the commencement
of
which the accused may have waited years, I think that a court should
be very slow to find that an election to pursue the trial
to its
conclusion in the face of harassment or other unfair conduct of the
court, without applying for recusal, is consistent only
with a waiver
of the rights of the accused to raise such irregularities by means of
special entry or in any other permissible form.
Were it otherwise,
the effect would be to allow the unfairness to prevail in the face of
a clear constitutional right to the contrary.
Moreover, if an
irregularity of itself or cumulatively with other irregularities, is
such as to render the trial unfair it would,
in my view, be against
public policy to uphold any election amounting to a waiver of an
accused's right to rely on such unfairness.
[43] That
being so, and the trial in ques
tion
possessing the characteristics I have identified, I am of the view
that the learned judge should have looked beyond the refusal
to apply
for his recusal as a ground to answer the application.
[44] The
grounds open to a trial judge in refusing to no
te
a special entry are restricted: that the application is not made bona
fide or that it is frivolous or absurd or that the granting
of the
application would be an abuse of the process of the court. There is a
further ground not expressly mentioned in s 317(1) but
inherent in
the section: when the irregularity appears from the record itself the
special entry procedure, whilst convenient, may
be unnecessary
because of the wide powers of appeal enjoyed by the SCA in terms of s
316 of the Act.
2
[45] In an
application for leave to appeal against the refusal to note a special
entry
,
it is necessary for an applicant to show a reasonable prospect of
success on appeal whether the irregularity appears ex facie the
record or not.
3
[46] Even if
the court considers that the trial of the appellants was rendered
unfair by the presence of an irregu
larity
that is not enough to vitiate the proceedings unless the irregularity
is per se such as to have that effect or there has been
a failure of
justice in that the evidence (and credibility findings, if any)
unaffected by the irregularity was insufficient to prove
the guilt
beyond a reasonable doubt.
4
In the last mentioned regard, s 322(1) of the Act, it seems to me,
provides a reasonable and justifiable limitation on the
constitutional
right to a fair trial. No argument was addressed to us
on this matter but counsel did not submit otherwise. The
Constitutional Court
has held that the meaning of the concept
'failure of justice' in s 322(1), must be understood to raise the
question whether the
alleged irregularity stated in the special entry
has led to an unfair trial.
5
[47] I deal
now with
certain
of the individual grounds of irregularity which were raised in the
application. It will be necessary in certain instances
to set out the
relevant extract from the record:
(a) The
refusal to allow accused 3 to give evidence about his complaints
concerning the conduct of the
trial
judge.
The relevant
passage appears towards the end of the evidence
-in-chief
of the third appellant. For convenience of understanding I set it out
in full:
'Examination
by Mr Shapiro
(continued):
Right, now Mr Makgaba, there are certain observations which you made
to me and which you said you wish to place on record.
Can you do that
now, please? â Well we heard here in court that the presiding
officer, the judge, provided the transcripts of the
trial, we then
made a request that photocopies of the transcript be made available
to our legal
representative.
We
also
requested the legal representatives to make such transcripts
available to us. From the transcripts we observed that many issues
came up, we realised that the judge who is presiding over our case is
siding with the prosecution, he is against us.
Court
:
Mr Shapiro, where is this going to? Are you lodging [indistinct].
Mr
Shapiro
:
That is what they say.
Court
:
Are you lodging an application for my recusal?
Mr
Shapiro: No, M'Lord, I am
[intervenes].
Court: Then
I am not prepared to listen to this any further. An issue lodge
[intervenes].
M
r
Shapiro: M'Lord, these people have given me . . . , they give me
notes, I cannot tell you, and they said they wanted to place it
on
record, I said to them there is a special procedure which we can add
on, we can make an entry if you want afterwards, but they
say they
want to place it on record, it is this accused and there is another
accused, and they said they want to place this; these
are these
observations. I do not know, M'Lord.
C
ourt:
I am just asking you, you are not making an application for my
recusal?
Mr
Shapiro: No, certainly not.
Court: Thank
you. Yes, then you can go on â There are some numerous examples
which I can quote to proof this point, but I will not
be able to able
to proof all of them. At the beginning of the trial the judge asked
Mr Shapiro whether the defence case is . .
. whether the police
knew about the robbery and whether they took the money and the
firearms and tried to dump them on the accused
before court. Mr
Shapiro responded by saying that yes, that is the defence case, the
judge says that does not make sense. That was
an indication to us
that the judge has already decided on this matter before it even
started. We are not happy about that fact. In
support of that fact,
the judge told Mr Shapiro on many occasions that "you are
wasting my time" and he mentioned or uttered
those words on
numerous occasions, and that happened each time Mr Shapiro was
cross-examining a witness who found it difficult to
can answer or
respond to the question. The other reason was that the judge was also
shouting and he was also harsh. Besides that
there are numerous other
[indistinct] and I cannot mention them all.
Is
there anything else? â There are numerous other examples but I
cannot mention them all. Yes there is something else. Mr Shapiro
complained
that
Mr De Meillon is giving the statements to him, new statements as the
case is proceeding and the judge said there was nothing
he can do. At
the stage when Mr De Meillon wanted to give Mr Shapiro new statements
the judge interfered and said Mr De Meillon must
first give those
statements to the court. I do not know for what reason must
statements be first given to the court before they are
given to Mr
Shapiro. Mr Shapiro must be the first to see the statements before
the court sees the statements, so that if there is
a mistake he can
be in a position to can help the court. Another example in support of
that fact, when Mr Shapiro was questioning
Mr Monageng about the
arrest of accused 2, the court of the judge appeared to be impatient,
at certain times Mr Shapiro objected
or complained about that.
[Court]
Listen
Mr Shapiro, if you are not going to apply for recusal [intervenes].
Mr
Shapiro: I am not, M'Lord.
C
ourt: I
am going to stop this evidence at this point. If it is . . . .
[intervenes].
Mr
Shapiro: [indistinct] the accused, M'Lord.
C
ourt:
Well, then I am not going to listen to this any further.
M
r
Shapiro: I want the matter to be absolutely clear.
Court:
Yes, Anything on the merits further, Mr Shapiro?'
[48] It
appears that the learned judge properly allowed some leeway in order
to ensure that he understood the nature and direction
of the
evidence. He was, in my view, right to rule against its continuation.
The evidence which an accu
sed
person may give during a trial may be directed at the merits of the
charge against him or her or towards mitigation of sentence.
In
either event a judge has a duty to take any evidence which bears on
those issues and he or she will be wise to exercise a measure
of
leniency in determining the proper limits. But if the sole purpose is
to draw attention to matters already apparent ex facie the
record
such evidence is superfluous and irrelevant. If, in addition, the
merits of the defence are not implicated, then evidence
is likewise,
irrelevant to the question which the court is required to judge. But
if it nevertheless needs to be said, the accused's
evidence is
neither the place nor the time to say it, nor is it the correct means
of placing it before the court. If counsel deems
a recusal
application inappropriate, the procedure for a special entry is open
to him. All these considerations apply to the first
alleged
irregularity. The refusal to allow the evidence of irregularity, did
not impinge on the fairness of the trial and no failure
of justice
flowed from it.
(b)
The
refusal to allow full or reasonable cross-examination; the unfair
interruption or curtailment of cross-examination.
[49]
The
principles underpinning the freedom of cross-examination of witnesses
are well established.
6
Counsel for the appellant submitted that the learned judge:
(a) Persistently and unfairly
interrupted counsel's cross-examination;
(b) o
ften
the interruptions were made in what can only be described, with
respect, as an 'extremely rude, confrontational and off-putting
manner';
(c)
'answered
questions' put to State witnesses in cross-examination by unfairly
and irregularly interrupting cross-examination and by
way of
'blatantly leading questions'.
[
50] I
readily accept that the record shows that the judge was on occasion
impatient and abrupt. But it is even clearer that he was
closely
attentive to the questions put by counsel and determined to ensure
that he clearly understood the purpose. To this end, the
judge asked
questions in clarification on frequent occasions. Many of the
illustrations relied on by counsel arise from such occasions.
A
quotation from counsel's heads of argument will serve as an example
of the pettiness and the irrelevance of many such complaints.
'The
eighth
quotation revolves around the following: the second appellant's
defence was that he was standing under a tree alongside the road
and
the car in which the witness who he believes arrested him was
travelling, almost ran him over. The following exchange in regard
to
this occurs:
Court â Is the
tree in the gravel road?
Counsel
â Yes.
Court â In the
centre of the gravel road or where? Or next to the gravel road.
Counsel â It is
alongside the gravel road, yes. He was standing under the tree.
Court â I
understand that but I am asking you is your instructions that the
tree is in the gravel road?
Viii
b
â Given the previous answer by counsel to the court's question,
with respect this surely amounts to pure harassment.
lxa
â The ninth quotation â counsel: Would you agree that there was a
gravel road running past the house?
lx
b
â Once again the court with respect unfairly interrupts the
cross-examination.
Court â Let us put
it this way, forget the gravel. Is there a road next to this house.
Counsel:
M'Lord, he was going to answer me. I wanted that answer.
lx
c
â The learned judge with respect is unfairly undermining the
cross-examination and defeating its purpose.'
[51
]
In this context the learned judge was inclined to make comments to
counsel such as 'You are really wasting my time' or similar
expressions of impatience. For example, counsel introduced two
statements by Inspector Monageng, exhibits S and T. He had initially
stated that he had found three suspects at the premises and arrested
them. In the second statement he changed the number to two.
During
the exchange the judge commented that counsel was wasting his time:
'Mr
Shapiro: Now let me ask you the question. When did you amend this
affida
vit
by changing three to two? â During the time whilst I was busy
writing the statement.'
Mr Shapiro did not pursue this
line of questioning but moved on to the next aspect, after having
sought that these statements be admitted.
The judge then said:
'Court
:
You have now handed up exhibits S and T.
Mr Shapiro: Yes.
Court: You did not
ask the witness a single thing on exhibit T. You have asked him some
questions in respect of aspects which he
did not testify to in his
evidence-in-chief as far as exhibit S is concerned. Why did you ask
me to take these exhibits into the
record?
Mr Shapiro: Because
in exhibit T there was a statement there that the, a suspect was
spotted by the helicopter and I was going to
ask that and then I
thought better of it.
Court: Please, Mr
Shapiro, in future, do not overload the record with unnecessary
documentation. If there is no reason for handing
in a statement, I do
not want statements handed in.'
The remark by the judge was, in
my view, appropriate under the circumstances.
[
52] Counsel
described such remarks as 'rude, off-putting, disconcerting and
blatantly unfair'. What must be borne in mind is that
the counsel in
question has behind him many years in practice, he is no shrinking
violet, and the record provides no evidence that
his
cross-examination was adversely affected or curtailed by the attitude
of the court. In fairness to the judge, he was also pushed
to the
limit by counsel's apparent lack of insight into relevance and his
failure to understand the operation of the hearsay rule.
The record
indicates much jostling and repartee between the judge and counsel.
Although the judge may have been hasty and was troubled
by counsel's
antics, he was very reasonable with him. The judge's approach was to
ensure that essential issues remained succinct.
Collateral or
irrelevant issues were excluded and repetitive evidence was
curtailed.
[53] A further
example of counsel's seeming obtuseness may be seen in the following:
in order to establish contradictions counsel
made much in
cross-examination of statements of witnesses furnished by the
prosecution (often with little regard to materiality).
The judge
told him to hand the statements in without the necessity of reading
each into the record (a common and acceptable practice)
and he said
he would read them himself. Later when counsel attempted to put in
statements, the judge said:
'
No,
no. In my court I do not take cognisance of statements not put to the
witness and which he has not had an opportunity to explain.'
Counselâs
response was that the
court had told him that he did not need to waste its time by reading
it:
'
You
told me that specifically, you are going to take cognisance of what
is in the statement.
The
judge then said In future I want an explanation from you when you
want to put a statement to a witness on what basis you want
to put
the statement in.'
[54
]
Counsel described this ruling as âblatantly unfair and
irregular.â I consider it neither: it was a fair response to such
obtuseness as counsel plainly did not appreciate the elementary
difference between the unnecessary recitation of the full contents
of
a statement and the essential requirement of taking up with a witness
in cross-examination those aspects of the statement upon
which
counsel would rely to criticise the witness. The record shows that
the judge never informed counsel that the judge would himself
seek
out such contradictions.
[55
]
Counsel cited as a further example of unfairness in interrupting
his cross-examination a question by the judge:
'
Where
are you going now?
'
This was said
to
be 'restricting the latitude of cross-examination, securely muzzling
counsel', 'creating an atmosphere of friction', 'harassing
counsel
and diverting counsel from the point he was pursuing'. This is all
posturing. The point of counselâs questions (relating
to the fact
that the helicopter landed in a large open field) was entirely
obscure. The question was reasonable. The reply (to the
defence case)
did not as the court remarked, 'make sense' but counsel was
nevertheless permitted to pursue this line (without noticeable
advantage to his clients) of questioning.
[56
]
A further example of an objection of a different kind is as
follows:
'The
witness Petlele says:
"
The
men referred to that entered into the
shack
were at that stage uncontrollable."
Counsel:
You see according to the police they had enough weapons there to
start a small war and yet none of them seems to have f
ired
any shots.'
At that stage the court
interrupts the cross-examination to say
'
Isnât
that
argument?'
[57
]
Counsel described his approach as 'perfectly legitimate
cross-examination' and the defence was muzzled by the interruption. I
have no doubt the judge was right. There was no dispute that many
firearms were found at the scene but that none was fired. It was
not
appropriate for this witness to speculate as to why that was so, but
for counsel to raise at the end of the trial if the evidence
merited
the drawing of an inference. Counsel did not explain to this court
what advantage he could have obtained had the question
been pursued.
In fact counsel did not even debate the validity of the judgeâs
question to him. Els J did not however leave the
matter there but
asked the witness pertinently:
'
Did
they have
any
arms at that stage? Weapons?'
The reply was
:
'No,
they did not.'
This highlights the lack of
substance in allowing the line of cross-examination; the reply was
also not in conflict with the evidence
of any of the accused.
(c)
Mr
Shapiro was threatened by the judge
[
58] Counsel
for the defence put the proposition that State counsel was involved
in illegally paying witnesses to testify against the
accused. This
was in terms of his instructions, albeit no evidence was tendered to
support such a proposition. The judge then said:
'You must not make
insinuations unless you have a basis therefor, regardless what your
instructions are. Are you suggesting that Mr
De Meillon is involved
in this conspiracy? Are you making that suggestion? I want that
specifically put on record. Are you suggesting
Mr De Meillon is
instigating witnesses to give false evidence so that he could
implicate the accused? Is that what you are saying?
Mr Shapiro: I am not
going that far but I say I am . . . (intervenes)
Court: But that is
what you insinuated Mr Shapiro, you insinuated by your questions and
it is a dangerous insinuation to make and
I would suggest that Mr De
Meillon takes this matter further.'
[59
] Counsel
for the defence contended that the judge's conduct was improper when
he threatened him. This submission cannot in my view
prevail. Counsel
for the appellant did not have a basis to put that allegation. He did
not have the facts from Itumeleng, said to
be the source, who refused
to testify. The defence thus had no factual basis for implicating and
accusing counsel for the State of
conspiracy. In the result, the
judge was justified to be upset with Mr Shapiro.
(d)
The
court failed to rule as inadmissible material documentary evidence
unfairly produced by the State during the trial.
[60
]
The State produced statements of witnesses during the course of
the trial which had not previously been made available to the
defence. These included one by Petlele and two by a ballistics
expert. Counsel objected, for obvious and acceptable reasons his
clients
did not want to delay the trial by further postponements. It
is clear from the record that the judge was not averse to
accommodating
counsel to a lesser extent. He was however not prepared
to exclude reliance on the evidence. The interests of justice
required a
balance to be struck. Counsel, however, made no attempt to
compromise but simply applied for special entries to be noted against
reliance on the evidence. But the irregularity did not reside in that
ruling but rather in the failure to afford the defence adequate
chance to prepare (if such was the effect), an opportunity which the
defence did not itself seek.
[61
]
I do not feel it necessary to multiply examples of the passages
said to evidence irregularities. I have read and considered every
passage in the context in which it appears together with counselâs
submissions. In many instances the last-mentioned are backed
up by
affidavits of the appellants who voice their shock, surprise,
disgust, disillusionment and despair at what they describe as
rude,
unfair, biased, aggressive and interventionist behaviour of the trial
judge. As is apparent from the few representative examples
to which I
have referred, many of the âirregularitiesâ were not such as to
sustain the pejorative colour that counsel and the
appellants seek to
attach to them. I am satisfied that the learned judge was not biased
against the accused nor was his conduct of
the proceedings such as to
provoke a suspicion of bias. The record seen in its totality contains
many instances where counsel was
given his head without interruption;
when he was interrupted or stopped, there were acceptable grounds for
doing so.
[62
] To
the extent the judge expressed incredulity at the substance of the
defence, the comment was probably unnecessary but it was entirely
provisional in context, not unjustified and it was as well that
counsel be aware of the problem. When it came to the final assessment
of the probabilities the judge demonstrated an ability to conduct an
objective analysis which depended on the facts. That he applied
his
mind to the real issues is borne out by the fact that in the end he
acquitted the appellants on the majority of the charges.
He treated
the first appellant differently from the others. In my view, this is
the hallmark of an open mind. It is evident that
the judge weighed
and evaluated all the evidence. His judgment, despite the problems
alluded to, reflects a fair balance.
Nor do I find
reason to uphold counselâs contention that he was deterred from
pursuing relevant lines of cross-examination by any
intervention from
the court. The judgeâs brusqueness with counsel may have exceeded
what was strictly necessary on
a
few occasions, but I find nothing on the record to suggest that his
impatience reflected on the accused themselves or the merits
of their
defence.
[6
3]
I will however assume, hypothetically, that the judge had not
interrupted counsel or cut short his cross-examination in any
respect, and that the witnesses had been left to their own devices
rather than assisted by leading questions. Would the outcome of
the
trial still have been the same, ie, a finding beyond a reasonable
doubt?
[64
]
I have no doubt it would. The grossly improbable substance of the
overall defence would have been no wit altered or enhanced.
The
individual lack of credibility attaching to each accused would have
remained. Nothing that counsel could or would have put to
the
witnesses could have changed certain controlling realities: the
presence of each in the same place without an acceptable explanation
for their association; their close proximity to money and arms which
three hours previously were taken from or used in the Phokeng
robbery; and the circumstances of the arrest of each of the
appellants. Unless there was a reasonable possibility at the end of
the
case that the police had deliberately and collusively framed the
accused, a conviction inevitably had to follow. No amount of
unimpeded
cross-examination of state witnesses, or indeed of calling
witnesses which the State left out of its selection would
realistically
have conduced to that end.
[65
] That
being so, even allowing the existence of the irregularities (other
than bias which can be ruled out), no failure of justice
occurred and
the reliance on the irregularities cannot succeed. It cannot be that
the appellants' contention is that the acquittals
were unfair or
resulted in a failure of justice or were not according to law. The
appeal based on the alleged irregularities set
forth in the special
entry must fail. There is accordingly no basis to set the proceedings
of the court below aside.
[
66] The
next leg of the enquiry relates to the appeal against conviction
based on the merits. Counsel inter alia, submitted that the
court a
quo misdirected itself when it failed to draw an adverse inference
against the State for not calling certain witnesses and
for admitting
hearsay evidence. He also contended that the court had misdirected
itself when evaluating the evidence.
[
67] In
regard to the first ground, he submitted that Insp Ngquko should have
testified to rebut the allegations of conspiracy, despite
the fact
that Itumeleng, the alleged source of such information, had refused
to testify. In my view, this contention is ill-founded.
The questions
that have to be asked is what worth did this allegation carry if the
source did not testify? How does the evidence
become admissible if
Itumeleng does not testify? The answer is obvious â no weight can
be attached to such an allegation. It is
trite that the State or
defence cannot be expected to rebut allegations which have no basis.
There was no need for Insp Ngquko to
testify if there was no evidence
to rebut. Absent the evidence of Itumeleng, the veracity of the
allegations cannot be determined.
[
68] Counsel
submitted that More who had arrested the fifth appellant, Supt Diale
who took charge of the scene where the appellants
were arrested and
Insp Mailate who had received the bag with money should have
testified to either rebut the allegations of conspiracy
or
corroborate the evidence of other State witnesses.
[
69] More
did not feature on the list of witnesses and therefore the defence
could have called him if they wanted to. More was assisted
by Petlele
and Mosengu and these witnesses testified about the fifth appellant's
arrest. It was therefore not necessary to call More
to repeat the
evidence relating to the arrest of the appellant. It has to be borne
in mind that the State is entitled to decide which
witnesses are
necessary to be called. An adverse inference can only be drawn if
there is some reason to believe that the witness
who has not been
called could contradict the State's case in that regard. In this case
the calling of additional witnesses is undermined
by the defence
version. There is no possibility that the witnesses who were not
called would sustain the defence version.
[
70] It
was further submitted that the police officer depicted in exhibit H
at photo 49 should have testified to explain what he was
doing when
the photograph was taken. In my view the failure of this officer to
testify is not fatal to the State case. It is obvious
that he was
merely illustrating the presence of money in the pocket. The cash had
been slightly pulled out of the pocket to enable
the photographer to
take a photo thereof. That is not uncommon conduct nor is it
irregular. The failure to call the police officer
concerned does not
warrant a finding of an adverse inference against the State.
[
71] Counsel
further contended that the police had no information about the
whereabouts of the suspects save for the existence of a
white combi.
He argued that the evidence of the officials in the helicopter was
crucial as any information recorded by the police
on the ground from
the helicopter was hearsay. This submission is without substance.
Petlele testified that the helicopter led them
to the white combi and
that they followed the direction of the helicopter. He never said
that these officials told him anything.
He made his personal
observations and effected the arrests. Monageng also testified that
the helicopter led them to the accused.
That in my view is not
hearsay evidence. It is a fact and does not prove the truth of
whatever Monageng or Petlele was told from
the air.
[
72] In
regard to the second ground, counsel submitted that the judge
misdirected himself when he readily accepted the evidence of
the
State witnesses and in particular, the evidence of Moyo, Petlele,
Monageng, Mrs Reetseng and Blignaut and that he erred when
he
rejected the appellants' version. The correct approach is to consider
the evidence holistically, weigh up all the elements which
point
towards the guilt of the accused against all those which are
indicative of his innocence, taking proper account of inherent
strengths and weaknesses, probabilities and improbabilities on both
sides and having done so, to decide whether the balance weighs
so
heavily in favour of the State as to exclude any reasonable doubt
about an accused's guilt.
7
The court must look at the reliability and credibility of the
witnesses and consider if any of them had a motive to falsely
implicate
the appellants.
[
73] Counsel
submitted that the judge should have been critical of Moyo's motives
when he attended court on numerous days when he was
not required to
do so. There is nothing strange in Moyo's conduct. He had not made a
witness statement and was called without prior
consultation by the
State to rebut the allegations. He denied any knowledge under oath of
the allegation of conspiracy. In the absence
of a previous statement,
it is far-fetched to suggest that Moyo changed his version when he
testified.
[74] In
regard to Petlele it was contended that he supplemented his statement
and only mentioned the fact that some money was found
in the jacket
pocket in the second statement. In
S
v Bruinders & 'n ander
8
the court held:
'In order to
discredit a State witness on the basis of his affidavit, it was still
necessary that there had to be a material deviation
by the witness
from his affidavit, before any negative inference could be drawn. The
purpose of an affidavit was to obtain the details
of an offence, so
that it could be decided whether a prosecution should be instituted
against the accused. It was not the purpose
of such an affidavit to
anticipate the witness's evidence in court, and it was absurd to
expect of a witness to furnish precisely
the same account in his
statement as he would in his evidence in open court.'
[
75] There
is no material discrepancy between the two statements. These are just
statements made at different times. The court must
consider Petlele's
independent observation. What matters is what he saw at the scene and
his reliability as a witness. Hechter corroborated
Petlele's evidence
in regard to the discovery of the jacket. In my view no improper
motive can be attributed to Petlele for failing
to mention this
aspect in his first statement. In regard to Monageng, counsel for the
appellant argued that Monageng never mentioned
in his statement that
the second appellant was running. It later transpired that counsel
was in fact misleading the court as the
reading of the statement
revealed that Monageng had in fact mentioned this aspect.
[
76] Counsel
submitted that no reliance could be placed on Mrs Reetsengâs
testimony because she never saw the second appellant dropping
the bag
in the water. I do not agree with this submission. Mrs Reetseng was
an independent witness who had seen the appellant proceeding
towards
the bath carrying a bag. She later saw him in the custody of the
police without the bag. This was subsequently retrieved
by the police
from the bath. Mrs Reetseng was washing the clothes and never had a
bag in her possession. The question to be asked
is how the bag ended
up in the bath? What other inference could be drawn from the facts
but that it was put there by the second appellant
when he realised
that the police were chasing him and that he did so to get rid of the
incriminating evidence.
[
77] Counsel
further argued that the evidence of Blignaut should have been
rejected as the seal in regard to the exhibits found at
Luka and
Phokeng was unreadable. This argument has no merit and is rejected.
It has to be borne in mind that the purpose of the seal
is to provide
clear evidence that the exhibits were not tampered with. The case
reference number (CAS) of the police station, on
the other hand,
identifies the place where the exhibits came from and this was
legible. The evidence of Blignaut was that the bullets
came from the
guns used at the scene. In any event the defence version was that
they had no knowledge of the source of the firearms
as they had been
planted on them.
[78
]
In the result there is nothing exaggerated in the evidence of these
witnesses. No valid criticism can be levelled at them. The
trial
court did not commit any misdirection when it accepted the evidence
of the State witnesses. There is accordingly no basis to
reject same.
[
79] Turning
to the defence version, I am of the view that the alibi defences were
flawed and were correctly rejected. The first appellant
had not
proffered an exculpatory explanation to the police at the time of his
arrest at Luka. It was submitted that the judge erred
in drawing an
adverse inference against the first appellant for his failure to
disclose an alibi prior to the trial. The right to
remain silent is a
right that is constitutionally protected. In
S
v Thebus & another
,
9
Goldstone J et O'Regan J:
'An accused person
needs to understand the consequences of remaining silent. If the
warning does not inform the accused that remaining
silent may have
adverse consequences for the accused, the right to silence as
understood in our Constitution will be breached.
Moreover,
in many cases, the fact of the warning itself will render the silence
by the accused ambiguous. It will not be clear whether
the accused
remained silent because he or she is relying on the right to remain
silent, or for another reason, whether legitimate
or not. To the
extent that the silence is ambiguous, of course, it will have little
value in the process of inferential reasoning,
especially where the
guilt must be proved beyond a reasonable doubt.'
[8
0] The
argument does not take the appellant's case any further because his
alibi is patently false and highly improbable. He wishes
the court to
believe that he went to Luka from Tsakane, Brakpan on business, yet
never received his fee of R3000 even after his release
on bail. It
is highly unlikely and improbable that a taxi owner would not ensure
payment for the trip and allow himself to be led
around collecting
unplanned for passengers. He pretended not to know his co-accused,
yet provided a false name to Petlele upon his
arrest, which turned
out to be the third appellant's name. It is significant that he would
have known the third appellant's name
when he had never met him
before their arrest. The only inference that can be drawn is that the
first appellant was part of the planning
of the Phokeng robbery.
[
81]
The third appellant's version about the building of the wall did not
make sense. Initially, these people had arrived to commence
the
building operations. When confronted about the absence of building
material, he changed his version and stated that Ndlazi who
co-incidentally had been brought there by the first appellant, had
come to discuss certain issues with him. If he had come to discuss
some issues, why would he bring ten builders along? Furthermore he
had paid Ndlazi who had 10 or more builders a sum of R4000 from
which
Ndlazi would have to pay the first appellant R3000. This would have
left Ndlazi with a paltry R1000 for his profit and to pay
his
workers.
[
82] The
other appellants went to Luka to meet certain persons. The second
appellant went to Luka to meet a traditional healer. The
fourth
appellant also travelled from Johannesburg to meet Ramonso about a
possible sale of his vehicle. Ramonso decided not to wait
for him but
went to Luka. The fifth appellant travelled from Pretoria to meet
Christene. She too did not to wait for him but went
to Luka. Accused
5 also went to Luka to meet Charles to buy a vehicle. The meetings
never materialised. All the appellants, for
some strange reasons
went to Luka on the day of the incident. The question to be asked is
was it a mere co-incidence that the appellants
happened to be there?
In my view, it would be a remarkable co-incidence if they were not
involved in the robbery. The linking of
the second appellant to the
wet bag with money is conclusive evidence that he participated in the
Phokeng robbery.
[83] All
the defence witnesses refused to testify and no explanation was given
therefor. One does not know what they would have
told the court.
Would they have corroborated the appellants' version or given a
totally different version? One can only assume, in
the absence of any
other explanation that they would not have supported the appellants.
[84
] The
defence version, in my view, does not make sense and is highly
improbable. There was no need for the police to seek other persons
to
falsely accuse them of the robbery. They could have appropriated the
money and charged the real robbers. To plan and execute the
framing
of innocent persons with cash and exhibits in broad daylight within
three hours of the robbery in Phokeng is if not impossible,
at least
unlikely in a high degree. Not only would all the police
participants, who came from different units, have to agree, they
would have had to plan and prepare for a future uncertain event and
be at the right place simultaneously when the robbery and the
arrests
were carried out. Members of the public and independent witnesses
like Mrs Reetseng and Ms Moagi would have had to be removed
or
convinced that what they witnessed was something else. It is equally
strange that the police who were, according to the appellants,
hell-bent on falsely implicating the appellants, treated the first
and fifth appellants differently from the others. They did not
assault them nor did they plant any money on them.
[
85] In
my view, there was overwhelming evidence against the appellants in
regard to the commission of the offences at Phokeng.
Their version
is not supported by any objective facts and is highly improbable. The
proven facts lead to only one reasonable inference
that the
appellants were involved in the armed robbery at Phokeng. They were
thus correctly convicted. It follows that the appeal
against the
convictions must fail.
[
86] It
therefore remains for me to consider the appeal against sentence. The
imposition of sentence is a matter falling pre-eminently
within the
judicial discretion of the trial court. The test for interference by
an appeal court is whether the sentence imposed by
the trial court is
vitiated by irregularity or misdirection or is disturbingly
inappropriate.
10
The trial court imposed the following sentence in respect of the
first appellant:
(a) 21 years' imprisonment for
robbery; and
(b) 15 years' imprisonment for
the unlawful possession of machine guns.
The court took into account the
cumulative effect of such sentences and accordingly ordered a period
of ten years to run concurrently
with the sentence in respect of the
robbery charge. The effective sentence is thus 26 years'
imprisonment.
[
87] The
other appellants were sentenced as follows:
(a) The court
treated the charges of robbery and malicious injury to property as
one and imposed a period of 23 years' imprisonment.
(b) 15 years' imprisonment in
regard to the unlawful possession of machine guns; and
(c) 5 years' imprisonment for
unlawful possession of ammunition. The court ordered a period of
eight years in respect of the conviction
for unlawful possession of
machine guns to run concurrently with the sentence imposed for
robbery. They were thus sentenced to an
effective term of 35 years'
imprisonment.
[
88] Part
II of Schedule 2 of the
Criminal Law Amendment Act 105 of 1997
prescribes in the case of first offenders, a minimum sentence of 15
years' imprisonment for certain offences, inter alia, robbery
with
aggravating circumstances and unlawful possession of machine guns or
rifles. A court may impose a lesser sentence if there are
substantial
and compelling circumstances. The court a quo correctly found such
circumstances did not exist in this case. It further
held that the
minimum sentence was, in view of the seriousness and aggravating
nature of the offences, too lenient and accordingly
imposed the
sentences referred to in paras 86 and 87 above.
[
89] Counsel
submitted that the court a quo had misdirected itself and that it did
not pay due regard to the element of mercy and the
rehabilitative
effect of the sentence and in the end imposed a sentence that was
excessive. This submission cannot prevail. This
was an armed robbery
which was extremely dangerous. It involved a gang of robbers using
two automatic rifles and machine guns. They
struck the armoured
vehicle from the rear and shots were fired causing the vehicle to
overturn. Their purpose was to bring the vehicle
to a stop at all
costs and they did not care about the safety of the occupants. They
cut the vehicle open and fled with the money.
These are aggravating
factors which the trial court took into account when considering the
appropriate sentence.
[
90] In
the result I can find no misdirection by the trial court. The
sentences imposed are commensurate with the seriousness of the
offences, the circumstances of the appellants as well as the
interests of society. The court further took into account the
cumulative
effect of the sentences and in the result ordered part of
the sentence to run concurrently with the sentence imposed in respect
of
the robbery count. There is accordingly no basis for this court to
interfere. In the result the appeal against sentence also fails.
[
91] It
is necessary to refer to an aspect arising from the record on appeal
and in particular the heads of argument. There is a disturbing
trend
concerning the heads of argument in this court. The provisions of
rule 10(3)
of this court provide:
'(a) The heads of
argument shall be clear, succinct and without unnecessary
elaboration;
(b) The heads of
argument shall not contain lengthy quotations from the record or
authorities.
(c) References to
authorities and the record shall not be general but to specific pages
and paragraphs.
(d)(i) The heads of
argument of the appellant shall, if appropriate to the appeal, be
accompanied by a chronology table, duly cross-referenced,
without
argument.'
[
92] In
Caterham
Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd
11
Harms
JA said:
'There also appears
to be a misconception about the function and form of heads of
argument. The Rules of this Court require the filing
of main heads of
argument. The operative words are "main", "heads"
and "argument". "Main"
refers to the most
important part of the argument. "Heads" means "points",
not a dissertation. Lastly, "argument"
involves a process
of reasoning which must be set out in the heads. A recital of the
facts and quotations from authorities do not
amount to argument.'
There is no reason why the
practice in criminal appeals should be treated any differently.
[
93] It
has become an undesirable practice for the parties not to give due
consideration to the rule relating to the composition of
the record
on appeal. The rule has been ignored in this case as voluminous heads
of argument were filed. The appellants' heads of
argument consist of
three volumes of 281 pages. We were also burdened with the notice of
motion and heads of argument in respect
of the application for leave
to appeal before Sapire AJ, three volumes of supplementary heads of
argument as well as an application
for an amendment of the heads of
argument, all of them unnecessary. The documents exceeded 900 pages.
This court has repeatedly admonished
parties against the inclusion of
unnecessary documents in appeal records.
[
94] Counsel
for the appellant protested his ignorance when we raised the issue
and referred him to the relevant rule. That was an
insufficient
response. In the circumstances, I intend making an appropriate costs
order to show our disapproval with this conduct.
[
95] In
the result the following order is made:
1. The appeal against the
convictions and sentences is dismissed.
2. The legal
representatives of the appellants are disallowed from recovering any
costs relating to:
(a) the heads of argument in the
appeal in so far as such exceeded 60 pages;
(b) the application to amend the
heads of argument;
(c) the
settling of the affidavits of the appellants (and any consultations
related thereto) filed in support of the application referred
to in
(b); and
(d) the transcript of the
argument before Sapire AJ.
_______________
N
Z MHLANTLA
JUDGE
OF APPEAL
Appearances:
For Appellant: P I Shapiro
P I Shapiro, Pretoria
Giorgi & Gerber
Attorneys, Bloemfontein
For Respondent: A R de Meillon
Director of Public
Prosecutions,
Bloemfontein
1
2004
(4) SA 1
(SCA) paras 2 â 4.
2
S v Nkata
&
others
1990 (4) SA 250
(A) at 256H.
3
At
256I - 257C.
4
At
257D-F.
5
S
v Jaipal
[2005] ZACC 1
;
2005 (1)
SACR 215
(CC) para 39.
6
See
R v Amod &
another
1958 (2) SA
658
(N) at 661.
7
S v
Chabalala
2003 (1) SACR 134
(SCA) para 15.
8
1998
(2) SACR 432
(E) at 434i-j. See also
S
v Mafaladiso & andere
2003
(1) SACR 583
(SCA).
9
[2003] ZACC 12
;
2003
(2) SACR 319
(CC) paras 87 - 88.
10
Director of Public
Prosecutions, KwaZulu-Natal v P
2006 (1) SACR 243
(SCA) para 10.
11
[1998] ZASCA 44
;
1998 (3) SA
938
(SCA) para 37.