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[2010] ZASCA 138
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Naude and Another v S (488/10) [2010] ZASCA 138; [2011] 2 All SA 517 (SCA) (16 November 2010)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 488/10
KASHIEF NAUDE
...............................................................................................
First
Appellant
GARRETH SOLOMONS
................................................................................
Second
Appellant
and
THE
STATE
.............................................................................................................
Respondent
________________________________________________________________
Neutral citation:
Naude &
another v S
(488/10)
[2010] ZASCA 138
(16 November 2010)
CORAM:
Navsa, Nugent JJA and K Pillay AJA
HEARD:
1 November 2010
DELIVERED:
16 November 2010
SUMMARY: Approach to evaluation of
evidence ─ totality of evidence to be considered ─
failure by accused to testify
in circumstances calling for an answer
─ court unlikely to reject credible evidence which an accused
has chosen not to deny
─ in such instances an accused’s
failure to testify almost bound to strengthen the case of the
prosecution.
________________________________________________________________
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
Western Cape
High Court (Cape Town) (Donen AJ sitting as court of first instance).
1. The appeals by the appellants
against their convictions are dismissed.
2. The appeal by the first appellant
against all the sentences imposed is dismissed.
________________________________________________________________
JUDGMENT
________________________________________________________________
NAVSA JA (NUGENT JA and K PILLAY AJA
concurring)
[1] At approximately 03h30 on the
morning of 7 May 2004, 39 gunshots were fired in a house situated at
58, 15
th
Street, Bishop Lavis, in the heart of the Cape
Flats. Four occupants of the house were killed. The fifth, Ms Liezel
Van Heerden,
15 years old at the time and pregnant, despite
sustaining 25 gunshot wounds, miraculously survived. Her
identification of one of
the assailants, Mr Marco Moosa, set in
motion a sequence of events resulting in him being convicted in the
Cape High Court
together with the two appellants, of four counts of
murder and one of attempted murder.
[2] The two appellants are Mr Kashief
Naude and Mr Garreth Solomons. Mr Moosa and Mr Solomons
were also convicted
on two counts of contravening the
Firearms
Control Act 60 of 2000
, on the basis that they had been in unlawful
possession of the firearms and ammunition that were used in the
shooting referred
to above ─ the ballistics evidence adduced by
the State showed that three weapons had been discharged at the Van
Heerden
house. I shall refer to the appellants as Kashief and Garreth
respectively.
[3] The four people killed in the
attack on the house were Liezel’s mother, Ms Beverley Van
Heerden, her brother Leon
Van Heerden, her mother’s boyfriend,
Mr Henry Martin, and Leon’s friend, Mr Lucius McKenzie.
[4] In respect of each count of murder
Mr Moosa was sentenced to life imprisonment. He received the same
sentence in respect of
the count of attempted murder. On each of the
two remaining counts he was sentenced to three years’
imprisonment. The sentences
are to run concurrently. On each of the
counts of murder and on the count of attempted murder Kashief was
sentenced to 20 years’
imprisonment. All the sentences were
ordered to run concurrently. On each of the first five counts Garreth
was sentenced to life
imprisonment and on each of the remaining
counts he was sentenced to five years’ imprisonment. Kashief
and Garreth both appeal
against their convictions on the basis of the
insufficiency of evidence. In addition, Kashief appeals against the
effective sentence
of 20 years’ imprisonment. Their appeals are
before us with the leave of the court below (Donen AJ). Mr Moosa, for
the reasons
that appear hereafter, understandably, did not appeal
against his convictions and related sentences.
[5] In order to determine the
correctness of the convictions and the sentence imposed on Kashief it
is necessary to have regard
to the material parts of the evidence
adduced by the State and to the factors associated with sentencing. I
will, in due course,
deal with the relevant submissions on behalf of
the appellants.
[6] It is abundantly clear that the
evidence implicating Mr Moosa was overwhelming. First, there was the
evidence of Liezel Van
Heerden. According to her Mr Moosa had until
recently been good friends with Leon and had been a frequent visitor
to the house
and sometimes stayed over. She testified that on the
morning in question Mr Moosa had gained entry to their house by
telling
her mother that his motor vehicle had run out of petrol.
After gaining entry she had heard him wake Leon by announcing his
presence
and then heard shots being fired. A shot passed through the
door and struck her in her leg. Shortly thereafter someone else who
had accompanied Mr Moosa entered her room and shot her 24 times. From
where she lay on the floor she saw Mr Moosa standing in the
living
room. After the shooting she saw him flee with another man, whom she
could not identify. It was that vital information,
imparted by Liezel
whilst in an ambulance at the scene shortly after the shooting, which
led the police to Mr Moosa and subsequently
to the appellants
and to all the women who had been in their company in the hours
before the shooting took place.
[7] Second, Mr Moosa had made a
statement to the police admitting that he went to the house armed but
denied that he had shot anyone.
In the statement he said that he was
surprised when Garreth started shooting, causing him to flee,
seemingly in horror. In short,
he transferred the blame to Garreth.
[8] Third, the police testified that
he had led them to a house at which they found a firearm that was
positively linked to the
shooting.
[9] Fourth, the person at whose house
the gun was found testified that he had received a phone call from
someone identifying himself
as Marco at approximately 04h00 on 7 May
2004. That person requested him to keep an item that would be thrown
into his yard. That
item was the firearm referred to in the preceding
paragraph, which the witness retrieved later that morning. The only
Marco known
to the witness was Mr Moosa.
[10] It is necessary to record that a
footprint track left in the blood on the floor of the Van Heerden
house was admittedly that
of Mr Moosa and it pointed in the direction
of the front door. Furthermore, it was unchallenged that in the weeks
leading up to
the shooting incident the relationship between Leon and
Mr Moosa had soured. Significantly, evidence was led by the State to
the
effect that Mr Moosa had planted the idea in Garreth’s
head that the latter’s girlfriend, Ms Faranaaz Naude,
Kashief’s sister, was having an affair with Leon Van Heerden. I
shall refer to Ms Naude as Faranaaz.
[11] An important part of the State’s
case against Mr Moosa and the appellants was the testimony of Ms
Rugaya Solomons, who
at the time of the shooting incident was
Kashief’s girlfriend. According to her, the appellants, Mr
Moosa and Faranaaz were
all still together at her house in Retreat at
approximately midnight leading into the morning of 7 May 2004. She
testified that
excluding her, the rest of the party then left
together in Mr Moosa’s motor vehicle, ostensibly to take
Faranaaz home
to Bridgetown where, it appears she had to do or
collect something. They also intended to drop Mr Moosa off at
the airport
where he worked.
[12] Ms Solomons testified that she
expected the appellants and Faranaaz to return as arrangements had
been made earlier for all
of them to sleep at her house. It was a
matter of concern that a long time had passed without them returning
and without her hearing
from Kashief. Consequently, at approximately
04h00, she called Garreth on his cellular telephone because Kashief
did not own one.
Garreth answered and she asked him to hand the phone
to Kashief. She enquired about their whereabouts and was told that
they were
waiting for Faranaaz. She was informed that they had just
come from Mr Moosa’s house. After ringing off she attempted
almost
immediately thereafter to once again reach Garreth
telephonically. When there was no answer she rang off.
[13] Importantly, Ms Solomons
testified that the appellants and Faranaaz returned to her home
between 05h00 and 05h30 on the morning
of 7 May 2004, which was
shortly after she had spoken to Kashief telephonically. Although she
did not look to see in which vehicle
they arrived it is clear from
her earlier evidence, referred to above, that they had left her house
in Mr Moosa’s vehicle.
It is equally clear that his vehicle was
their sole means of transport during that night leading into the next
morning. Ms Solomons
recalled that after the others had returned
Faranaaz had asked her for cigarettes. Ms Solomons then went to
sleep alongside
Kashief whilst Faranaaz and Garreth went to another
room. She and Kashief were roused by the police at approximately noon
on 7
May 2004. Faranaaz and Garreth were no longer there nor was
Mr Moosa’s motor vehicle. In this she was corroborated by
the evidence of the police.
[14] The evidence by the police that
when they arrived at Ms Solomon’s house on 7 May 2004 and
explained the purpose of their
visit she immediately turned to
Kashief and enquired what he had done that morning was unchallenged.
[15] It is significant that although
Kashief’s legal representative, with reference to a call log
supplied by a cellular telephone
operator, questioned the accuracy of
Ms Solomons’ recall of the time at which she made cellular
telephone calls during the
morning of 7 May 2004, it was never
disputed that the exchanges referred to in para 10 involving her and
the appellants took place.
More importantly, it was never put to Ms
Solomons by Kashief’s legal representative that she was either
mistaken or lying
about the time he arrived back at her home with
Garreth and Faranaaz on the morning of 7 May 2004, namely, between
05h00 and 05h30.
[16] When Ms Solomons was
cross-examined by Garreth’s legal representative it was clear
that she was unsure of cellular telephone
numbers and the exact times
at which calls were made. Nonetheless, she repeated that she had had
the conversation with Garreth
and Kashief referred to in para 10.
Whilst it was put to her that Garreth denied that he had returned to
her house at approximately
05h00 on 7 May 2004, she was never
challenged on her evidence that the telephone conversation referred
to above had occurred. Put
differently, it was never put to her that
Garreth denied that such a conversation had taken place or that he
had handed the cellular
telephone to Kashief. It bears mentioning
that the call log produced by the relevant cellular telephone
operator showed a number
of phone calls made on 7 May 2004 between
03h00 and 05h00 from Ms Solomons’ cellular telephone.
[17] Shortly after the shooting
incident Ms Solomons supplied the police with a statement and it
was never suggested that her
evidence in court differed from what she
had told them. In short, her version of material events remained
consistent. Her responses
to the police were spontaneous and
unguarded.
[18] It was submitted on behalf of the
appellants that Ms Solomons’ evidence could not be accepted
because it was contradicted
by Faranaaz who was also a witness for
the prosecution. That submission will be dealt with later. At this
stage it is necessary
to consider the material parts of Faranaaz’s
evidence. She agreed that the appellants had been together at
Ms Solomons’
home during the night of 6 May 2004. She
testified that, excepting Ms Solomons, they later all departed from
the house in Mr Moosa’s
car and went to Bridgetown. When they
arrived at Faranaaz’s house she and Garreth went to sleep,
whilst Mr Moosa and Kashief
went into another room. She awoke when Mr
Moosa asked her to iron his shirt and jacket for work. She did not
know what he had done
with the shoes he had been wearing the night
before but when he dressed for work he wore his work shoes. When she
went back to
bed, after ironing the clothes, Mr Moosa and Kashief
were still there. Garreth remained sleeping. When she awoke later
that morning
Mr Moosa’s vehicle was not on the premises and
neither he nor Kashief were on the premises. In essence Faranaaz
provided
an alibi for Garreth, the father of her child. It is thus
true that in material respects her evidence contradicts Ms Solomons.
[19] It is common cause that Faranaaz
made two statements to the police which are contradictory. In the
first, made on the day of
the shooting, she stated that Garreth had
been with her from around 21h30 on the night of 6 May 2004 and had
remained with her
until the police brought them to the police station
for questioning. In the second, made on 8 May 2004, she stated that
Mr Moosa
and the appellants had dropped her at her home in Bridgetown
after midnight and were away for a considerable length of time before
they returned. According to her, she made the second statement, which
had negative implications for the appellants because the
police had
threatened to have her jailed if she did not do so. This, of course,
was denied by the police.
[20] It is now necessary to look at
other evidence involving the appellants. After a-trial-within-a-trial
a statement made to the
police by Kashief was allowed into evidence
by the court below. In the statement Kashief admitted that during the
morning of 7
May 2004 he had driven Mr Moosa’s motor vehicle to
a position close to the Van Heerden house in Bishop Lavis, having
been
directed there by the latter. Garreth was also in the motor
vehicle. Acting on Mr Moosa’s instructions Kashief had parked
the motor vehicle on the pavement, alongside a high wall. He remained
in the motor vehicle whilst the other two got out. They returned
a
while later and both appeared normal. He then drove to Bridgetown. En
route Ms Solomons phoned him twice on Garreth’s
cellular
telephone. She asked about their whereabouts. He lied and told her
that they had just been to Mr Moosa’s house.
He did this
because he was afraid that she would suspect that he was involved
with other women. According to Kashief’s statement,
after they
had arrived in Bridgetown, Mr Moosa asked Faranaaz to iron his
clothes for work, which she did. Kashief dropped Mr Moosa
off at work
and then fetched Garreth and Faranaaz in Bridgetown, whereafter they
drove to Ms Solomons’ house in Retreat.
[21] Mr Abdoel Karriem Orrie, whom it
took the police years to trace, testified that at approximately 08h00
on 7 May 2004, whilst
he was at his house in Newfields, he received a
telephone call from Garreth. He was asked to meet Garreth at a place
nearby. He
did so and encountered Garreth and Faranaaz in Mr Moosa’s
car. He was asked by Garreth to drop the two of them in Bridgetown
and to then leave the car at Ms Solomons’ house in Retreat. He
did as he was asked. On the way to Bridgetown he asked why
they had
come to him so early in the morning, to which Garreth replied that he
had just committed a ‘massacre’. According
to Mr Orrie,
Faranaaz looked troubled, as if she had seen a ghost.
[22] Furthermore, Mr Orrie testified
that he had been in the company of Garreth and Mr Moosa when the
latter engaged in a telephone
conversation with Leon Van Heerden.
According to Mr Orrie, it was immediately after that telephone
conversation that Mr Moosa had
planted the idea in Garreth’s
head that Leon was having an affair with Faranaaz. Linked to this is
the further testimony
of Mr Orrie that Garreth had given him an
expensive watch, which he indicated Leon had handed him as a gift.
Garreth explained
that he wanted to get rid of it because Leon was
being sexually intimate with Faranaaz. Mr Orrie sold the watch. This
aspect of
his evidence was unchallenged.
[23] A neighbour of the Van Heerdens,
Ms Charlene Claassen, who at the relevant time lived one house away
from the T-junction between
15
th
Street and Maitland Road,
Bishop Lavis and whose erf borders on their backyard, testified in
support of the State’s case.
According to her, she awoke
shortly before the shooting occurred because she was hungry. She was
preparing something to eat when
she heard a motor vehicle playing
loud music go past her house in Maitland Street and travel beyond the
T-junction. She then heard
the motor vehicle turn around and stop
close to her house. The music was no longer playing. A short while
thereafter she heard
shots being fired. She heard at least two people
jumping over the wall from the Van Heerden house into her property
and then heard
two doors slam and the car drive away. A short while
thereafter Liezel Van Heerden screamed for help. All of the
neighbours who
testified that they had become aware of the shooting
did not hear any music in the vicinity before or afterwards.
According to
one neighbour, the gunshot sounds were so severe that
his venetian blinds rattled at a distance of approximately 24 metres
from
the Van Heerden house. None of the neighbours heard or saw a
motor vehicle in the immediate vicinity of Liezel’s house after
the shooting, other than motor vehicles connected with the household.
[24] The statement by Kashief,
referred to above, and a subsequent pointing out by him concerning
the movement and position of Mr
Moosa’s motor vehicle during
the morning in question, which was admitted into evidence, ties in
neatly with Ms Claassen’s
description of what she had heard. It
is necessary to record that during the pointing out, Kashief, for the
first time, stated
that the music in the motor vehicle had been
blaring loudly in the time that he was parked in Maitland Street,
waiting for Garreth
and Mr Moosa to return and that he had not
heard any shots been fired.
[25] A pair of Mr Moosa’s shoes,
which it is admitted is linked to the footprint track left in the
blood on the floor of the
Van Heerden house, was found by the police
in the house occupied by Faranaaz and Kashief in Bridgetown.
[26] In the face of all that is set
out above Mr Moosa, Kashief and Garreth, perilously, as it turns out,
decided not to testify
in their own defence.
[27] The court below considered Ms
Solomons a credible witness and accepted her evidence of what had
occurred in the hours leading
up to the incident and thereafter. It
rejected the evidence of Faranaaz. Unsurprisingly, it considered the
mosaic of evidence set
out above to be such as to warrant a response
from the appellants and held it against them that they had not
testified. It consequently
convicted them as described above.
[28]
I now deal with the contention on behalf of the appellants that the
evidence in support of the State’s case was tenuous
and
ultimately unreliable. It was submitted that since a number of state
witnesses testified in terms of
s 204
of the
Criminal Procedure Act
51 of 1977
1
and
given that a number of them were single witnesses in respect of vital
issues the court below ought to have exercised greater
caution in
evaluating their evidence. As indicated above, an important part of
the appellants’ case is the conflict between
Faranaaz and Ms
Solomons.
[29]
In
S
v Van der Meyden
1999
(1) SACR 447
(W) at 449j-450b, the following is stated:
‘
The
proper test is that an accused is bound to be convicted if the
evidence establishes his guilt beyond reasonable doubt, and the
logical corollary is that he must be acquitted if it is reasonably
possible that he might be innocent. The process of reasoning
which is
appropriate to the application of that test in any particular case
will depend on the nature of the evidence which the
court has before
it. What must be borne in mind, however, is that the conclusion which
is reached (whether it be to convict or
to acquit) must account for
all the evidence. Some of the evidence might be found to be false;
some of it might be found to be
unreliable; and some of it might be
found to be only possibly false or unreliable; but none of it may
simply be ignored.’
Importantly,
in that case Nugent J warned against separating evidence into
compartments and to examine either the defence or State
case in
isolation.
2
See
also
S
v Van Aswegen
2001
(2) SACR 97
(SCA) at 101a-e,
S
v Trainor
2003
(1) SACR 35
(SCA) at 40f-41c and
S
v Crossberg
2008 (2)
SACR 317 (SCA) at 349f-i and 354b-g.
[30] In my view, the court below
evaluated the evidence in terms of what is set out in the preceding
paragraph. It took care to
consider the totality of evidence and left
none of the material evidence out of account. The court below rightly
rejected Faranaaz’s
alibi evidence and correctly preferred the
evidence of Ms Solomons. Faranaaz had already made contradictory
statements to
the police and her explanation that she was threatened
with jail if she failed to implicate the appellants causing her to
change
her version of events is unconvincing. The court below
considered her evidence that on the morning in question she ironed a
shirt
for Mr Moosa, to be implausible. I agree. She testified that it
was stained and smelt of perspiration. It is inexplicable that Mr
Moosa would have taken the trouble to ensure he had work shoes
available without at the same time ensuring a clean shirt. The
evidence about ironing the shirt was clearly designed to persuade the
court that the appellants and Mr Moosa were at her home at
material
times. Faranaaz’s testimony that earlier during the night of
6 May 2004 Kashief and Ms Solomons accompanied
Mr Moosa when he
took his girlfriend home to Hanover Park, leaving her and Garreth
behind, makes no sense, particularly when one
takes her further
evidence into account, namely, that later that night the appellants
departed once again accompanied by her and
travelled to her home in
Bridgetown. It is not insignificant that Mr Moosa’s shoes that
were linked to the scene were found
at her home. It should be borne
in mind that she is still in a relationship with Garreth and has a
child by him and she is Kashief’s
sister. She is clearly an
interested party with a motive to lie.
[31] Ms Solomons, on the other hand,
was a credible witness. Her spontaneous reaction when the police
sought to question Kashief
at her home on 7 May 2004, shortly after
the shooting, has a ring of truth about it. It will be recalled that
she immediately enquired
where he had been that morning. She had been
romantically involved with him for a year and had no cause to
implicate him. On the
contrary, it was against her interests to do
so. Ms Solomons was corroborated in material respects by the police
who did not find
Mr Moosa’s motor vehicle on the property. Mr
Orrie testified that he drove the motor vehicle to her home later
that day.
Ms Solomons was not challenged on her evidence that she had
engaged in a telephone conversation with Kashief during the time that
he and Garreth and Mr Moosa were away from her home during the early
morning hours of 7 May 2004. On the contrary, the statement
made by
Kashief to the police confirms that such a conversation took place.
She had ample cause to remember the time at which the
appellants
returned to her home. She was questioned by the police only hours
after the event about murders that had been committed.
Ms Solomons
was consistent in her version of events and the court below rightly
accepted her evidence.
[32] Indeed, counsel for Garreth found
himself unable to submit that Ms Solomons’ evidence was
untruthful. He was constrained
to argue only that it is reasonably
possible that she might have been mistaken. The possibility that she
might mistakenly have
thought that she had made the phone calls, that
she was mistaken in thinking that Faranaaz, Kashief and Garreth
returned to her
house in the early hours, and that she was mistaken
when she said that she had thereafter gone to sleep alongside Kashief
while
the other two went to another room, can be rejected without
more.
[33] Whilst it is true, as submitted
by Garreth’s legal representative, that Mr Orrie’s
evidence was not impeccable,
the material parts were credible and
partially corroborated. It is correct that the statements he made to
the police became more
detailed and more incriminating over time, the
most recent being a day before he testified. His explanation for how
this occurred
was corroborated by the police. It had taken them a
long time to trace him. Mr Orrie had been good friends with Garreth
and was
scared of him and feared for his life. He had been unwilling
to testify and on one occasion had fled a building where the
prosecution
offices are housed. He ultimately responded to a subpoena
and testified only after he had been placed in a witness protection
program.
It is also true that his evidence about the time at which he
dropped the motor vehicle off at Ms Solomons’ house on 7 May
2004 must be incorrect. On that limited aspect it conflicts with her
testimony and that of the police. The fact that the motor
vehicle was
returned without any other explanation proferred by the appellants or
anyone else, supports the essence of his evidence
in this regard,
namely, that he returned the motor vehicle as requested by Garreth
who was accompanied by Faranaaz. He had no cause
to fabricate that
evidence or that Garreth had told him that he had committed a
massacre. On the contrary, he was placing his life
at risk and it was
against his interests to do so. In my view, the court below rightly
relied on the core of his evidence implicating
Garreth.
[34] All the evidence set out earlier
was considered by the court below and it was careful in its detailed
evaluation. The court
below was very aware that it was dealing with a
number of witnesses who themselves were implicated in offences in
respect of which
they were required to be warned in terms of
s 204
of
the
Criminal Procedure Act 51 of 1977
. It must be mentioned that Ms
Solomons was not such a witness. The court below was conscious of the
need to be cautious in evaluating
the evidence of a single witness,
particularly one seeking indemnity.
[35] The court below correctly had
regard to Kashief’s statement to the police and to the related
pointing out. Before us,
his legal representative rightly conceded
that he had been an unsatisfactory witness during the
trial-within-a-trial. The court
below justifiably took into account
that Kashief at no time explained to anyone the reason for going to
the Van Heerden house other
than stating that he had been directed to
go there.
[36]
It was submitted on behalf of the appellants that because of the
conflict in the evidence of Faranaaz and Ms Solomons, both
of whom
were State witnesses, a successful prosecution was precluded. The
submission is fallacious. It is not unknown that a witness
sometimes
gives evidence unfavourable to the party who called him or her. There
is nothing to prevent such a party from calling
other evidence to
contradict the witness on matters relevant to the issue.
3
In
the present case, counsel for the State rightly disclosed a previous
inconsistent statement. The approach to the evaluation of
evidence at
the end of the case remains the same as set out in para 29 above. A
court will consider the unfavourable evidence alongside
all the other
evidence tendered. As stated earlier, Faranaaz’s evidence was
rightly rejected and the material contradictory
evidence adduced by
the State was correctly accepted, more so, in the light of the
failure of Mr Moosa and the appellants to testify.
[37]
The court below stated that the State produced ‘weighty’
evidence against all of the accused which called for an
answer. I
agree. Two months ago this court reiterated that a court is unlikely
to reject credible evidence which an accused has
chosen not to deny.
4
In
such instances an accused’s failure to testify is almost bound
to strengthen the prosecution’s case. In
S
v Chabalala
2003
(1) SACR 134
(SCA) para 21 the following was stated:
‘
The
appellant was faced with direct and apparently credible evidence
which made him the prime mover in the offence. He was also
called on
to answer evidence of a similar nature relating to the parade. Both
attacks were those of a single witness and capable
of being
neutralised by an honest rebuttal. There can be no acceptable
explanation for him not rising to the challenge. If he was
innocent
appellant must have ascertained his own whereabouts and activities on
29 May and be able to vouch for his non-participation.
. . . To have
remained silent in the face of the evidence was damning. He thereby
left the
prima
facie
case
to speak for itself. One is bound to conclude that the totality of
the evidence taken in conjunction with his silence excluded
any
reasonable doubt about his guilt.’
See
also
S
v Boesak
[2000] ZACC 25
;
2001
(1) SACR 1
(CC) para 24.
[38] Mr Moosa’s guilt was
clearly established and beyond debate. The appellants were admittedly
in his company shortly before
the events in question. On the evidence
referred to above the inference is irresistible, in the absence of an
explanation from
them, that they were with him at relevant times. On
Mr Orrie’s evidence Garreth had told him that he had
perpetrated
a ‘massacre’. Garreth made plans to have Mr
Moosa’s motor vehicle returned to Ms Solomons’ house by
someone
else shortly after the crimes had been committed, ostensibly
to put distance between him and the motor vehicle. Furthermore, he
had a motive to harm Leon. It is not necessary to repeat the evidence
implicating Kashief. Suffice it to say that the court below
was
correct to conclude that the loud music he was allegedly listening to
appear to be a late fabrication in an attempt to dissociate
himself
from the dastardly deeds. The evidence against the appellants
established their association with Mr Moosa in the perpetration
of the murders. It undoubtedly called for an answer, which was not
forthcoming. In the light of what is set out above both appeals
against convictions must fail.
[39] Insofar as sentence is concerned
it was submitted that if Kashief had indeed been the driver of the
getaway vehicle, he played
a lesser part than the others to the
extent that a more lenient sentence than that imposed was called for.
It was contended that
a further consideration which lessened
Kashief’s moral culpability was the continuing influence of the
drugs he and his cohorts
had all used during the night of 6 May 2004.
I disagree.
[40] The court below was satisfied
that substantial and compelling circumstances existed in respect of
Kashief, justifying a sentence
less than the prescribed minimum. It
concluded that he must have been in the motor vehicle and held in his
favour that he must
therefore have played a lesser role than the
others and thought that he might have been under their influence. In
all of this the
court below might have been too generous. On the
evidence presented by the State there was nothing to suggest that
Kashief had
not fully associated himself with the decimation of an
entire family. Given the manner in which the car had been parked and
the
surreptitious nature of the approach and return from the Van
Heerden household before and after the shooting it is hard to resist
the inference that all the participants were fully involved in the
planning and execution of what occurred in the house on that
fateful
morning. Kashief maintained his innocence to the end. He chose not to
testify and there is no basis on which to conclude
that he bore
diminished responsibility. The murders were brutal, bloody and
heinous and deserving of the full force of the law.
There is no merit
to the appeal against sentence.
[41] There are two remaining aspects
that require brief attention. We were required to read almost all of
a record comprising 28
volumes and more than 2 500 pages. There
were substantial parts of the record that were wholly irrelevant and
unnecessary
to read. The appellants’ legal representatives
conceded as much. It is unfair to the court and unacceptable that
this occurs.
Regrettably, this is a recurring trend. Practitioners
are reminded once again to be careful in their practice notes and to
ensure
that judges are advised to read only such parts of the record
as are necessary. In the event that this trend continues serious
thought will have to be given to engage professional associations to
consider appropriate sanctions. Consideration will also have
to be
given to court imposed sanctions.
[42] The final issue that calls for
comment is the extremely sloppy nature of the police investigation in
this matter. In the main,
this relates to forensic tests that were
either badly conducted or not conducted at all. Counsel for the State
rightly conceded
that there was no excuse for the shoddy police work
in this case. Whilst one appreciates the pressure the police are
under and
that they have limited resources there really is no excuse
for not collecting vital items and not sending those that they have
in their possession for proper testing which would result in more
efficient prosecutions.
[43] The following order is made:
1. The appeals by the appellants
against their convictions are dismissed.
2. The appeal by the first appellant
against all the sentences imposed is dismissed.
_________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For
1
st
Appellant: C B Brand (Attorney)
For
2
nd
Appellant: P Mihalik
Instructed
by
Legal
Aid Board, Cape Town
Legal
Aid Board, Bloemfontein
For
Respondent: L Badenhorst
Instructed
by
The
Director of Public Prosecutions, Cape Town
The Director of Public Prosecutions,
Bloemfontein
1
Section
204
provides that a competent witness called on behalf of the
prosecution who will be required to answer questions that may be
incriminating
has to be informed of that fact and of the obligation
to answer the question. It also provides that the court must inform
such
a witness that if he or she answers all questions frankly and
honestly he or she shall be discharged from prosecution with regard
to specified offences.
2
At
449g-i and see also D T Zeffertt, A P Paizes, A St Q Skeen
The
South African Law of Evidence
(2003) pp 151-152.
3
D
T Zeffertt
et al
op cit
at pp 746-747.
4
Mapande
v S
(046/10)
[2010] ZASCA 119
(29 September 2010).