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[2010] ZASCA 91
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Libazi v S (424/09) [2010] ZASCA 91; 2010 (2) SACR 233 (SCA) ; [2011] 1 All SA 246 (SCA) (1 June 2010)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case
No: 424/09
In
the matter between:
ANDILE
WILLIAM LIBAZI
FIRST APPELLANT
MABHUTI MBAYIMBAYI
SECOND APPELLANT
v
THE
STATE
RESPONDENT
Neutral
citation:
Libazi
v The State
(424/2009)
[2010] ZASCA 91
(1 June 2010).
Coram:
Mthiyane,
Mlambo and Shongwe JJA
Heard:
5
May 2010
Delivered:
1
June 2010
Summary:
Criminal
law – conspiracy to commit murder – what constitutes.
E
vidence
– admissibility of hearsay evidence in terms of s 3(1)(c) of
Law of Evidence Amendment Act 45 of 1988
: right to challenge evidence
– integral to constitutional guarantee of fair trial;
cautionary rule towards evidence of accomplice
– applicability
of.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
Eastern Cape High Court, Mthatha (Petse DJP sitting as court of first
instance).
The following order is made:
1. The
first
and second appellants’ appeal against their conviction and
sentence on count two is upheld and these are set aside.
2
. The
first appellant’s appeal against his convictions on counts
three, four and six is dismissed.
3. The second
appellant’s appeal against his convictions on count
s
three and four is dismissed.
4. The sentences
imposed on
the appellants on counts three, four and six respectively are set
aside and replaced with the following:
(i) Appellant
number one is sentenced to 10 years’ imprisonment on counts
three,
four and six respectively.
(ii) Appellant
number two is sentenced to 10 years’ imprisonment on counts
three and four respectively.
5
. All
the sentences are to run concurrently.
________________________________________________________________
JUDGMENT
________________________________________________________________
MLAMBO JA
(Mthiyane
and Shongwe JJA concurring):
Introduction
[1] The
first
and second appellants (Libazi and Mbayimbayi) and three others were
arraigned before Petse DJP sitting in the Sterkspruit
Circuit Court
of the Mthatha High Court. They were all indicted on one count of
murder arising out of the death of Mr Thokozile
Anderson Thubela, one
count of conspiracy to commit murder, five counts of attempted murder
in which the complainants were Messrs
Mawethu Malangabi, Gcobani
Ngcakana, Simphiwe Ngqaza, Lunga Maqala and Linda Malangabi, one
count of unlawful possession of two
AK47 rifles, one count of
unlawful possession of three 9 mm pistols, one count of unlawful
possession of 9 mm, AK47, R4 and R5
ammunition and one count of theft
of a firearm. At the conclusion of the trial only Herbert Shasha
(Shasha), who was accused number
three during the trial, was
convicted on the murder and theft counts. The appellants were
convicted on the conspiracy count as
well as on three and two counts
of attempted murder respectively
1
but were acquitted on all other counts. The remaining two accused
were acquitted on all counts.
[2] The high court
sentenced each of the appellants to 10 years’ imprisonment on
the conspiracy count as well as 10 years’
imprisonment on each
of the attempted murder counts they were convicted of. The court
further ordered that nine years of each of
the sentences imposed on
account of the attempted murder counts were to run concurrently with
the sentence imposed on the conspiracy
count. This resulted in an
effective term of imprisonment of 13 years for Libazi and 12 years
for Mbayimbayi. The high court subsequently
granted the appellants
leave to appeal to this court against their conviction on the
conspiracy count but refused them leave to
appeal against their other
convictions and sentences. This court, however, granted the
appellants leave to appeal to this court
against their convictions
for attempted murder and against all the sentences imposed by the
high court. Shasha subsequently passed
away and is not an appellant
in the appeal before us.
[3] The criminal
proceedings sketched above arose from some shooting incidents which
occurred in and around Sterkspruit on 27 May
1995. On that day a
number of men allegedly allied to the Herschel United Taxi
Association (HUTA) pursued and shot at members of
the Herschel Long
Distance Taxi Association (HLDTA). With the exception of Shasha, the
appellants and the other accused persons
who were acquitted were
admittedly members of HUTA whilst Thubela, the deceased, and all the
complainants in the attempted murder
counts, were members of HLDTA.
The first shooting incident occurred on the outskirts of Sterkspruit
when occupants of a white Toyota
Corolla fired shots at the occupants
of an Opel Kadet whose passengers were members of HLDTA. Ngcakana,
who was the driver of the
Kadet, identified Libazi as one of the
assailants. Mawethu Malangabi, who was a passenger in the Kadet, also
identified Libazi
as well as Mbayimbayi as two of the assailants.
Further shooting incidents took place at the Buyafuthi taxi rank in
Sterkspruit.
On this occasion Lunga Maqala was shot at by occupants
of a white Corolla and was wounded in his right thumb, index finger
and
thigh. He identified Libazi as one of the assailants. Linda
Malangabi also witnessed the shooting incident at the taxi rank and
saw the deceased, who had fallen to the ground whilst attempting to
run away, being shot several times as he lay on the ground.
This
witness, however, was unable to identify any of the assailants.
[
4] In
convicting the appellants the high court relied predominantly on the
evidence of Mr Mbulelo Albert Mbulawa (Mbulawa) and a
number of eye
witnesses including the complainants in the attempted murder counts,
as well as on an extra curial statement signed
by Shasha and given to
a magistrate in Sterkspruit on 24 December 1996. That statement which
came to be known as exhibit D during
the trial reads:
‘
We
were fetched from Phola Park in Johannesburg by certain young men
from Sterkspruit. There is a certain man whom I know as Dlomo.
He is
residing at
[Dawn]
Park. He arrived in the company of two young men. They were
travelling in a white 12 valve Toyota Corolla. Dlomo introduced
the
two young men as Andile Libazi and Mbayimbayi. He then introduced me
to the two young men. Dlomo said that the two young men
were his
homeboys in Sterkspruit. Their presence there was that they were
assaulted by Zulus who are having taxis which transport
passengers
from Sterkspruit. One of their colleagues has passed away and that
they needed assistance. I told Dlomo that there are
certain young men
to whom he can talk. Whilst we were standing, the two of them
appeared. We then talked to them. We explained
to them the presence
of the two young men from Sterkspruit. The young [men] agreed to come
and assist. The two young men from Phola
Park requested me to
accompany them. Andile and Mbayimbayi promised to offer some money
after the job had been done. They asked
us how much were we going to
need. We told them that we never did this. They thanked us. Later on
we told them that we wanted a
sum of R6000-00. They agreed and told
us that we should go to Sterkspruit immediately. They said that the
people [they] were fighting
against are armed with firearms. They
agreed that they were having firearms after we asked them. At about
18h00pm they picked us
after they had dropped Dlomo. We arrived at
about 11h00pm in Sterkspruit. We attended a night vigil of Andile’s
colleague.
Andile and his colleague talked with other taxi drivers.
We remained in the M/V. We then left and they followed us. We went to
fetch an R1 rifle from a certain homestead. We were told that it had
no rounds of ammunition. Some of the taxi drivers went to ask
for
some fire-arms. They came back with one fire-arm. We told them that
we cannot work with one fire-arm. We decided to go back
and not fight
if there were no fire-arms. We demanded the money they promised us.
They did give us money. They then took us back.
We said that if they
found more fire-arms they could come and fetch us. They fetched us
again on the following week saying that
they will try to collect
another fire-arm in Soweto. They collected the fire-arm. At about
8h00pm we left for Sterkspruit. We arrived
there at about 12h00pm at
Andile’s place. We were then taken to Mvelase’s place. In
the morning some drivers arrived
at Mvelase’s place. It was
alleged that their rivals were at the taxi rank busy loading
passengers. The two young men from
Phola Park were taken to the taxi
rank by a white motor vehicle carrying rifles. One of the men who
were having another fire-arm
arrived carrying two fire-arms. He then
gave me a .38 rifle. We then proceeded to the taxi rank travelling
with Mvelasi’s
van. Before we entered the taxi rank we heard
gun shots next to the garage. We met Andile’s M/V retreated. We
met another
gentlemen of Andile saying that they were fighting. His
M/V had been shot. We also turned back when we [did] not see Andile’s
group. There were also policemen. On our arrival at Mvelase’s
place others also arrived. They said that they found a fire-arm
from
somebody who had been shot. They did not know as to whom the fire-arm
belongs. We suggested that they took us back home. They
told us to
remain a while because there were soldiers. On the following day we
left for Johannesburg travelling in a Mercedes Benz.
On the second
occasion we were offered a sum of R3000,00.
That
is all.’
[
5] Shasha,
who was legally represented, did not contest the state’s
application for the admission of the statement into evidence
and to
it being used against him. Nor did he contest that the statement was
given by him freely and voluntarily. The appellants,
however,
resisted the state’s application to have the same admitted in
evidence against them in terms of s 3(1)(c)
2
of the Law of Evidence Amendment Act 45 of 1988 (LEAA). The high
court ruled that the statement was admissible hearsay evidence
against the appellants and undertook to provide reasons at the
conclusion of the trial. The court has, however, not provided its
reasons for the ruling.
[6] The appeal
against all the convictions is primarily based on two legs. The first
is that the high court erred in ruling that
Shasha’s statement
was admissible not only against him but also against the appellants.
The other basis specifically in relation
to the convictions on the
attempted murder counts is that the evidence of the state witnesses
was unreliable due to the influence
of the rivalry between the taxi
associations and further due to inadequate opportunity for the
witnesses for reliable identification
during the shooting incidents.
[
7] The
ruling by the high court and the proper approach to s 3(1)(c)
featured prominently in the argument before us. In this regard
it was
argued that the statement properly construed amounted to a confession
and as such was inadmissible against anyone else other
its maker in
terms of the provisions of s 217
3
of the Criminal Procedure Act 51 of 1977 (the CPA). An alternative
argument was that if it were found that the statement was not
a
confession but an admission, that it was similarly not admissible
against the appellants in terms of s 219A
4
of the CPA. Pursuing this argument we were invited to revisit the
reasoning and conclusion of this court in
S
v Ndhlovu
5
where statements by two co-accused which, despite their disavowal by
their alleged makers, were treated as hearsay evidence in
terms of s
3(1)(c) and were ruled to be admissible against the co-accused in
that matter. It was argued before us that that matter
had been
wrongly decided and that we should depart from it. It is appropriate
at the outset, to focus on this issue in view of
its prominence in
the appeal.
[8] Before I
consider
S
v Ndhlovu
,
it is opportune to state that, in my view, Shasha’s statement
was not a confession but one admitting a number of facts pointing
to
his complicity in the planning of criminal conduct aimed at members
of a rival taxi organisation. In this regard a confession
is
generally described as ‘an unequivocal acknowledgement of
guilt, the equivalent of a plea of guilty before a court of
law’.
6
On the other hand an admission is referred to as ‘a statement
or conduct adverse to the person from whom it emanates’.
7
These definitions were approved by the Constitutional Court in
S
v Molimi
.
8
S v Ndhlovu
[
9] In
Ndhlovu
this court upheld a ruling by the trial court that, in terms of
s 3(1)(c), verbal and written statements by certain accused
which incriminated other accused, were admissible hearsay evidence
against those accused who made them as well as against those
accused
they incriminated. The primary argument advanced in that case against
the admissibility of the statements against the other
accused, was
that this deprived them of their right to challenge that evidence
through cross-examination. After an exhaustive analysis
of s 3
9
the court in
Ndhlovu
rejected the argument against admissibility on the basis that the
Bill of Rights did not guarantee the right to challenge all evidence
through cross-examination, stating:
‘
Where
that evidence is hearsay, the right entails that the accused is
entitled to resist its admission and to scrutinise its probative
value, including its reliability. The provisions enshrine these
entitlements. But where the interests of justice, constitutionally
measured, require that hearsay evidence be admitted, no
constitutional right is infringed. Put differently, where the
interests
of justice require that the hearsay statement be admitted,
the right to “challenge evidence” does not encompass the
right to cross-examine the original declarant.’
10
[
10] The
court further expanding on its view that the statements were
admissible hearsay evidence where the interests of justice
required
it, stated at para 31:
‘
The
probative value of the hearsay evidence depends primarily on the
credibility of the declarant at the time of the declaration,
and the
central question is whether the interests of justice require that the
prior statement should be admitted notwithstanding
its later
disavowal or non-affirmation. And though the witness's disavowal of
or inability to affirm the prior statement may bear
on the question
of the statement's reliability at the time it was made, it does not
change the nature of the essential inquiry,
which is whether the
interests of justice require its admission.’
Self evidently,
in
that matter this court essentially narrowed the ambit of the right to
challenge hearsay evidence tendered in terms of s 3 if
the
requirements for admission in that section were satisfied, and as the
court emphasized, if the interests of justice required
it. Were this
to be the rule in all instances, I have my reservations regarding the
justifiability thereof especially taking account
of the particular
facts of the matter in casu. Furthermore, this court in
S
v Molimi
was, for different reasons, of the view that what was crafted in
Ndhlovu
was not meant to be an ‘inflexible rule’.
11
[
11] Our
Constitution requires rights to be construed generously to ensure the
widest protection possible. Rights ought not be cut
down by reading
implicit restrictions into them. In-roads into the protection that
the right affords should in all instances be
justified.
12
The right to challenge adverse evidence is a foundational component
of the fair trial rights regime decreed by our Constitution
in s
35(3).
13
Cross-examination is integral in the armoury placed at the disposal
of an accused person to test, challenge and discredit evidence
tendered against him. As Schwikkard
14
puts it in her analysis of
Ndhlovu
:
‘
The
right to challenge evidence, in so far as it is an essential
characteristic of an adversarial trial and primarily directed at
the
truth-seeking, goes beyond merely establishing the reliability of the
hearsay evidence in question. Its most important component
–
cross-examination – is also an important tool in eliciting
favourable information . . . It also has certain features
that
arguably cannot be replicated by substituted indicae of reliability.
For example, contradictions between witnesses or apparent
inconsistency in a witness’s statement are better explored
though cross-examination than the logic of inferences. It is further
the best vehicle for ascertaining the credibility of the witness and
extracting information that might have been under-emphasized
or left
out in the-evidence-in-chief.’
[12] Failure to
respect an accused person’s fair trial rights has rightly been
viewed as having the potential to undermine
the ‘fundamental
adversarial nature of judicial proceedings’ which also imperils
their legitimacy. The Constitutional
Court in
S
v Molimi,
15
stated:
‘
This
court has said that the right to a fair trial requires a substantive
rather than a formal or textual approach and that “it
has to
instill confidence in the criminal justice system with the public,
including those close to the accused, as well as those
distressed by
the audacity and horror of crime”. It is not open to question
that a ruling on the admissibility of evidence
after the accused has
testified is likely to have an adverse effect on the accused's right
to a fair trial. It may also have a
chilling effect on the public
discourse in respect of critical issues regarding criminal
proceedings. More importantly, proceedings
in which little or no
respect is accorded to the fair trial rights of the accused have the
potential to undermine the fundamental
adversarial nature of judicial
proceedings and may threaten their legitimacy.’
[1
3] The
Constitutional Court expressed the statement referred to above in a
matter where
Ndhlovu
had been brought under scrutiny. Whilst acknowledging that
Ndhlovu
was indeed to be understood as narrowing an accused’s right to
challenge hearsay evidence tendered in terms of s 3, that
court
preferred to express no view on the correctness of the
Ndhlovu
rationale based on its view that this was not challenged in the
appeal to this court in that matter (
Molimi
).
16
Cautionary rules
[14] An even more
compelling consideration militating against the wholesale application
of the rule in
Ndhlovu
is rooted in the injunction to courts to treat co-accused or
accomplice evidence with caution. While the prejudice to the accused
of admitting the co-accused statement is very high and limits
constitutional rights to challenge evidence and remain silent,
various
cautionary rules operate to make the probative value of the
co-accused statement very low. In this regard, it is a widely
acknowledged
rule that the evidence of an accomplice should be
treated with extreme caution since, as Holmes JA put it:
‘
First,
[the accomplice] is a self-confessed criminal. Second, various
considerations may lead him falsely to implicate the accused,
for
example, a desire to shield a culprit or, particularly where he has
not been sentenced, the hope of clemency. Third, by
reason
of his inside knowledge, he has a deceptive facility for convincing
description – his only fiction being the substitution
of the
accused for the culprit.’
17
[1
5] Also
apposite in this regard are the remarks of this court in
Balkwell
& another v S
18
in which it was pointed out that:
'
.
. .
Ndhlovu
(
supra
)
too readily dismissed concerns expressed in
S
v Ramavhale
1996 (1) SACR 639
(A), which cautioned (at 649C–D) that a court should hesitate
long in admitting hearsay evidence
that plays a decisive or even a
significant part in convicting an accused person.
Ndhlovu
(
supra
)
makes no attempt to reconcile the incongruity between the bar created
by
section
219
of the
Criminal Procedure Act
51
of 1977
and its application of
section
3
of the
Law of Evidence Amendment Act
45
of 1988
.
Moreover, in dealing with the constituent parts of
section
3
,
Ndhlovu
offers
no guidance as to how the receipt of the extra-curial admissions
which it allows under that section, should be approached
given the
rationale at common law for their exclusion or what role, if any, the
various common-law safeguards should play.’
[1
6] For
all the aforegoing it is apparent that I do not regard the
Ndhlovu
approach as all encompassing. The matter at hand is a case of the
classical ‘absent witness’ as opposed to
Ndhlovu
and
Molimi
where the makers of the statements testified disavowing the
statements attributed to them. In our case, Shasha was clearly an
accomplice and did not testify. This effectively emasculated the
court from evaluating the evidence in the statement and applying
the
necessary cautionary rules. This, in my view, clearly militated
against the admission of the statement as hearsay evidence
against
the appellants. I also am not persuaded by the state’s argument
that the failure by Shasha to testify was mitigated
by the evidence
of Mbulawa who, the state asserted, could have been cross-examined on
the statement as his evidence, so the submission
went, was similar to
that contained in the statement. Strictly speaking this is not
factually correct. Fundamentally, however,
Mbulawa was not the author
of the statement and he could conceivably never be cross-examined on
its contents.
[
17] It
is opportune at this juncture to determine whether the appellants’
convictions are sustainable having expunged any
role played by
Shasha’s statement therein. It is trite that a trial court must
consider the totality of the evidence to determine
if the guilt of
any accused person has been proven beyond reasonable doubt. I focus
on the conspiracy conviction first. The high
court’s judgment
is silent regarding its reasons for convicting the appellants on this
count specifically. Whilst the high
court alluded to this count and
the evidence the state relied on to secure a conviction, nothing
further was said by the high court
regarding this count save for the
statement that the witness Mbulawa had been an impressive witness.
The court simply went on to
analyse the eyewitness account of the
shooting incidents themselves. One is therefore deprived of the
benefit of the high court’s
reasons for convicting the
appellants on the conspiracy count.
[
18] The
offence of conspiracy is punishable in terms of section 18(2)(a) of
the Riotous Assemblies Act 17 of 1956. The section provides:
‘
Any
person who . . . conspires with any other person to aid or procure
the commission of or to commit . . . any offence, whether
at common
law or against a statue or statutory regulation, shall be guilty of
an offence and liable on conviction to the punishment
to which a
person convicted of actually committing that offence would be
liable.’
Although conspiracy
is punishable in terms of an old statute dealing with riotous
assemblies, the crime of conspiracy as define
in the act is not
limited to acts relating to riotous assemblies. The definition is
wide enough to cover conspiracy to commit a
crime.
According to Burchell
19
the crime of conspiracy is committed ‘if what the parties agree
to do is a crime. There can be a conspiracy only if there
is a
definite agreement between at least two persons to commit a crime . .
.’
Furthermore
,
Snyman
20
has the following to say about the offence:
‘
To
constitute a crime there must be an act or an omission; a mere
subjective contemplation of future criminal conduct which does
not
find outward expression in deed or omission is not criminally
punishable. If a person agrees with another to commit a crime,
the
subjective contemplation advances to the stage of objective
expression, and the agreement is an act which amounts to a
conspiracy.’
[
19] It
appears that for a conviction on a charge of conspiracy to be
achieved the commission of an offence must be the focal point
of the
agreement between the perpetrators.
21
It is, however, not a requisite for a conviction on a charge of
conspiracy for the actual offence to have been committed. Once
the
planned offence is committed it appears that it is preferable to
rather convict of that offence than the conspiracy or both.
22
[20] The only
witness who gave evidence regarding the conspiracy count is Mbulawa.
His evidence was that he had known the appellants
for quite some
time, that he grew up in Hlomendlini, the same area as Mbayimbayi. He
testified that the appellants used to visit
him in his Gauteng
residence and that some time during 1995 they visited him and alluded
to a feud between their taxi association
and a rival one. They
allegedly solicited his assistance to fight back against the members
of that association. His evidence was
further that as he could not
render the assistance they required, he led them to Shasha whom he
knew as Maya, as a person who could
assist them. He never took part
in the discussions they had with the latter but had, however, heard
part of the discussion to the
effect that the assistance required by
the appellants was the procurement of firearms and for people to
fight the rival taxi association.
[2
1] Both
appellants, whilst acknowledging that they knew Mbulawa, disputed his
version that they had solicited his assistance. They
asserted that he
was either mistaken or deliberately incriminating them as he owed
Mbayimbayi an amount of R10 000 and further
that Libazi had refused
to loan him money.
[22] Perusal of
Mbulawa’s evidence and his performance under cross-examination
shows that the high court was justified in
regarding him as an
impressive witness. He came across as forthright and no contradiction
or inconsistency is apparent in his evidence.
Furthermore, he was not
involved in the feud between the taxi associations. He also knew the
appellants very well and simply relayed
the discussions he had with
them.
[2
3] Having
said that it must be so, however, that Mbulawa’s evidence on
its own falls short of establishing the offence of
conspiracy to
commit murder. The appellants sought assistance to ‘fight back’
against another association. Reduced
to its bare essentials,
Mbulawa’s evidence evinced an intention by the appellants’
to source assistance to ‘fight
back’. No specific crime
was mentioned by Mbulawa regarding the objective of the assistance
sought save that what was planned
was unlawful conduct. The
high-water mark of his evidence is that the appellants shared a
common purpose to engage in violent conflict
with a rival
association. It has not been shown that murder was specifically
within the contemplation of the appellants at that
time. The offence
of conspiracy to commit murder was clearly not established and that
conviction cannot stand.
[2
4] In
relation to the convictions of the appellants on the attempted murder
counts, the primary submission was that the evidence
tendered by the
state was unreliable on two bases as mentioned earlier. The first was
that the eyewitnesses did not have a conducive
opportunity to make
any reliable identification during a life and death situation as a
result of the shooting that was going on
at the time. The second
basis was that the evidence of the state witnesses should never have
been accepted as they were driven
by the rivalry of their
associations which had prompted them to falsely incriminate them.
[
25] Ngcakana,
the driver of the Kadet identified Libazi as one of their assailants
in the shooting incident outside Sterkspruit.
He stated that Libazi
was closest to him and he actually heard him say ‘kill the dog’
or words to that effect. Mawethu
Malangabi, a passenger in the Kadet
and who also attested to having heard the words uttered by Libazi,
also identified the latter
as well as the passenger on the extreme
left hand rear in the Corolla as Mbayimbayi. He stated that this
appellant had, in the
course of the shooting, removed his balaclava
and had alighted from the Corolla which enabled him to recognise him.
He stated,
however, that he did not see if this appellant had
anything nor did he see him do anything. This was the only evidence
regarding
the shooting incident outside Sterkspruit town. Maqala is
the only witness who identified Libazi during the shooting incident
at
the taxi rank.
[
26] The
appellants gave evidence in their defence and denied complicity in
the shooting incidents. Their version was that they were
at the rank
in Libazi’s taxi having a meal when they heard shooting in
their vicinity. In view of the fact that Libazi had
allegedly been
the target of past shooting incidents, they ran away. Both appellants
stated that the witnesses who allege to having
identified them were
actuated by the rivalry between their associations. They also stated
that they were mistakenly identified
as the situation during the
shooting incidents was not conducive for reliable identification.
[27] In my view,
the evidence of some state witnesses, especially Majodima, was
correctly discounted for being unreliable. The fact
remains that even
with that evidence being discounted, the direct identification
evidence by the three witnesses mentioned above
has not been shown to
be unreliable.
Furthermore,
the high court meticulously analysed all the evidence led clearly
alive to the need for reliability of the state’s
evidence
especially in relation to identification. In this regard the high
court found that the evidence of the state witnesses
was reliable and
branded the appellants as liars who deliberately ‘fudged’
their responses under cross-examination.
It can also not be disputed,
as the high court found, that the witnesses were well acquainted with
the two appellants, after all,
they operated in the same industry and
had known each other very well for a considerable period of time.
They were therefore not
strangers to each other. In my view, the high
court’s observations of the witnesses whom it had the
opportunity to observe,
throughout the trial, were justified.
[
28] Some
issue was taken with the fact that even if Mbayimbayi was identified
by Mawethu Malangabi as one of the passengers during
the shooting
incident involving the Kadet, he was stated to have done nothing
other than that he was a passenger in the Corolla.
Indeed, that may
be correct, but the fact of the matter is that Mbayimbayi was present
at a scene where a fellow association member
was there actively
shooting at the occupants of the Kadet. His presence at the scene
does not require him to have actively participated
as we have
reliable evidence from Mbulawa that he was one of the co-conspirators
that led to the violence on the day in question.
Clearly, he is
inextricably bound to the commission of offences by other members of
his association in his presence in execution
of the prior plan. He
did not advance a defence of disassociation nor did he tender
evidence to that effect. The high court made
its finding of guilt
against him with reference to authoritative pronouncements by our
courts in this regard based on the doctrine
of common purpose. The
principles of this doctrine are very clearly set out in
S
v Mgedezi
23
and
approved by the Constitutional Court in
S
v Thebus
.
24
[
29] I
have no hesitation therefore in concluding that the acceptance of the
evidence of the witnesses Ngcakana, Maqala and Mawethu
Malangabi is
justified and that their evidence is reliable. I conclude therefore
that the convictions of the appellants for attempted
murder were
justified.
Sentence
[30]
The
appeal against sentence is premised largely on the submission that
the conspiracy conviction be set aside which would naturally
influence the issue of sentence. This was on the basis that the other
sentences were ordered to run concurrently with the sentence
imposed
on account of the conspiracy conviction. The conspiracy conviction
has now fallen by the wayside and the sentence imposed
on that score
must consequently also fall away. This, as submitted, has an effect
on all the sentences as they were ordered to
run concurrently with
that imposed for the conspiracy conviction. In so far as the
sentences imposed for the attempted murder convictions
per se, it has
not been argued that any misdirection was committed by the high court
in imposing them. Indeed such an argument
would be misconceived as
those sentences are clearly appropriate and induce no sense of shock.
[31] I am of the
view that a sentence of 10 years’ imprisonment on each count of
attempted murder is justified but each of
these sentences should run
concurrently resulting in an effective sentence in the case of each
appellant of 10 years’
imprisonment.
[32] In the result:
1. The first and
second appellants’ appeal against the
ir
conviction and sentence on count two is upheld and these are set
aside.
2. The first appellant’s appeal
against his convictions on counts three, four and six is dismissed.
3. The second
appellant’s appeal against his convictions on counts three and
four is dismissed.
4. The sentences
imposed on the appellants on counts three, four and six respectively
are set aside and replaced with the following:
(i) Appellant number one is sentenced
to 10 years’ imprisonment on counts three, four and six
respectively.
(ii) Appellant number two is sentenced
to 10 years’ imprisonment on counts three and four
respectively.
5. All the sentences are to run
concurrently.
_______________
D MLAMBO
JUDGE OF APPEAL
APPEARANCES
APPELLANTS: M R
Hellens SC
Instructed by S S H Mehlomakulu &
CO, Sterkspruit
Matsepes Attorneys, Bloemfontein
RESPONDENT: S
Mbewu
Instructed by Director of Public
Prosecutions, Umtata
Director of Public Prosecutions,
Bloemfontein
1
Libazi was convicted of the attempted murder of
Mawethu
Malangabi, Gcobani Ngcakana and Lunga Maqala, and Mbayimbayi was
convicted of the attempted murder of Mawethu Malangabi
and Gcobani
Ngcakana.
2
‘
3
Hearsay evidence
(1) Subject to the
provisions of any other law, hearsay evidence shall not be admitted
as evidence at criminal or civil proceedings,
unless-
(a)
each
party against whom the evidence is to be adduced agrees to the
admission thereof as evidence at such proceedings;
(b)
the
person upon whose credibility the probative value of such evidence
depends, himself testifies at such proceedings;
or
(c)
the court, having regard to-
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility the probative value of such
evidence depends;
(vi)
any prejudice to a party which the admission of
such evidence might entail; and
(vii)
any other factor which should in the opinion of
the court be taken into account,
is
of the opinion that such evidence should be admitted in the
interests of justice.’
3
‘
217
Admissibility of confession by accused
(1)
Evidence of any confession made by any person in relation to the
commission of any offence shall, if such confession is proved
to
have been freely and voluntarily made by such person in his sound
and sober senses and without having been unduly influenced
thereto,
be admissible in evidence against such person at criminal
proceedings relating to such offence: Provided-
(a)
. . .’
4
This section provides: ‘Admissibility of admission by accused
(1)
Evidence of any admission made extra-judicially by any person in
relation to the commission of an offence shall, if such admission
does not constitute a confession of that offence and is proved to
have been voluntarily made by that person, be admissible in
evidence
against him at criminal proceedings relating to that offence:
Provided that where the admission is made to a magistrate
and
reduced to writing by him or is confirmed and reduced to writing in
the presence of a magistrate, the admission shall, upon
the mere
production at the proceedings in question of the document in which
the admission is contained-
(a)
be
admissible in evidence against such person if it appears from such
document that the admission was made by a person whose name
corresponds to that of such person and, in the case of an admission
made to a magistrate or confirmed in the presence of a magistrate
through an interpreter, if a certificate by the interpreter appears
on such document to the effect that he interpreted truly
and
correctly and to the best of his ability with regard to the contents
of the admission and any question put to such person
by the
magistrate.’
5
2002 (2) SACR 325
(SCA).
6
R v Becker
1929 AD 167
at 171.
7
Du Toit et al (see footnote 52 in
Molimi
(CC)).
8
[2008] ZACC 2
;
2008 (2) SACR 76
(CC) para 28.
9
In paras 11-15.
10
Para 24.
11
2006 (2) SACR (SCA) para 13.
12
S v Zuma
[1995] ZACC 1
;
1995 (2) SA 642
(CC) at para 14;
S
v Mhlungu
[1995] ZACC 3
;
1995 (3) SA 391
(CC) at para 9.
13
‘3.
Every
accused person has a right to a fair trial, which includes the
right-
to be informed of the
charge with sufficient detail to answer it;
to
have adequate time and facilities to prepare a defence;
to
a public trial before an ordinary court;
to
have their trial begin and conclude without unreasonable delay;
to
be present when being tried;
to
choose, and be represented by, a legal practitioner, and to be
informed of this right promptly;
to
have a legal practitioner assigned to the accused person by the
state and at state expense, if substantial injustice
would
otherwise result, and to be informed of this right promptly;
to
be presumed innocent, to remain silent, and not to testify during
the proceedings;
to
adduce and challenge evidence;
not
to be compelled to give self-incriminating evidence;
to
be tried in a language that the accused person understands or, if
that is not practicable, to have the proceedings interpreted
in
that language;
not
to be convicted for an act or omission that was not an offence
under either national or international law at the time
it was
committed or omitted;
not
to be tried for an offence in respect of an act or omission for
which that person has previously been either acquitted
or
convicted;
to
the benefit of the least severe of the prescribed punishments if
the prescribed punishment for the offence has been changed
between the time that the offence was committed and the time of
sentencing; and
of
appeal to, or review by, a higher court.’
14
P J Schwikkard ‘The Challenge to Hearsay’ 2003
SALJ
63 p 71.
15
[2008] ZACC 2
;
2008 (2) SACR 76
(CC) para 42.
16
Para 47.
17
S
v Hlapezula & others
1965 (4) SA 439
(A) at 440D-E. See also
S
v Gentle
2005 (1) SACR 420
(SCA);
S
v Scott-Crossley
2008 (1) SACR 223
(SCA);
S v
Makeba and another
2003 (2) SACR 128
(SCA);
D T Zeffertt, A P Paizes, A St Q Skeen
The
South African Law of Evidence
2003 pp 801-804.
18
[2007] 3 All SA 465
(SCA) paras 34-35.
19
J Burchell
Principles of
Criminal Law
3 ed (2005) p
652.
20
C R Snyman
Criminal Law
5 ed (2008) p 294-295.
21
Rex v Milne and Erleigh
(7)
1951 (1) SA 791
(A) at 823;
S
v Sibuyi
1993 (1) SACR 235
(A) at 249E.
22
S v
Fraser
2005 (1) SACR 455
(SCA) para 7, where the following is stated:
‘Normally, where a person conspires with another to commit a
crime and the
crime in question is committed, then the conspirator
is liable for the crime itself and should be so charged: See
Burchell
South
African Criminal Law and Procedure
vol
1 General Principles of Criminal Law 3rd ed at 367 and cf
R
v Milne and Erleigh (7)
1951
(1) SA 791
(A) at 823G.’
23
1989 (1) SA 687
(A).
24
[2003] ZACC 12
;
2003 (2) SACR 319
(CC).