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[2017] ZASCA 75
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Nkabinde and Others v S (115/2016) [2017] ZASCA 75; 2017 (2) SACR 431 (SCA); [2017] 4 All SA 305 (SCA) (1 June 2017)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 115/2016
In the
matter between:
KHETANI
MBUISE NKABINDE FIRST
APPELLANT
ORAPELENG
LAWRENCE MOGOJE SECOND
APPELLANT
AUBREY
MMUSHI DIKOBE THIRD
APPELLANT
JABULANE
ELLIOT PAPI MAKHENE
FOURTH
APPELLANT
and
THE
STATE RESPONDENT
Neutral
citation:
Nkabinde v The State
(115/17)
[2016] ZASCA 75
(01 June 2017)
Coram:
Navsa, Theron and Majiedt JJA and Fourie and Schippers
AJJA
Heard
:
18 May 2017
Delivered:
01 June 2017
Summary:
Criminal Law and Procedure: acting in concert
with common purpose: murder and robbery with aggravating
circumstances: purported
special entries in terms of
s 317
of the
Criminal Procedure Act 51 of 1977
: to be strictly complied with and
resorted to only if the irregularity does not appear on the record:
appeal dismissed.
ORDER
On
appeal from: Free State Division of the High Court, Bloemfontein:
(Cillié J, sitting as court of first instance):
1. The order of the court a quo granting leave to appeal
to a full court is set aside and replaced with the following:
‘
The
appellants are granted leave to appeal to the Supreme Court of Appeal
against their convictions and sentences.’
2. The appeal is dismissed.
JUDGMENT
Schippers
AJA (Navsa, Theron and Majiedt JJA and Fourie AJA concurring):
[1]
The appellants appeal
against their convictions of murder, numerous counts of attempted
murder, robbery with aggravating circumstances,
and unlawful
possession of explosives, firearms and ammunition, as a result of a
cash-in-transit heist in 2008 near Petrusburg
in the Free State
Province. They were each sentenced to life imprisonment as well as
lengthy terms of imprisonment.
A
summary of the state evidence
[2]
A substantial part of
the evidence on behalf of the state is common cause. The divergences
will become apparent in due course. Fidelity
Security Services
(Fidelity) is in the business of transporting cash with attendant
security. On 8 August 2008 one of its armoured,
cash-in-transit
vehicles containing a built-in safe (the armoured vehicle),
transported R2.5 million from Bloemfontein to Kimberley.
The money
was in four sealed bags, locked in the safe in the armoured vehicle
and manned by four security guards employed by Fidelity
(the guards).
They were armed with three LM5 rifles and a Vector 9 mm pistol. The
armoured vehicle was accompanied by two guards
in a Ford Bantam
delivery vehicle (the Bantam). They too, were armed with a LM5 rifle
and a 9 mm pistol, respectively.
[3]
As the convoy was
proceeding along the N8 national road, also known as the
Bloemfontein-Petrusburg Road (the road), about 3 km outside
Petrusburg they fell victim to a brazen armed robbery carried out in
broad daylight. The robbers pursued the convoy in no less
than five
vehicles. Three of those vehicles travelling at high speed, overtook
the Bantam in pursuit of the armoured vehicle. A
Mercedes-Benz rammed
twice into the Bantam from behind, causing the driver to lose
control. It left the road and came to a stop
opposite to the
direction in which it had been travelling. Four robbers, armed to the
teeth and wearing balaclavas, fired shots
at the Bantam, one of which
struck its side window and went through the windscreen. Fortunately
the guards were not injured. The
robbers then at gunpoint ordered the
guards out of the Bantam, forced them to lie face down on the ground,
and robbed them of their
firearms and cellular telephones. With the
guards subdued, the robbers left the scene.
[4]
In the meantime, their
accomplices, in other vehicles, continued to pursue the armoured
vehicle: one slowed it down from the front
and others pursued it from
behind. A third vehicle, another Mercedes-Benz, joined the pursuit
and at high speed slammed into the
right side of the armoured
vehicle, causing it to overturn, slide on the roadway and come to a
standstill on its passenger side.
As the guards emerged from the
overturned vehicle, they were surrounded by some 20 robbers, also
armed to the teeth, with automatic
rifles, AK-47 assault rifles,
handguns and wearing balaclavas. They demanded the keys to the safe
and threatened to shoot the guards
to show that they were serious
about getting the money. When it was clear that the guards did not
have the safe-keys, they were
told to lie alongside to the road, face
down. All of them were robbed of their firearms, cellular telephones
and some of their
wallets.
[5]
Next, the robbers tried
to blow off the doors to the safe in the armoured vehicle with
dynamite. The guards, lying on the ground,
described the sound of the
explosions like those of a bomb or grenade going off. The robbers
however succeeded only in blasting
a hole into an internal door
granting access to the safe. But the robbers were determined to get
to the money. Some robbers then
pulled up in a black Audi Q7 (the
Audi) which stopped at the rear of the armoured vehicle. They removed
an orange-coloured angle-grinder
and generator from the back of the
Audi. They placed the generator on the ground, held the angle-grinder
and tried to start it
in order to open the safe of the armoured
vehicle, but without success. They also unsuccessfully tried to start
the generator.
In what follows, I shall refer to the incidents near
the Bantam and the armoured vehicle as ‘the first scene’.
[6]
At the first scene, the
armoured vehicle lying on the roadway caused a build-up of traffic on
both sides of the road. A number of
innocent motorists and their
passengers caught in the traffic were robbed at gunpoint of their
cellular telephones, car keys and
cash. In most of these cases, the
cellular telephones were thrown into nearby bushes, to prevent the
motorists from contacting
the police. These victims also testified
that they heard loud explosions (as the robbers tried to blow open
the safe); and that
the robbers fired several shots at the first
scene, in some cases directly at their victims.
[7]
In one of these cases,
the robbers shot and killed an innocent motorist, Mr De La Rey, who
with his son was driving towards Bloemfontein.
They were on their way
home to Potgietersrus, after they had bought sheep at a farm in
Petrusburg. As they approached the first
scene, they heard shots
being fired in the veld and wanted to turn around. However, they
could not do so quickly enough because
they were in a Ford F250
delivery vehicle (the F250), towing a trailer with the sheep. Four
robbers in a Ford Focus stopped next
to them. They wore balaclavas
and three of them pointed their rifles at Mr De La Rey and his son.
The former turned the F250 towards
the Focus and accelerated. The
robbers then fired directly at Mr De La Rey and his son. The son was
forced to dive for cover and
saw his father’s head turn to one
side as he was struck by a bullet. Mr De La Rey lost control of the
F250, which went into
the direction of oncoming traffic and his son
turned the vehicle to the left, off the road. The robbers fired a few
more shots
at them before fleeing in the direction of Bloemfontein.
Later that day Mr De L a Rey died in hospital of a gunshot wound to
the
chest.
[8]
Another victim, Mrs de
Meillon, was on her way to Bloemfontein from Kimberley. She was
accompanied by her mother and two children.
As she was driving on the
road she saw the armoured vehicle overturning and come sliding
towards her. Next, she saw armed robbers
run towards the armoured
vehicle and realised that it was a robbery. She tried to make a
U-turn but some of the robbers in a BMW,
brandishing their firearms
out of its windows, forced her to the other side of the road. Two
armed robbers banged on her side of
the car and told them to get out.
Mrs de Meillon and her mother were manhandled and the barrel of a
rifle was shoved into her back
when the robbers could not find her
cellular telephone. She and her family were forced to lie on the
ground, face down. Shortly
thereafter she heard a loud explosion and
numerous shots being fired. She said that for at least half an hour,
shots were being
fired and the robbers sped up and down, pulling
innocent people off the road. At one point she thought that they were
going to
be run over and she and her family crawled to the front of
her car. They were robbed of R2 100 and cellular telephones valued at
about R10 000.
[9]
After the mayhem at the
first scene, and when the robbers could not open the safe in the
armoured vehicle, one of them shouted ‘time
up’ and they
fled the scene in the Audi, an Opel Corsa delivery vehicle (the
Corsa), a BMW and a Ford Focus (the Focus).
Unbeknown to them, at
about 9:15 am on 8 August 2008, police officers taking part in a mock
exercise at an Air Force base outside
Bloemfontein in preparation for
the 2010 soccer World Cup, received a report of the heist, that shots
had been fired and that there
was an explosion. Colonel Joubert
(Joubert), who was part of the mock exercise and knew the area well,
took command of a task force
and set off in an army helicopter in
pursuit of the robbers. They were told that the robbers had fled in
an Audi, a Corsa, a BMW
and a Focus.
[10]
Joubert received a
radio report that the robbers had left the road and taken a secondary
gravel road. On a gravel road near Soutpan,
some 90 km away from the
first scene, the helicopter approached the Audi and the Corsa from
behind. The vehicles were travelling
at high speed: estimated at
about 160 km/h. The door of the helicopter was open and members of
the task force signalled the driver
of the Audi to stop numerous
times, but to no avail. The helicopter then flew ahead and hovered
across the width of the road in
an attempt to stop the Audi. The
driver did not slow down, the helicopter was forced to ascend and the
Audi passed under it. In
the meantime the Corsa stopped following the
Audi and disappeared in the dust. The robbers in the Corsa and those
in other vehicles
got away.
[11]
The helicopter
continued the pursuit of the Audi on its passenger side, the windows
of which were open. The persons in the Audi
fired gunshots at the
helicopter, which was forced to veer further to the left of the Audi
to avoid being hit. A member of the
task force then fired a shot at
the Audi which shattered its right rear window. Joubert called for
ground reinforcements on the
radio. About 1 km past the entrance to
Soetdoring Nature Reserve, the Audi suddenly pulled off the road and
stopped. Two of the
occupants sitting at the back got out, opened the
tailgate, removed a white and orange object and threw it next to the
road. They
got back into the Audi and it sped away.
[12]
The chase continued. As
the Audi passed over the Modderrivier bridge, its occupants threw
firearms out of the windows. Two shots
were fired at the Audi from
the helicopter. One struck its left front wheel and the other, the
radiator. Still, the Audi did not
stop, but eventually it was forced
to do so near a stationary Toyota Hilux delivery vehicle (the Hilux)
where some people were
standing. All four doors of the Audi were
opened and the occupants, later identified as the appellants, made a
run for it. The
people standing at the Hilux also ran away. The
helicopter landed and members of the task team pursued the
appellants. The second
appellant jumped into the Hilux in an attempt
to get away. A shot was fired from the helicopter, shattering the
back window of
that vehicle. The second appellant got out of the
Hilux and started running again. Members of the task team caught the
appellants
and arrested them. I refer to the events at the place
where the Audi was stopped and the appellants arrested, as ‘the
second
scene’.
[13]
At the second scene, a
Vector 9 mm pistol was found in the boot of the Audi. This firearm
was issued by Fidelity to one of the guards
in the Bantam, who was
robbed of it at the first scene. A SIM card and Nokia cellphone
battery, belonging to Fidelity and issued
to a guard in the Bantam,
were found in the Audi. A packet containing dynamite, Durafuses and
insulation tape was found in the
boot of the Audi. A Durafuse was
used to ignite the blast at the first scene in the attempt to blow
open the safe of the armoured
vehicle. A disassembled R5 rifle, a
magazine, 15 live rounds, balaclavas and gloves were also found in
the boot of the Audi. A
Glock 9 mm pistol was found near its left
front wheel. That firearm was found to have been stolen during a
robbery in Johannesburg
in June 2008. A R5 rifle and an AK-47 assault
rifle were found about 700 m from the Audi.
[14]
After the appellants
were arrested, Joubert drove to the Soetdoring gate, where the
appellants had thrown weapons out of the Audi,
and cordoned off that
area. Two police officers who were not in the helicopter but
travelling in different police vehicles, saw
these weapons in the
road, which were about 500 m from where the helicopter had
landed at the second scene. Two LM 5 rifles
which Fidelity had issued
to the guards the morning of the attack on the convoy were found at
the Soetdoring gate. The guards had
been robbed of these rifles at
the first scene. Numerous firearms, magazines, parts of firearms and
ammunition were also found
at the place where the appellants had
thrown the weapons out of the Audi.
[15]
At the Soetdoring gate,
a civilian who had picked up the orange angle-grinder which the
appellants had thrown out of the Audi, handed
it to Warrant Officer
Boukes (Boukes). He also took Boukes to the place where he had picked
up the angle-grinder, which was further
from the second scene and
from where the Audi (which was stationary, after the appellants’
arrest) could not be seen. There
in the grass Boukes found the
loading mechanism of a LM 5 rifle, an AK-47 assault rifle, and a slot
and slot cover of a LM 5 rifle.
[16]
The state proved that a
number of spent cartridges found at the first scene were fired from
five weapons found at the second scene.
Although the defence
indicated that on this issue it would call an expert to contradict
the evidence of Captain Kekana, the state’s
ballistics expert,
no such evidence was presented.
The
appellants’ version
[17]
Initially only the
first appellant testified in his defence, after which the defence
closed its case. Subsequently the defence was
granted permission to
reopen its case and the second to fourth appellants testified. The
appellants’ evidence may be summarised
as follows. The first
appellant drove the Audi on 8 August 2008. He said that it belonged
to Mr Bennie Mohema (Mohema) who had
pledged it to him in 2007 for
R100 000. They had agreed that the first appellant could use the
vehicle in the meantime. The
appellants were going to Upington to get
spares for vehicles at metal scrap yards. En route, near Petrusburg,
they were stopped
by a motorist who had flashed his lights and told
them that there was an incident up the road and that he heard shots
being fired.
They pulled off the road, asked somebody for directions
and were directed to Immigrant road, but they got lost and drove down
a
gravel road, when they saw the helicopter. At that stage the
appellants turned into Bultfontein Road.
[18]
The appellants denied
that the persons in the helicopter signalled them to stop, that it
hovered across the road to get them to
stop or that they had fired
shots at the helicopter. Thereafter the second appellant was shot
from the helicopter and bled. He
told the first appellant to stop.
The latter made a U-turn and stopped next to a stationary vehicle
(the Hilux). The first appellant
said that he did not stop when the
second appellant had been shot because he thought that they were
being attacked. He also said
that they, together with the persons at
the Hilux, ran into the veld. However, the second appellant testified
that the fourth appellant
helped him out of the Audi and that they
did not run away, but stood against the Hilux. The fourth appellant
however said that
all of them ran away when they got out of the Audi.
They were arrested by the police who got out of the helicopter.
[19]
Apart from the first
appellant who said that he had some T-shirts and toiletries, none of
the appellants had any baggage and none
was found in the Audi. They
denied that the angle-grinder, explosives, firearms, balaclavas,
gloves, SIM card or the Nokia charger
were in the Audi and said that
they did not know where these items came from. When challenged as to
whether it was their contention
that the police had planted these
items, all of them replied that they did not know. The first and
third appellants said that they
would be lying to the court if they
tried to explain where the items came from. They denied that they
were involved at the first
scene where Mr De la Rey was shot and
killed. They also denied that they had thrown the angle-grinder or
firearms out of the Audi.
[20]
The court a quo held
that it was clear from the evidence that the attack on the convoy and
the crimes at the first scene were committed
by a group of robbers
acting in concert with the common purpose of armed robbery of the
armoured vehicle, and the persons who happened
to be there. The
appellants were part of that group. The court rejected their version
as ‘nonsense’. They were found
guilty of murder; four
counts of attempted murder; five counts of robbery with aggravating
circumstances; numerous contraventions
of the Firearms Control Act 60
of 2000 (the
Firearms Control Act); and
two contraventions of the
Explosives Act 26 of 1956 (the Explosives Act). The first appellant
was found guilty of theft of the
Audi.
The
applications for leave to appeal
[21]
The appellants applied
to the court a quo for leave to appeal against their convictions and
sentences. In that application they
simultaneously applied for the
recusal of the trial judge (Cillié J) on the ground that he
was biased; and for special entries
to be made on the record in terms
of s 317(1) of the Criminal Procedure Act 51 of 1977 (the Act),
in accordance with their
proposed special entries (the special
entries).
[22]
The trial judge
dismissed the application for his recusal. He granted the application
for the special entries; and granted the appellants
leave to appeal
to a full court of the Free State High Court against their
convictions and sentences.
[23]
The full court (Musi,
Naidoo JJ and Reinders AJ) did not decide the appeal against the
convictions and sentences. It held that the
order by Cillié J
was incompetent since appeals based on special entries under the Act
may not be referred to a full court;
and that it had no jurisdiction
to hear the appeal. It struck the appeal from the roll. The full
court said that the appellants’
right of appeal would not be
taken away if it did not decide the appeal, and that if they were not
satisfied with the outcome,
they would then have to approach this
Court, which would be another costly exercise.
[24]
Thereafter the
appellants applied to this Court for ‘leave to appeal’
against the convictions handed down and sentences
imposed by Cillié
J on 9 July 2013. The notice of motion states that ‘general
leave to appeal and leave to appeal
on Special Entries’ were
already granted to a full court; that the grant of the application
for the special entries ‘implied
that the appeal had to be
heard by the Supreme Court of Appeal’; and that the court a quo
had erred in granting leave to
a full court and ‘impliedly
granted leave’ to this Court. The application for leave to
appeal was referred for oral
argument in terms of s 17(2)(
d
)
of the
Superior Courts Act 10 of 2013
.
[25]
Leave to appeal however
had already been granted by the court a quo to a full court. The
special entries were properly before this
Court and Mr Shapiro for
the appellants, and Ms Giorgi for the state, agreed that it was in
the interests of justice that this
Court decide the appeal. They also
agreed that the application for leave to appeal to this Court be
construed as an application
in terms of
s 315(2)(
b
)
of the Act, ie an application to set aside the direction by the court
a quo that the appeal be heard by a full court; and that
it be
substituted with an order that the appeal be heard by this Court.
[1]
This Court granted the application under s 315(2)(
b
)
of the Act.
The
special entries
[26]
Section 317(1) of the
Act, in relevant part, reads:
‘
If an accused is of the view that any of
the proceedings in connection with or during his or her trial before
a High Court are irregular
or not according to law, he or she may . .
. apply for a special entry to be made on the record (in this section
referred to as
an application for a special entry) stating in what
respect the proceedings are alleged to be irregular or not according
to law,
and such a special entry shall, upon such application for a
special entry, be made unless the court to which or the judge to whom
the application for a special entry is made is of the opinion that
the application is not made
bona fide
or that it is frivolous or absurd or that the granting of the
application would be an abuse of the process of the court…’
[27]
The purpose of a
special entry is to raise an irregularity in connection with or
during the trial as a ground of appeal against
conviction under s
318(1) of the Act.
[2]
The latter section provides, inter alia, that if a special entry is
made on the record, the person convicted may appeal to this
Court
against his conviction on the basis of the irregularity stated in the
special entry. Recently this Court has held that the
sole purpose of
a special entry is to record an irregularity that does not appear on
the record.
[3]
As is shown below, all of the so-called special entries are not
proper special entries but grounds of appeal under s 316 of the
Act,
because they appear on the record. Some 60 years ago this Court held
that the special entry procedure is of vital importance
and should be
utilised where the irregularity does not appear on the record of the
proceedings.
[4]
So, the statement in the application for leave to appeal to this
Court that a special entry is ‘simply a method of applying
for
an appeal in regard to irregularities on or off the record’ is
quite wrong.
[28]
The proviso to s 322(1)
of the Act makes it clear that a conviction or sentence must not be
set aside or altered by reason of any
irregularity or defect in the
record or proceedings, unless it appears to the appellate court that
a failure of justice has in
fact resulted from such irregularity or
defect.
[5]
[6]
In
Naidoo
,
[7]
Holmes JA identified two broad categories of irregularities: those of
a serious and gross nature that per se vitiate a trial; and
those of
a less serious nature, where the court can separate the good from the
bad and is able to consider the merits of the matter.
[29]
The respects in which
the appellants contend that their trial was irregular and not
according to law, may be summarised as follows:
(a)
Mr De La Rey was a
white Afrikaans-speaking farmer like the trial judge, which ‘strongly
suggests bias in favour of the State
… against the Accused’.
(b)
The judge fell asleep
during the presentation of the evidence.
(c)
The trial judge
unfairly denied the appellants a postponement and forced their
counsel to continue with the trial without evidence
relating to
police radio communications that was unlawfully withheld from the
defence, which manifested bias against the appellants.
(d)
In recounting the facts
in the judgment, the trial judge ‘spoke as if the State case
had been proved even before he got to
the evaluation of the
evidence’.
(e)
Counsel for the state
misstated the position and misled the court regarding the relevance
of a video of the first appellant, made
after his arrest.
(f)
The court ‘misdirected
itself by omission in that almost all its attention is given to the
State case and the Court ignored
crucial and highly material elements
of the defence case.’
(g)
The court ‘misdirected
itself by omission regarding the improbability of Joubert …
not going to all the scenes,’
and ‘it is clear he did not
tell the truth when he said he did not go to the first scene.’
(h)
The court ‘ignored
and misdirected itself’ by failing to mention
Mbuli
,
[8]
regarding joint possession of the firearms, ammunition and
explosives, given that the appellants did not physically possess
these
items.
(i)
The court permitted a
police officer to make unfair attacks on the character of the first
appellant.
(j)
The appellants were
pointed out by a witness ‘for blatantly racist reasons.’
(k)
The court described the
appellants’ defence as ‘snert’.
(l)
The court allowed the
state advocate to put leading questions and the fact that there was
no objection in many instances, shows
that the defence counsel did
not provide the appellants with competent and effective
representation.
(m)
A dark coloured sack
lying on the road with other exhibits was deliberately excluded from
the exhibits by the police.
(n)
Captain Kekana, the
state’s ballistic expert, was not a member of the Association
of Firearm and Tool Mark Examiners, and
his expertise was poor.
(o)
The court overlooked
the fact that the SIM card was planted by the police in the Audi.
(p)
The court overlooked
the fact that the state did not prove that the Audi was stolen.
(q)
The record was at first
incorrectly transcribed; at some stages the interpretation was
faulty; and the court ‘unfairly rejected
an application that
the proceedings be conducted mainly in English’. This was
aggravated by the fact that the first appellant
is hard of hearing.
(r)
When the third
appellant testified, the interpreter said that Mr De la Rey had been
shot dead and somebody was going to be found
guilty of the murder.
(s)
Any other matter that
counsel for the appellants or the state ‘may wish to advance as
being relevant to the consideration
of the application.’
[30]
It is convenient to
deal firstly with special entry (s). On its own, it is virtually
meaningless and plainly impermissible. The
court a quo should not
have made this a special entry on the record.
[31]
None of the so-called
special entries (a) to (r), are true special entries as contemplated
in s 317(1) of the Act. The court
a quo should not have made
them special entries on the record. They are properly grounds of
appeal.
[32]
It must be stressed
that an application for a special entry is not there for the asking:
the requirements of s 317(1) of the Act
must be met, and the court
must satisfy itself that the application is bona fide and that it is
not frivolous, absurd or an abuse
of the process. The court a quo
failed to do so. All the so-called special entries should not have
been made. In some instances
they are simply not bona fide. In
others, they are frivolous and consist of points that lack any
substance and cannot be seriously
taken; or they are absurd in that
they are inconsistent with reason or common sense and unworthy of
serious consideration.
[9]
[33]
Special entry (a) has
no merit. The trial judge rightly posed the question to Mr Shapiro
whether the allegation of bias is not tantamount
to saying that no
white male Afrikaans-speaking judge should preside over a trial where
the accused are black. Mr Shapiro’s
answer effectively was
‘yes’ - there are other judges who can hear such matters.
The submission is untenable. But more
fundamentally, the allegation
does not begin to meet the threshold test for bias, namely ‘whether
a reasonable, objective
and informed person would, on the correct
facts, reasonably apprehend that the Judge had not or would not bring
an impartial mind
to bear on the adjudication of the case.’
[10]
Indeed, before us Mr Shapiro conceded that the allegations in (a)
would not justify an application for the recusal of the presiding
judge on the ground of bias. Moreover, he accepted that seen in
isolation, special entry (a) is offensive.
[34]
Special entry (b) lacks
merit and is an abuse of process. The trial judge, unsurprisingly,
found the allegation that he fell asleep
during the trial unfair and
embarrassing, and did not know how to respond to such a vague and
general allegation, raised more than
three years after the trial. The
appellants were represented by Mr Potgieter, who Mr Shapiro said was
an experienced counsel. The
record shows that Mr Potgieter defended
his clients and advanced their interests without fear. He no doubt
would have raised a
concern if the judge had nodded off. Further, a
reading of the evidence does not demonstrate a presiding officer who
is not following
the proceedings. On the contrary, the evidence of at
least 30 witnesses, shows that the judge was alert to and aware of
the evidence
being tendered. At the appropriate time he would ask
questions if the evidence was unclear.
[35]
There are numerous
examples of this but three will suffice. One of the guards testified
that a firearm with serial number 106355
was issued to him. Shortly
thereafter he said that the serial number was 104355. The judge said
that the latter number differed
from the one he had heard ie 106355.
He was right and the witness said that the correct number was 104355.
Secondly, when Joubert
was asked about the position he had taken in
the helicopter, the judge interrupted counsel and asked Joubert to
explain the seating
arrangements. Joubert replied that the helicopter
had no seats, that it was a shell, as he put it, and that four
officers were
sitting on the floor at each door. Thirdly, when the
second appellant testified, Mr Potgieter put it to him that he had
met the
other appellants in Bloemfontein on 8 November 2008. The
judge pointed out that the date could not be right because the
appellants
were in custody. Again, he was right. Aside from this, the
appellants can point to no prejudice, irregularity or failure of
justice
because the judge allegedly fell asleep. As is demonstrated
below, the appellants’ convictions are entirely sustainable on
the evidence.
[36]
Special entry (c) is
not bona fide and a distortion of the facts. On no less than three
occasions, the appellants applied for the
postponement of the trial,
during which evidence was heard, causing a delay of some nine months
in the commencement of the trial.
The record shows that in those
applications, the judge was extremely patient and tolerant,
particularly in the light of the reasons
for the postponement: the
appellants sought radio control records relating to police
communications and information as to when
the helicopter had taken
off and landed; and the first, second and fourth appellants wanted to
consult jointly in prison (the third
appellant was released on bail).
In any event, the police were not in possession of the records
relating to radio communications,
which were held by an independent
service provider. Mr Potgieter informed the trial court that he had
taken steps to obtain these
records from the service provider, which
he wanted to use in cross-examination of the guards. Nothing further
was heard from Mr
Potgieter in this regard.
[37]
The police witnesses
testified about the radio communications they received concerning the
incident and on this score, their evidence
was not seriously
challenged. The defence sought the records of these radio
communications in an attempt to show what the security
guards had
told Joubert concerning the vehicles used by the robbers. Mr
Potgieter however had in his possession Joubert’s
witness
statement with which he could confront the security guards on this
issue. Moreover, the trial judge informed Mr Potgieter
that if
necessary, any security guard could be recalled for cross-examination
should the records of the radio communications reveal
discrepancies
in their version. The appellants plainly were not prejudiced.
[38]
Special entries (q) and
(r) are not bona fide, and are frivolous and absurd. The appellants
have not stated how the initial incorrect
transcription of the record
is alleged to be irregular and not according to law. The proceedings
were interpreted in the mother
tongue of the appellants, and it was
unnecessary to conduct them in English. The parts of the record upon
which Mr Shapiro relies
are a distortion and do not support the
allegations in these special entries. When Mr Potgieter informed the
court that the appellant
had complained that the interpretation was
incorrect in some respects, the interpreter was replaced. Once during
the proceedings,
Mr Potgieter informed the court that the first
appellant did not have his hearing aid, but that he was willing to
proceed with
the trial and would indicate to Mr Potgieter if anything
needed to be explained. The Judge noted this and said that if
necessary,
the first appellant could sit nearer (to aid his hearing).
Subsequently, there was no complaint during the trial about the first
appellant’s hearing.
[39]
The remaining special
entries are to a large extent interrelated and concern the trial
court’s judgment on the merits and
will be dealt with in the
analysis of the merits of the appeal.
Analysis
[40]
Regarding the merits,
there can be no question that the robbers had agreed to attack the
convoy; that the attack was carefully planned;
that all the robbers
participated in its execution; and that each robber associated
himself with the acts perpetrated by the others
- the murder,
attempted murder and armed robbery of innocent civilians at the first
scene. This alone is sufficient to establish
common purpose.
[11]
The appellants foresaw and reconciled themselves with the possibility
that the execution of the armed robbery by their co-conspirators
-
who were heavily armed with assault weapons - could result in the
death of a person. They were thus rightly convicted of murder.
[12]
[41]
But even in the absence
of an agreement to attack the convoy, the evidence conclusively shows
that the appellants were present at
the first scene where the said
acts of violence were being committed; that therefore, they knew or
must have been aware of these
attacks; that they intended to make
common cause with the robbers who committed those acts; and that they
manifested this intention
by themselves performing acts of
association with the conduct of the other robbers.
[13]
[42]
The ineluctable
inference to be drawn from the facts is that the appellants were part
of the robbers wearing balaclavas and armed
with rifles and AK-47
assault weapons at the first scene. The evidence of the police who
pursued them in conjunction with the retrieval
of the items referred
to earlier, lead to the compelling conclusion that the persons who
had been travelling in the Audi and who
had been arrested by the
police, namely the appellants, were the individuals involved in the
murder and robberies at the first
scene.
[43]
Then there is the
appellants’ evidence. Unsurprisingly, they could not explain
how the incriminating items came to be in the
boot of the Audi. They
did
not
suggest that the police had planted them there. And it was never put
to Joubert that he, or any officer under his command, had
‘planted’
any evidence at the second scene. So there is no room for that
contention. In fact, the first and third appellants
were not willing
to proffer any explanation for the presence of the incriminating
items, for fear of ‘lying’. The Corsa
following them at
high speed is also unexplained. The appellants’ version that
they were on their way to Upington but got
lost and ended up on a
gravel road and that they did not try to dispose of the angle-grinder
and weapons, is highly improbable,
let alone reasonably possibly
true. It may safely be rejected as false. And there is nothing wrong
in characterising their version
as nonsense – in Afrikaans,
‘snert’.
[14]
[44]
Mr Shapiro’s
theory that the police planted the SIM card in the Audi and that
Joubert was dishonest when he said that he never
went to the first
scene, strains credulity. The helicopter and its occupants were
nowhere near the first scene: the unchallenged
evidence is that
Joubert saw the Audi for the first time some 90 km away from the
first scene. And the facts show that none of
the police officers who
collected the evidence at the second scene, were present at the first
scene. The theory implies a conspiracy
of epic proportions. It would
mean the following. The police somehow obtained the cellular
telephone and Vector 9 mm pistol issued
to a guard (of which he had
been robbed) from the robbers (who had escaped) and placed the SIM
card of that phone and the pistol
in the Audi. In a moving scene, the
police then obtained the angle-grinder, and LM 5 rifles (of which the
guards at the first scene
had been robbed) from the robbers (who had
also escaped) and planted these items at two separate places on the
road where they
were found. They also planted explosives and fuses in
the Audi, coincidentally of the same type as those used at the first
scene.
The pursuit of the appellants in a helicopter and their
attempts to get rid of the angle-grinder and weapons are all a
figment
of Joubert’s imagination. The theory is fanciful and
absurd.
[45]
The appellants’
possession of the firearms and explosives may be dealt with briefly.
This is not a case where a single possessor
exercised possession of
firearms on behalf of a group. Instead, all the appellants at the
relevant times had the intention of jointly
possessing the firearms
and explosives, as a group.
[15]
This was established by the evidence. There were no competing claims
to the firearms and explosives. The appellants had the requisite
intention: firstly, they all knew of the existence of the firearms
and explosives in their possession and secondly, that they were
exercising control over them.
[16]
Their joint possession as a group and common state of mind is
buttressed by their attempts to get rid of the firearms. When they
were being pursued by the helicopter, the Audi stopped and two of
them got out so as to dispose of the angle-grinder and an AK-47
assault weapon. Later they threw more firearms out of the windows of
the Audi. All of them attempted to flee once the Audi had
been
stopped. The only reasonable inference to be drawn from these facts
is that the appellants had the common intention to possess
the
firearms and explosives.
[46]
What remains is the
charge of theft against the first appellant. The state proved that
the Audi was one of two Audi Q7’s stolen
from Port Elizabeth
harbour on 28 June 2007. The first appellant’s initial
explanation to the police was that he had borrowed
the vehicle from
Mr Thabo Stimela (Stimela). The police followed up that information,
which revealed that Stimela had disappeared
and that a warrant for
his arrest had been issued. However, during the trial the first
appellant’s explanation for his possession
of the Audi changed.
It was put to the state witnesses, and the first appellant testified,
that the Audi belonged to Mohema who
had pledged it to him in
September 2007 for R100 000. As the court a quo noted, according
to the appellant, Mohema had coincidentally
passed away.
[47]
On his own version the
first appellant had driven the Audi and was in possession of it some
three months after it was stolen in
Port Elizabeth. The nature of the
stolen thing is an important element in determining what constitutes
recent possession. If it
is of a kind which is usually, and can
easily and quickly be disposed of, anything beyond a relatively short
period generally will
not constitute recent possession.
[17]
The thing in this case - a brand-new, expensive sports utility
vehicle - is not one which can easily and rapidly pass from person
to
person. Aside from this, the unchallenged evidence is that two number
plates displaying different registration numbers, not
linked to any
owner on the police registration system, were found in the boot of
the Audi. Now if the first appellant’s explanation
is true that
Mohema, supposedly the owner of the Audi, pledged the vehicle to him,
why would these number plates be necessary at
all? And why would they
be in the Audi, if not to be used illegally? All of this, coupled
with the first appellant’s different
explanations for his
possession of the Audi, in my view, is sufficient to justify the
conviction of theft.
[48]
On a conspectus of all
the evidence, what all of this shows, is that special entries (d) to
(p) are frivolous and absurd. Even considered
as grounds of appeal,
they have no merit. They are unsustainable on the evidence. The state
proved its case beyond reasonable doubt
and accordingly, the
appellants were rightly convicted.
Sentence
[49]
The appellants were
sentenced as follows:
Count 1 - theft: the first appellant: 15 years’
imprisonment;
Counts 11, 19, 22 and 25 - attempted murder: 7 years’
imprisonment on each count;
Counts 13-15 and 17-18 - robbery with aggravating
circumstances: 15 years’ imprisonment on each count;
Counts 16 and 20 - contravention of
s 120(6)(a)
of the
Firearms Control Act: 3 years
’ imprisonment on each count;
Count 21 - murder: life imprisonment
Count 23 - contravention of s 27(1) of the Explosives
Act 26 of 1956: 6 years’ imprisonment;
Count 24 - contravention of s 6(1) and (2) of the
Explosives Act 26 of 1956: 1 year imprisonment;
Count 26 - contravention of
s 3
of the
Firearms Control
Act 60 of 2000
: 15 years’ imprisonment;
Count 27 - contravention of
s 90
of the
Firearms Control
Act 60 of 2000
: 1 year imprisonment; and
Count 28 - contravention of
s 4
of
the
Firearms Control Act 60 of 2000
: 15 years’ imprisonment.
[50]
The court a quo noted
that in terms of the provisions of the
Correctional Services Act 111
of 1998
, the sentences imposed on all the charges run concurrently
with the life sentence imposed on the appellants, by the operation of
law.
[18]
It ordered, in terms of s 280 of the Act, that all the sentences
imposed in respect of all the other charges should also run
concurrently
with the sentence of life imprisonment,
[51]
It is trite that
sentencing lies in the discretion of the trial court. In the absence
of material misdirection by the trial court,
an appellate court
cannot approach the question of sentence as if it were the trial
court and then substitute the trial court’s
sentence simply
because it prefers to.
[19]
[52]
The court a quo imposed
the minimum sentences prescribed in the
Criminal Law Amendment Act
105 of 1997
in respect of the charges of murder, robbery with
aggravating circumstances, possession of semi-automatic and automatic
firearms,
and possession of explosives. After considering the factors
required to be taken into account in the imposition of sentence,
including
the appellants’ personal circumstances, the court a
quo came to the conclusion that there were no substantial and
compelling
circumstances to deviate from the prescribed minimum
sentences.
[53]
In this regard, the
court a quo said that the robbery was planned, and brazenly executed
on a public road by some 20 heavily armed
robbers who did not
hesitate to indiscriminately shoot, and, I would add, kill an
innocent civilian. They terrorised defenceless
motorists to overcome
any resistance. Cash in transit heists are becoming an epidemic in
this country and communities expect the
courts to impose severe
sentences for these crimes. All the appellants had completed high
school and earned an income. They committed
the crimes out of greed.
The seriousness of the crimes outweighed their personal
circumstances.
[54]
The reasoning of the
court a quo cannot be faulted. This Court has held that the
prescribed minimum sentences should not be departed
from lightly and
for flimsy reasons. The legislature has ruled that these are the
sentences that ordinarily, and in the absence
of weighty
justification, should be imposed for the specified crimes, unless
there are truly convincing reasons for a different
response.
[20]
This is not such a case. The sentences are appropriate.
[55]
In the result, I make
the following order:
1.
The order of the court
a quo granting leave to appeal to a full court is set aside and
replaced with the following:
‘
The
appellants are granted leave to appeal to the Supreme Court of Appeal
against their convictions and sentences.’
2.
The appeal is
dismissed.
_________________
A
Schippers
Acting
Judge of Appeal
Appearances
For
Appellant: S Shapiro
Instructed
by:
Shapiro
Attorneys, Johannesburg
c/o
Tshangana Attorneys, Bloemfontein
For
Respondent: S Giorgi
Instructed
by:
The
Director of Public Prosecutions, Bloemfontein
[1]
Section 315(2) of the Act, in relevant part, reads:
‘(
a
) If an application for leave to appeal in a
criminal case heard by a single judge of a provincial or local
division …
is granted under section 316, the court or judge
or judges granting the application shall, if it, he or she or, …
they
… is or are satisfied that the questions of
law and of fact and the other considerations involved in the appeal
are of such a nature that the appeal does not require the attention
of the Supreme Court of Appeal, direct that the appeal be heard
by a
full court.
(
b
) Any such direction by the court or a judge of a
provincial or local division may be set aside by the Appellate
Division on application
made to it by the accused or the
attorney-general or other prosecutor … after the direction
was given.’
[2]
A Kruger Hiemstra’s Criminal Procedure
(Issue 8) at
31-29.
[3]
S v Staggie
[2011] ZASCA 88
;
2012 (2) SACR 311
(SCA) para 16.
[4]
R v Nzimande
1957 (3) SA 772
(A) at 774B.
[5]
Section 322(1) of the act reads inter alia as follows:
‘In the case of an appeal against a conviction . . . the court
of appeal may-
(a)
allow the appeal if it thinks that the judgment of
the trial court should be set aside on the ground of a wrong
decision of any
question of law or that on any ground there was a
failure of justice; or
(b)
give such judgment as ought to have been given at
the trial or impose such punishment as ought to have been imposed at
the trial;
or
(c)
make such order as justice may require:
Provided that, notwithstanding that the court of appeal is of
opinion that any point raised might be decided in favour of the
accused, no conviction or sentence shall be set aside or altered by
reason of any irregularity or defect in the record or proceedings,
unless it appears to the court of appeal that a failure of justice
has in fact resulted from such irregularity or defect.’
[6]
Hiemstra’s Criminal Procedure
fn 2 (Issue 8) at 31-30
and 31-31 (Issue 5).
[7]
S v Naidoo
1962 (4) SA 348
(A) at 354D-F.
[8]
S v Mbuli
2003 (1) SACR 97 (SCA).
[9]
S v Halgryn
2002 (2) SACR 211
(SCA) para 3;
S v Cooper
& others
1977 (3) SA 475
(T) at 476C.
[10]
President of the Republic of South Africa & others v South
African Rugby Football Union & others
[1999] ZACC 9
;
1999 (4) SA 147
(CC)
at 148G para 48; 1999 (10) BCLR 1059.
[11]
C R
Snyman Criminal Law
6
th
ed (2014) at 259.
[12]
S v Majosi & others
1991 (2) SACR 532
(A) at 536I-537E.
[13]
S v Mgedezi & others
1989 (1) SA 687
(A) at 705I-706B.
[14]
F F Odendal and R H Gouws
Die HAT
(Verklarende Handboek van die Afrikaanse Taal)
4ed (2000)
defines ‘snert’ as ‘onsin’. In English,
‘nonsense’ or ‘rubbish’.
[15]
Mbuli
fn 8 above para 71.
[16]
Snyman
fn 11 at 261.
[17]
S v Skweyiya
[1984] ZASCA 96
;
1984 (4) SA 712
(A) at 715C-E.
[18]
Section 39(2)(
a
)(i) of the
Correctional Services Act.
[19]
S v Malgas
2001 (2) SA 1222
(SCA) para 12.
[20]
Malgas
fn 17 para 25.