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[2011] ZASCA 104
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Shilakwe v S (614/10) [2011] ZASCA 104; 2012 (1) SACR 16 (SCA) (1 June 2011)
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THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 614/10
In
the matter between:
THABO
VINCENT SHILAKWE
...............................................................
Appellant
and
THE
STATE
.......................................................................................
Respondent
Neutral
citation:
Shilakwe v The State
(614/10)
[2011]
ZASCA 104
(1 June 2011)
BENCH:
BRAND, PONNAN, SHONGWE JJA
HEARD: 25 MAY 2011
DELIVERED: 1 JUNE 2011
CORRECTED:
SUMMARY:
Appeal – no live issue – court
should avoid giving advisory opinion; evidence – mosaic of
proof – useful
aid to break down evidence into its component
parts – evidence ultimately to be assessed holistically.
______________________________________________________________________
ORDER
______________________________________________________________________
On
appeal from
:
Gauteng High Court (Circuit
Local Division - Vereeniging) (Prinsloo J sitting as court of first
instance).
The appeal
is dismissed.
______________________________________________________________________
JUDGMENT
______________________________________________________________________
PONNAN
JA (BRAND and SHONGWE JJA concurring):
[1] On Sunday, 30 November 2003 at approximately 5pm Ms Florence
Mazibuko was standing together with her friends Maria and Abdul
outside Adam’s Store in Klipriver when she observed four men
enter the store and emerge with a two litre coldrink. Whilst
they
were drinking the coldrink one of four complained that he was hungry.
Two of them then re-entered the store ostensibly to
purchase bread.
After a short while one of the two who had remained outside
approached Ms Mazibuko and her friends. He drew a firearm,
threatened
to shoot them if they made a noise and ordered them into the store.
Ms Mazibuko described the firearm as a handgun that
was brown in
colour with a wooden handle.
[2] According to Ms Mazibuko when they entered the store one of the
four men was emptying the cash register. Another had what she
described as a long firearm trained on Ms Hawa Ebrahim, the
proprietor of the store. He then struck Ms Ebrahim on her face with
the firearm, grabbed her hair and stamped on her. He threatened to
shoot her if she did not supply him with the keys to the safe.
When
she did not comply he discharged his firearm. Ms Ebrahim eventually
relented and produced the keys from her person and accompanied
her
assailant to the safe. Ms Mazibuko became aware that a certain Mr
Witbooi, who was alongside her, was whimpering. Concerned
that he
would attract attention to himself and her, she asked him to keep
quiet. She then observed that a liquid was oozing out
of his mouth
and heard one of the group tell the person who was in possession of
the long firearm ‘You have shot him’.
The group then made
good their escape with two boxes that they had filled with cigarettes
and other goods from the store. On leaving
the store one of the four
locked the door to the store from the outside.
[3] Shortly after the robbers had fled Mr David Mbakaza, a security
guard, arrived in a marked security vehicle at Adam’s
Store to
purchase food. He was alerted by Ms Mazibuko to the occurrence of the
robbery and informed that someone had been shot
during its course. Mr
Mbakaza set off in his vehicle in pursuit of the robbers. As he
approached a railway bridge in close proximity
to Adam’s Store
he noticed a white Toyota Venture motor vehicle parked under some
trees. He drove past the Venture and proceeded
in the direction of a
nearby informal settlement. He took the precaution of recording the
registration particulars of the Venture.
At the informal settlement
Mr Mbakaza made a u-turn. On his way back he observed two males, who
upon seeing him, started to run.
He telephoned the police emergency
number 10111 but there was no response. He thereafter dialled 112 and
reported the matter. He
then realised that the Venture, which was
being driven by a person with dreadlocks and had another occupant in
the front passenger
seat, was following him. No sooner had that
realisation dawned on him when he fortuitously came upon a police
vehicle and signalled
to them.
[4] Captain Molotsi of crime intelligence and Constables Matsose and
Molefe had just set out from Adam’s Store in pursuit
of the
perpetrators of the robbery when they came upon Mr Mbakaza.
Responding to his signal they stopped the Venture and arrested
its
two occupants. Acting on the information furnished by Mr Mbakaza
those police officers then set off in pursuit of the two men
who had
earlier been observed on foot.
[5] When the police officers came upon those two men, one of whom was
dressed in a white T-shirt and the other in a black T-shirt,
they
started to run. Constable Matsose chased after the one in the black
T-shirt, who turned and shot at him with a shotgun. Constable
Matsose
lost sight of that person in the veld. In the meantime Mr Corné
Kriek, a commando member, who had been alerted to
the robbery, joined
the police in their search for the suspects after having received a
report from Captain Molotsi. He was alerted
by the screams of a group
of children who pointed in the direction of a male in a black T-shirt
running in the veld. As he approached
that person with his firearm at
the ready that person appeared to lose his footing and fell in the
tall grass. Mr Kriek arrested
him, handcuffed him and handed him over
to one of the other police officers who had also joined the search,
Sergeant Malindi. Sergeant
Malindi, who searched the person in the
black T-shirt immediately after his arrest, found a 12-bore shotgun
cartridge in his pocket.
Constable Matsose immediately recognised the
person in the black T-shirt, who had been arrested, as the one that
had earlier fired
on him with a shotgun, whilst being chased.
[6] According to Captain Malotsi, the person in the white T-shirt was
prevented from making good his escape by a group of men who
had
arrived on the scene in response to his call for back up. The person
in the white T-shirt surrendered and he was also arrested
and
informed by Capt. Malotsi that he was suspected of having been
involved in the robbery at Adams store. The next day a search
was
conducted of the area. Inspector Erasmus, who took over as the
investigating officer of the case, came upon some boxes under
the
railway bridge. The contents of those boxes were subsequently
identified as having been stolen from the store during the robbery.
And, Sergeant Alfred Retief, whilst undertaking a sweep search of the
area where Accused 2 had been arrested found a shotgun, which
according to him, appeared as if it had been recently discarded at
that spot.
[7] The four persons arrested that day were formally charged with
robbery, murder, the attempted murder of Constable Matsose and
the
unlawful possession of firearms and ammunition.
[8] The driver of the Venture, Mandla Innocent Sehatsane, was
initially indicted as accused number 1; the passenger of the Venture,
Roro Sitzuzu, as accused number 2; the person in the black T-shirt,
Ayanda James Maseko, as accused 3; and the person in the white
T-shirt, Thabo Vincent Shilakwe, as accused 4. According to the
Inspector Erasmus, two further suspects came to be implicated in
the
commission of the offences. Inspector Erasmus arrested those two
suspects, Thabang Jacob Rapoluti and Queen Bulelwa Nomogena,
who were
joined as accused numbers 5 and 6, respectively. Ms Nomogena died
before the commencement of the trial. At the commencement
of the
trial before Prinsloo J (sitting with assessors) in the High Court
(Circuit Local Division - Vereeniging) the trial of accused
no 1,
Mandla Sehatsane, who had fallen ill, was separated from that of the
remaining accused. In the result the accused came to
be renumbered
thus: Mr Sitzuzu - accused 1; Mr Maseko - accused 2; Mr Shilakwe -
accused 3 and Mr Rapoluti - accused 4.
[9] Accused 1 was acquitted on all charges. Accused 2 was convicted
on all five charges whilst accused 3 and 4 were acquitted on
the
attempted murder and convicted on the remaining charges. Having found
that the
Criminal Law Amendment Act 105 of 1997
, the so-called
minimum sentencing legislation, was applicable to the convictions on
the murder, robbery and attempted murder, each
was sentenced to life
imprisonment, 15 years’ imprisonment and 5 years’
imprisonment (solely in respect of accused
no 2), respectively. In
respect of counts four and five, which did not fall within the
purview of the minimum sentencing legislation,
each was sentenced to
two years and one year imprisonment respectively.
[10] This appeal, with the leave of the trial judge, solely by
accused 3, Mr Shilakwe lies against his convictions on all of the
charges as well as the sentences imposed pursuant thereto.
[11] Whilst in the ultimate analysis the evidence must be looked at
holistically in order to determine whether the guilt of the
appellant
was proved beyond a reasonable doubt, the breaking down of the
evidence into its component parts is obviously a useful
aid to a
proper evaluation and understanding of it. The evidence adduced by
the State linking the appellant to the offences consisted
of the
eyewitness testimony of Ms Mazibuko; the evidence of Mbakaza and the
various police officers, who were present when he was
arrested; the
appellant’s statement to the investigating officer, Inspector
Erasmus; the appellant’s pointing out to
Captain Majaja and his
statements accompanying the pointing out and accused 4’s
statement to Inspector Erasmus.
(a)
The eye witness evidence
During her testimony Ms Mazibuko identified the appellant as one of
the robbers. She testified that she had had adequate opportunity
to
observe him in good natural lighting whilst he was outside. According
to her, he was the person who possessed the handgun and
who had
ordered her friends and her into the store. She stated that the
firearm that she had observed in his possession was similar
to
Exhibit 1 before court. Exhibit 1 was described in the evidence as a
9mm Beretta pistol which did indeed have a wooden handle
as she had
earlier described in her evidence. Ms Mazibuko had identified the
appellant at an identity parade. Before us there was
some attempt by
counsel to suggest that the identity parade did not comply with the
internal departmental orders adopted by the
South African Police
Services in relation to the conduct of identity parades. Accordingly,
so the submission went, ‘the probative
value of the
identification parade was seriously compromised’ and offered
‘little value in finding corroboration for
Ms Mazibuko’s
identification’. What stood in the way of that submission
though was a formal admission by the appellant,
in terms of
s 220
of
the
Criminal Procedure Act 51 of 1977
, to the following effect:
‘
8.1 Dat Kaptein J Fouché
op 22 November 2004 ‘n uitkenningsparade te Leeuwhof gehou
het.”
U edele, hier gaan net ‘n wysiging kom in
paragraaf 8,8.1: Die beskuldigdes 2 en 4 ek wysiging dit. Waar “3,
4 en 5”
was is dit nou “2, 3 en 4 as verdagtes op die
parade verskyn het.
"8.2 Dat die parade aan alle statutêre en
gemeenregtelike voorskrifte en reëls voldoen het.
8.3 Dat die inhoud van die uitkenningsparade, BEWYSSTUK
E, erken word en ingehandig word.’
Thus whether or not the various criticisms levelled by counsel at the
identity parade were indeed well-founded were not investigated
by the
trial court. In those circumstances it could hardly be expected of
this Court, absent a proper factual foundation, to do
so.
(b)
The evidence of Mbakaza and the police witnesses
Each of David Mbakaza, Captain Molotsi and Constable Motsotse placed
the appellant together with accused 2 in the vicinity shortly
after
the robbery had been committed. All testified that he was the person
wearing the white T-shirt, who they observed attempting
to flee. On
those crucial aspects they materially corroborated each other.
Moreover by the end of the case it came to be undisputed
that he was
indeed the person in the white T-shirt who was arrested whilst
attempting to flee.
(c)
The appellant’s statement to Inspector Erasmus
Inspector Erasmus testified that the appellant made a warning
statement to him in which he inter alia implicated accused 4 and
Queen Nomogena. He moreover, according to Inspector Erasmus, took the
latter to their respective homes and pointed them out.
(d)
The appellant’s pointing out
The statement accompanying the appellant’s pointing out reads:
'The suspect Thabo is not familiar with Meyerton Area
and ask to be taken back to Kliprivier at Thokoza/Heidelberg Road
near the
four way stop and request is granted. D/Insp. Bedford drives
to the four way. . . . Thabo request that we make a u-turn and drive
back towards Meyerton on Old Kliprivier/Meyerton road. Reach four way
stop Karee kloof/Meyerton and Thabo request us to turn left
at
intersection. Drive under train bridge and Thabo request driver to
slow down as he looks around and suddenly tell the driver
to turn
left at a side road junction and point to the direction of shops and
specifically points at a shop to the right and informs
me it is where
they committed the robbery. Thabo ordered the driver to stop at the
shop he pointed out. The shop is green in colour
. . . .
Near the entrance of the shop Thabo point to the left of
the shop a foot path that he and three accomplices namely,
Motlalepule
Thabang and Sibusiso approached the shop from.
Thabo then pointed out how he entered the shop through
the door and went to the counter where he bought 2litre Cola drink.
Thabo
then went back at the entrance at the door while Motlalepule
entered the shop and went further back into the shop. Thabo pointed
out a spot where Motlalepule stood when he shot the deceased with the
pump gun he was having and also the spot were he hit an old
Indian
woman with the butt of the pump gun. Thabo also pointed out the
shelves where Thabang and Sibusiso took cigarettes from
before they
left the shop.
Depart from the shop at 14:25 back to the main road and
turn left at the main road. Stop a few metres just past a train
bridge and
Thabo point out the direction Thabang and Sibusiso took
when they left the shop. Got back into vehicle and drove a few
hundred
metres and Thabo requested us to stop . . . and Thabo points
out a spot where the Toyota Venture they were using was waiting for
them. At this point Thabo and Motlalepule boarded the Venture. The
Venture drove in an Easterly direction and stopped a few hundred
metres where Thabo and Motlalepule got off. Thabo asked that the
Venture went back to go and collect Thabang and Sibusiso and when
they did not come back Thabo and Sibusiso decided to leave the scene.
. . . Thabo offered to show me the place where he was
arrested and where he hid the firearm he was carrying. At this time
Thabo
had a problem with the exact spot because were travelling in a
vehicle whereas he was walking through the fields and his sense of
direction was confused. I order Insp. Bedford to drive around the
area in case Thabo recognised some of the features but without
success.
The odometer reading was climbing as we drove around.
At 14:55 I asked Insp Bedford to contact the arresting
officer to join us at the bridge where the suspect Thabo seem to
think he
had crossed before he got arrested. At 15:05 we met Insp
Molotsi who was the arresting officer. I explained the problem to
Insp.
Molotsi and asked him to take [us] to the place where he had
arrested the suspect Thabo. Insp. Molotsi then took us to Plot 46
Gardenvale. Immediately [when] we reached this plot. Thabo recognised
the place and ordered us to stop at an open space near Plot
46
Gardenvale. Thabo then informed me that he had hidden the firearm at
this open veld but he could not point the exact spot but
we had to
look around while searching the place. Insp. Molotsi found the
firearm and called us all to it, The firearm was concealed
by
wed/grass. I let Insp. Tlali took photo of the firearm and also Thabo
pointed the scene where he had hid the firearm. The time
was 15:18.
I let Insp. Bedford take the firearm, a 9mm Pietso
Beretta with one (1) round inside the chamber and eight (8) rounds
inside the
magazine. The firearm have no serial number. The firearm
had it’s butt covered with wood on the sides. Insp. Bedford was
instructed to book the fire arm into the SAP 13.
At 15:25 we departed back to Meyerton SAPS . . . .’
The appellant formally admitted in terms of
s 220:
‘ “
Dat beskuldigde 3 T V
Shilakwe, ‘n formele uitwysing gemaak het aan kaptein P S
Majaja. Dat kaptein Majaja, ‘n offisier
in die Suid-Afrikaanse
Polisie Diens is en aangestel as ‘n vrederegter soos bepaal
onder die relevante wetgewing, insluitend
Wet 51 van 1977.”
(Dit is die Strafproseswet)
. . .
“
Dat die uitwysing aan alle
statutêre en gemeenregtelike voorskrifte en reëls voldoen
het. Die beskuldigde sy regte verstaan
het en vrywillig en sonder
onbehoorlike beïvloeding ten volle by sy positiewe nugter die
uitwysing gemaak het. Dat die inhoud
van die uitwysingsnotas korrek
is en as BEWYSSTUK G erken word en ingehandig word.
Dat die inhoud van die foto’s geneem voor, tydens
en na uitwysings (uitwysing moet dit wees, u edele) erken word en
ingehandig
word as BEWYSSTUK H.” ‘
(e)
The statement by accused 4
Relying on the authority of
S v Ndlovu
2003 (1) SACR 331
(SCA), the trial judge ruled that the statement of accused 4, which
had implicated his co-accused including the appellant, was
admissible
in evidence against them as well.
[12] To the evidence adduced by the State, must be added that of
accused 1 and 2, both of whom testified in their defence. Accused
1,
who was found not guilty largely because his version could not be
rejected, testified that on the day of the incident he came
upon the
erstwhile accused 1, Mandla, who was driving a white Venture close to
his home in Khatlehong. Mandla, who owned the Venture
and who he knew
to be a good person, asked accused 1 to accompany him. When accused 1
enquired where they were going to, Mandla
replied that he was taking
the other occupants of the vehicle to Klipriver. When they got to
Klipriver, two of the other occupants
- the appellant and accused 4 -
alighted from the vehicle and made a telephone call at certain public
telephones. After having
made the call, they told Mandla to drive to
a nearby bridge. At the bridge, the appellant, accused 2, accused 4
and a fourth person
alighted from the vehicle where they met a young
woman. Another young woman, who arrived in a Toyota Cressida, joined
the group.
Whilst that group were in the midst of a discussion,
Mandla suggested that they drive to the nearby informal settlement to
purchase
cigarettes. When they returned to the bridge the appellant
and accused 2 attempted to board the vehicle but were prevented from
doing so by Mandla, who noticed that they were possessed of firearms.
A short while later the police arrived and the two of them,
who were
still in the Venture, were arrested. Under cross-examination accused
1 admitted that upon their return after having bought
cigarettes he
observed two of the four that had earlier alighted from his vehicle
disappear under the bridge with some big boxes.
[13] Accused 2, Ayanda James Maseko, confirmed accused 1’s
version that he and his co-accused had travelled together with
Mandla
in the latter’s Venture to Klipriver with the purpose, so he
stated, of securing the services of prostitutes. The
appellant and
accused 4 were well known to him. According to him, when they got to
the bridge he negotiated with a prostitute and
accompanied her into
the veld. When he returned the Venture was gone. He was on his way to
the taxi rank to secure a taxi to get
back home when he was arrested.
[14] It is now necessary to step back a pace and consider the mosaic
as a whole (
S v Hadebe
1998 (1) SACR 422
at 426g-h). In my
view the trial court could in this case have rested its conviction of
the appellant on one of two edifices. First,
there was the evidence
of Ms Mazibuko, supplemented by that of the accused 1 and 2, taken
together with that of Mbakaza and the
police witnesses who testified
as to the appellant’s arrest. And second, the evidence of the
appellant’s pointing out
and his statements accompanying the
pointing out. Each edifice, independently of each other, called for a
response from the appellant.
As I have already pointed out, the
appellant did not testify in his defence. That was his right. But it
is not without its consequence.
(
S v Tandwa
2008 (1) SACR 613
(SCA) para53.)
[15] It is so that Ms Mazibuko was a single witness. Ms Hawa Ebrahim
did not testify. The trial court was informed that on account
of her
advanced age and what was referred to as her senility she would not
have been of any assistance to the court. Ms Mazibuko’s
evidence fell to be treated with caution, as indeed it was. I can
find no warrant for rejecting her evidence. In short she was
a good
witness and her identification of the appellant as one of the
perpetrators was reliable. Corroboration for her evidence
is to be
found in the evidence of the appellant’s two co-accused, who
testified. They put the appellant in the vicinity of
the robbery,
some 50 km from his home in Kathlehong. Moreover accused 1
corroborates her version that the appellant was indeed
armed. The
evidence of the appellant’s two co-accused completes the
mosaic. It establishes the movements of the group, including
the
appellant prior to the robbery. And the evidence of Mbakaza and the
arresting police officers establishes the movements of
the appellant
and his co-accused immediately after the robbery. That body of
evidence on its own, as I have stated, was sufficient
to put the
appellant on his defence. When, however, the pointing out and the
statements accompanying it are taken together with
that body of
evidence the case against the appellant becomes overwhelming. Taken
cumulatively, the appellant’s statements
accompanying the
pointing out, also lends material corroboration for Ms Mazibuko’s
evidence. His account of the robbery accords
with Ms Mazibuko’s
in all material respects.
[16] Plainly, the evidence that I have alluded to established the
guilt of the appellant beyond reasonable doubt. In arriving at
that
conclusion I have deliberately ignored from consideration the
evidence ruled to be admissible pursuant to
S v Ngcobo.
In
granting leave to appeal to the appellant the learned trial judge
appeared to entertain some doubt as to the correctness of
Ngcobo
(See
S v Ralukukwe
2006 (2) SACR 394
(SCA);
S v
Balkwell & another
[2007] 3 All SA 465
(SCA) and
S v
Libazi & another
2010 (2) SACR 233
(SCA))
.
He thus
granted leave to the appellant to appeal to this court. As I have
shown, the convictions in this case are well founded
without resort
to the evidence that subsequently occasioned the learned judge
feelings of disquiet. To turn to consider that issue
in these
circumstances would cause this court to involve itself in what may
safely be described to as an abstract, academic or
hypothetical
question. That we should not do. For, as Innes CJ stated in
Geldenhuys and Neethling v Beuthin
1918 AD 426
at 441:
'After all, courts of law exist for the settlement of
concrete controversies and actual infringements of rights, not to
pronounce
upon abstract questions, or to advise upon differing
contentions, however important.'
And in
National Coalition for Gay and Lesbian Equality &
others v Minister of Home Affairs & Others
2000 (2) SA 1
(CC), Ackermann J said the following at para 21 (footnote 18) with
reference to
J T Publishing (Pty) Ltd & another v Minister of
Safety and Security & Other
s 1997
(3) SA 514 (CC):
'A case is moot and therefore not justiciable if it no
longer presents an existing or live controversy which should exist if
the
Court is to avoid giving advisory opinions on abstract
propositions of law.'
(See also
Radio Pretoria v Chairman, ICASA
2005 (1) SA 47
(SCA).)
[17] As to sentence. It is trite that this court will not interfere
with the sentence imposed by the court below unless it is satisfied
that the sentence has been vitiated by a material misdirection or is
disturbingly inappropriate. No misdirection has been alluded
to, nor
can it be said that the sentence induces a sense of shock.
[18] It follows that the appeal against the convictions and the
sentences imposed pursuant thereto must fail and in the result
it is
dismissed.
_________________
V M PONNAN
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: H L Alberts
Instructed
by:
Pretoria
Justice Centre
Pretoria
Bloemfontein
Justice Centre
Bloemfontein
For
Respondent: J J Kotzé
Instructed
by:
Director
of Public Prosecutions
Pretoria
Director
of Public Prosecutions
Bloemfontein