S v Crossberg (440/07) [2008] ZASCA 13; [2008] 3 All SA 329 (SCA), 2008 (2) SACR 317 (SCA) (20 March 2008)

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[2008] ZASCA 13
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S v Crossberg (440/07) [2008] ZASCA 13; [2008] 3 All SA 329 (SCA), 2008 (2) SACR 317 (SCA) (20 March 2008)

THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 440/07
In
the matter between:
JEWELL
CROSSBERG
Appellant
and
THE
STATE
Respondent
_____________________________________________________
Coram
:
Navsa, Brand, Ponnan, Mlambo JJA et Malan AJA
Date of hearing:
21 November 2007
Date of delivery:
20 March 2008
Summary
: Disregarding
the impact of at least 13 missing statements made by witnesses to the
police, evidence not supporting conviction of
murder ─ police and
State’s duty to make full disclosure discussed ─ conviction of
murder substituted with conviction of culpable
homicide ─ sentence
─ factors to be considered discussed.
Neutral citation:
Crossberg
v S
(440/2007)
[2008]
ZASCA 13
(20 March 2008)
_____________________________________________________
JUDGMENT
_____________________________________________________
NAVSA JA
NAVSA JA:
[1] On 5 April 2007 the appellant, Mr Jewell Crossberg, a
farmer and game lodge owner, was convicted in the Pretoria High
Court
(on circuit at Polokwane) of the murder of Mr Jealous Dube (the
deceased), a farm worker. The conviction followed on the
trial
court’s conclusion that on 21 June 2004, at Vogelenzang
farm (the farm) in Musina, Limpopo, the appellant had,
at close
range, intentionally shot and killed the deceased. The appellant was
also convicted on four counts of attempted murder,
in that, he had
during the same incident, fired shots in the direction of four of the
deceased’s co-workers.
[2] The appellant was sentenced to 20 years’ imprisonment on the
murder charge and five years’ imprisonment on each of the four
counts of attempted murder. The trial court ordered that the
sentences run concurrently. Thus, the appellant was sentenced to an
effective term of 20 years’ imprisonment.
[3] The appellant appeals against his convictions with the leave of
this court. In heads of argument submitted on his behalf the
appellant’s principal ground of appeal was premised on a
fundamental irregularity, namely, the destruction or loss of 13
witness
statements in the police docket, as a result of which, so it
was submitted, his right to a fair trial in terms of s 35(3) of the
Constitution had been infringed. He contended that he had been
deprived of the opportunity to make a full answer and defence ─
that his right to adduce and challenge evidence fully had been
fatally impaired.
1
This is an aspect to which I will return later in this judgment.
[4] The appellant contended further that, aside from this fundamental
irregularity, the convictions were in any event liable to be
set
aside on the basis that the state had, on each of the counts, failed
to prove his guilt beyond a reasonable doubt. It is perhaps
necessary
at the outset to dispel the fundamental misconception that the
appellant’s defence was that he had mistaken the deceased
for a
baboon. The true nature of his defence, the evidence adduced by the
appellant and the State and the legal issues are dealt
with
hereafter.
Concession on behalf of appellant
[5] The appellant repeatedly and consistently admitted having fired
two shots in the vicinity of where the deceased and his co-workers
were present, stating that he had been unaware of their presence at
the relevant time. When the appellant first notified the police
telephonically about the deceased’s death, he immediately informed
them of this fact. Captain Johan Boshoff, a policeman who testified
in support of the appellant’s case, stated that, when he arrived at
the scene on the day of the shooting, the appellant had handed
over
his revolver, confirmed that he had discharged two shots in the
vicinity and informed him that someone had died. It appears
that this
version was repeated in a written ‘warning’ statement the
appellant supplied to the police.
[6] In amplification of his plea of not guilty to all the charges,
the appellant admitted, yet again, that he had fired the two shots.
He denied, however, having directed those shots at any person.
[7] The appellant testified that on the fateful day, whilst driving
his motor vehicle on the farm and seated behind the steering
wheel,
he had blindly (‘blindelings’) fired two shots into the bush in
an attempt to scare off baboons that had crossed his path.
According
to the appellant, the baboons were a nuisance and repeatedly caused
damage to structures at the game lodge on the farm.
He had fired the
two shots shortly after sunrise whilst travelling eastwards and the
sun had impaired his view.
[8] From the outset the appellant did not contest that one of the
shots fired by him had struck and killed the deceased. The
appellant’s
revolver is a .38 calibre Smith & Wesson, which,
according to an expert witness, Mr Lucas Visser, has an effective
range of up
to one kilometre. The shots admittedly fired by the
appellant were discharged at a time when hunters and their guides
were active
on the farm. Furthermore, the shots were fired whilst he
was approximately 300 to 400 metres away from a homestead and a
workers’
compound.
[9] The night before the shooting the appellant had warned 12 farm
workers entrusted to him (to whom I shall refer for want of a
better
expression as ‘guest workers’), not to walk around on the farm
unaccompanied, because hunters were in the vicinity and
they (the
workers) would be at risk of their lives. As will become clear later
in this judgment, the appellant ought to have been
aware of the
presence on the farm of some of the workers who were not in his
immediate presence at the time he fired the shots.
[10] Significantly, counsel for the appellant informed us that before
the commencement of the trial the appellant had unsuccessfully
attempted to agree with the State to plead guilty to culpable
homicide.
[11] Considering the cumulative effect of what is set out in the
preceding paragraphs, counsel for the appellant conceded before
us
that, on the appellant’s own version, maintained consistently
before and during the trial and on appeal, and thus not tainted
in
any way by the irregularities referred to earlier, he fell to be
convicted of culpable homicide.
[12] For a proper appreciation of the concession and of the issues to
be determined in the present appeal it is necessary, at this
stage,
to deal with the State’s versions of events.
The State’s version of events
[13] As best as can be discerned from the evidence adduced by three
eyewitnesses, discounting contradictions, the essence of the
State’s
version, is set out in the paragraphs that follow. The three
witnesses, all farm workers who are Zimbabwean citizens, were
Messrs Happias Mpofa, Elia Ngulube and Kenneth Molambo.
[14] On Saturday 19 June 2004, their employer, Mr Titling,
transported them to the farm because he managed an experimental
State
farm that could not be left unsupervised and because his attendance
was required elsewhere for two weeks. They were taken to
the farm to
be employed by the appellant, as guest workers, whilst Mr Titling
was away. They were to be employed to unearth
stones or tree stumps.
The three witnesses were part of a total of 12 workers brought to the
appellant’s farm by Mr Titling.
[15] As indicated above, the appellant admitted that on Sunday
20 June 2004 the 12 workers were warned by him not to move
around unaccompanied on the farm because of the risks attendant upon
hunting activities. According to the version proffered by two
State
witnesses the appellant threatened to shoot them should he find them
walking around unaccompanied. Mr Ngulube went somewhat
further. What
the appellant threatened to do, he said, was to shoot them if they
worked badly. Moreover, Mr Ngulube testified, this
threat had been
issued in the most blatant and offensive racist terms ─ involving
the use of what is euphemistically referred to
as ‘the k-word’.
The warning was admitted by the appellant. The threats were denied ─
including the use of the racial epithet.
[16] On Monday 21 June 2004, at approximately 07h00, the
appellant’s driver, who was referred to by witnesses only as
Never,
arrived in a motor vehicle at the workers’ compound on the farm and
instructed two of the guest workers, referred to only
as Target and
Mandla, to accompany him to a site where stones were to be unearthed.
[17] Shortly after Never’s departure the appellant arrived at the
compound in his Land Cruiser motor vehicle. It was described
as a
Landcruiser 4x4 vehicle with a cab and an open back on which goods or
people could be transported. Having ascertained that Never
had
already departed, the appellant instructed the remaining guest
workers to board the vehicle and sit in the back. Messrs Mpofa
and Ngulube were two of five workers
2
who sat in the back. The remaining five workers, who were still in
the process of gathering tools and wheelbarrows, were left behind.
It
does not appear that they were left behind deliberately, but rather
that the appellant departed hastily, before everyone was on
board.
[18] The appellant drove a short distance before they encountered
Never, whose vehicle had run out of petrol. The appellant was angry
and ordered Never to leave the farm, together with his family and
possessions. The appellant then drove to where the stones were
supposed to have been unearthed. The appellant asked why there were
no stones. The workers told him that they had been unable to
find
any. It seems that the workers had no experience in this regard and
were more accustomed to unearthing tree stumps.
[19] The appellant turned his vehicle around and drove back in the
direction of the compound. On the way there they drove past the
spot
where Never’s vehicle had stalled. The appellant instructed Never
to board the vehicle. Never obeyed the instruction and they
drove
back towards the compound. The three State witnesses testified that
along the way they encountered the five workers
3
who had been left behind, walking along the farm road with their
tools and wheelbarrows. Upon the vehicle’s approach, because of
the
narrowness of the road, the five workers split into two groups; three
went to the right and two to the left. According to Mr
Molambo he was
one of those on the right. Immediately before the workers split into
two groups, they were approximately seven metres
away from the
vehicle.
[20] The appellant brought the vehicle to a halt, pulled out his
revolver, extended his arm through the open window and discharged
at
least five shots in the direction of the three workers on the
right-hand side. They ran off into the bush.
[21] The two persons on the left-hand side were the deceased and a
worker referred to as Onisimo. The two of them moved towards the
vehicle, as if to board. The appellant immediately alighted and moved
around the nose of the vehicle towards its left-hand side.
He pointed
the revolver at them and discharged a shot whilst they crouched. He
fired a second shot which struck the deceased. At
the time that he
fired those two shots the appellant was three to five metres away
from the two of them. After being struck the deceased
groaned,
struggled to get up and fell to the ground. Thereafter Onisimo
immediately boarded the back of the vehicle. Without any
further
exchange of words the appellant re-entered the cabin of his Land
Cruiser and drove to the compound leaving the deceased lying
there.
[22] The following part of Mr Mpofa’s testimony is important:
‘
Nou betreffende die skietery self … [d]ie persoon
aan die linkerkant het beweeg in die rigting van die voertuig toe die
eerste skoot
afgevuur was --- Ja.
Maar hulle moes toe baie, baie naby aan die voertuig
gewees het, is dit nie so nie? --- Ja u edele want hulle het op die
bakkie gekom
om in te klim. Hulle was te naby die bakkie gewees.
En verstaan ek nou ook korrek, hulle het in die rigting
dan van die beskuldigde beweeg. --- Ja, indien die beskuldigde by sy
kar was
so hulle was op pad na hom toe want hulle was op pad na die
kar toe gewees.
…
--- [Die appellant] het uit die voertuig uitgeklim en
aan sy neus gaan staan.
--- [H]y het reg voor hulle gestaan en skiet.
…
Mnr Mpofa, en ten spyte hiervan dat die ander man wat
saam met … die oorledene was, ten spyte daarvan dat daar pas nou ‘n
skoot
na hulle twee geskiet is en sy maa[t] nou pas raakgeskiet is,
op ‘n afstand wat u sê lyk vir my so t[w]ee of drie meter,
kom hy nou doodluiters om die bakkie van die beskuldigde. --- Ja, een
wat nie raak getref was nie, hy het wel in die beskuldigde
se bakkie
kom inklim.
En hy was glad nie bang vir die beskuldigde wat pas sy
maat hier reg langs hom geskiet het nie? ---Dit is hoe hy opgetree
het u edele.
Hy het eenvoudig in die beskuldigde se bakkie kom klim.’
[23] The relevant part of Mr Ngulube’s evidence concerning the
shooting is as follows:
‘
So they approached the vehicle where the accused
(inaudible)? --- My lord, ja they were coming from behind, from the
tail of the vehicle
around the vehicle trying to get to the inside of
the vehicle my lord.
…
Yes my lord. They did not flee. They ran straight to the
danger point. --- Ja they did not run away from the danger, but to
the vehicle.
…
Now tell me, after the first shot was fired, what
exactly did the two people do? --- They went down on their abdomen.
So they lay down flat on the ground? --- They lay down
and crawled.
In which direction did they crawl? --- They were
crawling to the side of the vehicle my lord.
In the same direction in which they had moved prior to
the first shot? Did they now crawl in the same direction in which
they ran
to before the shot was fired? --- They were (inaudible)
getting into the mouth of the gun.
…
Now, the question is are you saying that they were
running…they were crawling in the same direction in which they were
originally
running before they were shot at? Towards the back of the
vehicle? --- It is so that they were crawling towards the tail of the
vehicle.
…
How far from the side of the vehicle were they more or
less? From the left side of the vehicle? ---They were at a distance
of five
and less, metres from the vehicle.
…
Where were they at the time when they were crawling? ---
When they were crawling they were near to the nose of the vehicle my
lord.
…
And then could you just again tell us, after they
crawled for about a metre or so did both of them stand up, or did
only one of them
stand up? --- Both of them stood up.
And did they then start running again or what? What
specifically happened then? --- A second gunshot was fired my lord.
Is that so. When the second shot was fired were they
already running again? Or what exactly was the position then? ---
(Inaudible)
after they stood up, before they can run away, then a
second gunshot was fired my lord.
…
Who was in front and who was behind? ---The one that was
in front of the other one Onisimo and then Jealous Dube. It is the
one that
was running from behind and (inaudible) that was struck by a
gunshot.
And did he then fall down again, after the second shot?
--- He fell unto the ground and started groaning.’
[24] According to both Mr Mpofa and Mr Ngulube, there was
no vegetation between the appellant, on the one side, and Onisimo
and
the deceased, on the other which might possibly have obscured the
view. Furthermore, according to Messrs Mpofa and Ngulube there
was no
vegetation between their vantage point and the deceased and Onisimo
as they were being shot at.
[25] After the shooting the appellant and his passengers immediately
returned to the compound. The workers were instructed to prepare
to
leave for a spot on the farm where they would now be required to
unearth tree stumps. They were instructed to fill containers
with
water as there was no water where they were to work later that
morning. Importantly, the workers were asked to count themselves
to
see if everyone was there ─ this aspect was never challenged by the
appellant. The workers were also asked to recall the instruction
the
appellant had given them the night before.
[26] Thereafter the appellant departed with Never, informing the
workers that the latter would return shortly to take them to the
new
work site. The workers filled the containers and waited. Never
returned to the compound and together with them started walking
towards the site at which they were to unearth the tree stumps.
Whilst they were on their way Mr Mpofa told Never that he was not
prepared to go to work until they established what had happened to
the deceased.
[27] Never suggested that they report the matter to the police as he
feared for their safety should they return to the place where
the
shooting incident had occurred. After a short while Lloyd and Target
who had fled, arrived and informed the others that the deceased
had
been killed and was lying alongside the road. They all then proceeded
to make their way to the police station. Upon their arrival
they
discovered that the appellant had already reported the matter to the
police.
[28] Mr Molambo was one of the workers who had been left behind when
the appellant first collected the five workers at the compound.
He
testified that after they had gathered the tools and wheelbarrows he,
Lloyd and Target had attempted to catch up to their co-workers
on the
Land Cruiser. They stood on the right-hand side of the vehicle. Mr
Molambo testified that he and the other two were twenty
metres away
from the Land Cruiser when the appellant stopped the vehicle and said
something in a language they did not understand.
The appellant then
fired three shots towards the right-hand side. Mr Molambo and
the other two fled. He heard two further shots
being discharged. He
testified that he went directly back to the compound and did not
return to the scene. Lloyd and Target arrived
at the compound a while
later.
[29] Mr Molambo testified in addition that, shortly before the
appellant had fired the shots, the five workers who had been left
behind and who were now in sight of the Land Cruiser went right up to
it because they had all intended to board. According to Mr
Molambo,
when they returned to the compound, Onisimo had no knowledge of what
had become of the deceased, except that the deceased
had fallen down
alongside the motor vehicle.
[30] Under cross-examination, Mr Molambo said that when they arrived
at the spot at which they were to unearth the tree stumps he
had
asked the others where the deceased was. The only response he
received was from Never, who said that he did not know. Mr Molambo
then said that he wanted to establish what had happened to the
deceased. The other guest workers all agreed. Never, on the other
hand, suggested that they go to the police.
[31] The State did not call Onisimo, Never, Lloyd and the other guest
workers as witnesses, nor was any explanation proffered nor
evidence
tendered as to why this was not done. It is now necessary to turn to
the appellant’s version of events.
The appellant’s version of events
[32] The appellant admitted that he was angry when he encountered
Never who, for the umpteenth time, had run out of petrol. Whilst
the
appellant was transporting Never and the five workers back to the
compound he saw a troop of baboons a short distance away. He
testified that he had discharged a shot to his left in the
circumstances and for the reason set out in para [7] above. He denied
that he had shot directly or intentionally at anyone.
[33] None of the three witnesses who testified in support of the
State’s case saw the baboons allegedly spotted by the appellant.
[34] Shortly after firing the two shots the appellant saw a man
emerge, running from the bush, approaching the Land Cruiser from
the
left. He stopped the vehicle and asked who this individual was. His
passengers told him that it was one of their co-workers.
The man
boarded the vehicle and they drove to the compound.
[35] The appellant confirmed that, after he and the workers had
arrived at the compound, he told them to fill containers with water,
which was unavailable at the new work site. He asked the guest
workers to tell him how many of them were on the farm. Thereafter
the
appellant departed from the compound, accompanied by Never,
ostensibly to deal with the bakkie that had stalled. On the way there
the appellant noticed, notwithstanding the dense bush, that there was
something lying in the veld. He stopped, investigated, and
discovered
the body of the deceased. There was no pulse and it was clear that
the person lying there was dead. The appellant instructed
Never to
return to the compound and to transport the workers to the spot where
they would unearth tree stumps. He told Never that
he, in turn, would
report the matter to the police.
The objective facts
[36] The appellant reported the matter to the police shortly after
7h00 on the morning of 21 June 2004 and took them to the scene
where
the body of deceased was found. Superintendent Nephawe, who at that
time was the Station Commander in Musina, was part of the
first
contingent of police who arrived at the scene. He testified that he
and others had secured the scene and that police work was
done
strictly according to procedure. He handed over the scene to the
fingerprint expert and official photographer, Inspector Louw.
[37] Inspector Louw, the fingerprint expert and official police
photographer, testified that on the morning of the shooting incident
the scene had been handed over to him. He had taken photographs of
the body of the deceased from different angles. The photographs
were
presented as evidence in the trial.
[38] On 9 July 2004, Inspector Louw was required to
photograph points on the farm as indicated by Messrs Ngulube, Mpofa
and Molambo. It will be recalled that Mr Molambo had been part
of the group on the right-hand side of the vehicle at the time
of the
shooting incident. These photographs were helpful during the trial
and were of assistance to us in better appreciating the
terrain and
the scene at which the shooting took place. I interpose to state that
according to Inspector Louw the witnesses had consulted
with each
other during the pointing out session, in contravention of police
rules in this regard.
[39] The photographs show the dense bush and grass on either side of
the farm road along which the appellant drove. One of the photographs
shows the position of the body of the deceased in relation to the
position of the Land Cruiser.
[40] When the police visited the scene, shortly after the incident
had been reported, they found the body of the deceased lying
approximately
16 metres away from the spot which Messrs Mpofa and
Ngulube had indicated to the police photographer as that from which
the appellant
had fired the shots. They had not told the police
photographer that the appellant had alighted from the vehicle prior
to firing the
shots. The deceased’s body was 12-15 metres into the
veld from the edge of the farm road along which the appellant’s
vehicle
had been travelling. They had also indicated to the police
photographer where Onisimo had been at the time that the appellant
had
discharged the shots that led to the deceased’s death. This was
a position 16.5 metres away from the deceased’s body and
approximately
as deep into the veld as that body. The deceased’s
body was lying in dense bush and it was not visible from the road.
There were
no signs that it had been moved there from another
location. There were no drag marks nor was there a trail or any other
sign of
blood. There was no indication that the deceased had crawled
to that position. They found one set of footprints leading towards
the
body of the deceased and another set of the same prints leading
in the opposite direction, towards the road. It was accepted during
the trial that those footprints were left by the appellant.
[41] From the post-mortem report it is clear that the cause of death
was an extensive intra-pulmonary haemorrhage caused by a gunshot
wound that had pierced the body from one end of the side of the chest
through to the other. The post-mortem report states that the
bullet
‘may have traversed and transected one of the large pulmonary veins
resulting in the massive haemorrhage’. Regrettably,
the pathologist
who conducted the post-mortem examination was not called to testify.
[42] The appellant’s revolver with the ammunition and the shells of
two discharged bullets that had been handed to the police was
examined by the ballistics expert, Mr Visser. He confirmed that
he found four rounds of live ammunition and two spent cartridges
in
the revolver’s chambers. His tests on the two cartridges
established signs that two bullets had indeed been fired by that
firearm.
Mr Visser also confirmed that the revolver was a
six-shooter – that it could only fire a maximum of six shots before
it had
to be reloaded. Unlike a pistol, a revolver does not eject
cartridges. They remain in the revolver’s chambers after shots have
been fired.
[43] Mr Visser was unable to say from the wounds sustained by
the deceased how the deceased and the appellant were positioned
in
relation to each other at the time that the fatal shot was fired. He
testified, however, that from the position of the wounds
it appeared
that the deceased’s arms were away from his body at that time so as
to allow the bullet to pierce his body just under
the armpit and exit
through the other side of the chest without striking any other part
of his body. He testified that it was unlikely
that the deceased was
standing in a normal position at the time he was shot.
[44] It is abundantly clear from the evidence of Superintendent
Nephawe and of Inspector Louw and from the photographs that the
deceased’s
body was not visible from the road. The body was well
into the veld and it certainly was nowhere near the position
described by Messrs
Mpofa and Ngulube, during their testimony, as
being the place at which the deceased was struck by the bullet fired
by the appellant.
[45] Inspector Louw testified that although the police were
principally concerned to look for human tracks, he could confirm
that,
when they first visited the scene on the day of the shooting
incident, there were animal tracks in the vicinity, including baboon
tracks.
The docket and the missing statements
[46] When Mr Mpofa testified, he was initially adamant about
the number of statements he had supplied to the police. He insisted
that the statement that he had provided on 21 June 2004, the day of
the incident, was the
only
statement he had made. He testified
that the statement was complete and satisfactory. He was happy with
its contents.
[47] When, under cross-examination, it was pointed out to Mr Mpofa
that the statement disclosed to the defence by the prosecutor
was
dated July 2004 and had been taken by a policeman who had only
later been assigned to the case, Mr Mpofa recanted and admitted
that
he had made a second statement. When he was asked what had happened
to the first statement, he said that only the police would
know.
[48] At that stage counsel representing the appellant sought access
to the investigation diary. Under further cross-examination,
Mr Mpofa
was now adamant that he had supplied only two statements to the
police. He testified that he had not read his first
statement ─ he
had only been asked to sign it after he had communicated his version
of events to the policeman who had noted what
he had said. Mr Mpofa
accepted that this policeman would have written down everything he
had communicated.
[49] Mr Mpofa testified that his second statement had been read
back to him. Counsel for the appellant had somehow obtained
another
statement made by Mr Mpofa to the police on 25 June 2004.
This statement was not in the police docket. When
this statement was
shown to him, Mr Mpofa recalled that he had made such a statement.
Thus, as it turns out, he had made three statements
to the police. It
appears that the same holds true for a number of other witnesses.
[50] It is clear that at least 13 statements had not been disclosed
by the police to the prosecutor and in turn therefore not to
the
appellant, including the first statements made by all the guest
workers. The whereabouts of all these statements are still unknown.
[51] Superintendent Ramakadi, who testified in support of the State’s
case, had been directed to take over the investigation from
a
provincial level because of concerns about the integrity of the
investigation, flowing from perceptions that the appellant was
being
favoured ─ some thought he had obtained bail too readily and
speedily on the day of the shooting incident and was being assisted
by local police. It appeared that the racial overtones the case
seemed to be assuming had caused tensions between the police
investigating
the incident and their superiors. Unfortunately, as
this case shows, race continues to divide and bedevil our society.
[52] It was clear from the cross-examination of Superintendent
Ramakadi that the investigation diary had, from the outset and also
after he had taken over the investigation, not been properly
maintained and that proper entries, particularly concerning the
taking
of statements, had not been made.
[53] Superintendent Ramakadi testified that when he took over the
investigation, all the witness statements that had been obtained
by
police personnel before him were in the docket. He had received
written instructions to obtain further statements and to retake
others. It is important to note the reasons he supplied for the
‘retaking’ of statements:
‘
Okay, I have many reasons (inaudible) one of them
being that some of the statements that were taken, there was no logic
of events
that happened.
Yes? --- Some of them were not sworn in. When reading
some of them, we could not say (inaudible) the writer of the
statement wanted
to say, they were not clear.
Any other reason? --- Okay, some of the statements were
like, seeming they were like witnesses from other witnesses, so it is
confirmed
when you ask them, it was like, one witness would be taking
a statement from the other.’
[54] At another stage of his testimony he said the following:
‘
Some of the statements were not written in a logic
way, so how can I take further statements when I do not even
understand the first
statements.’
[55] It is important to appreciate that the first statements were a
contemporaneous record of events by the witnesses concerned.
[56] Superintendent Ramakadi was unable to provide an explanation for
the missing statements. It was clear when he was cross-examined
that,
not only were entries concerning the taking of statements not made in
the investigation diary, but also that entries were made
of
statements even before they had been taken.
[57] When counsel for the respondent put it to Superintendent
Ramakadi that Mr Molambo had disassociated himself from a material
part of one of his statements (where he said that he had seen the
appellant shoot at Onisimo
and the deceased), Superintendent Ramakadi responded as follows:
‘
Yes. The second statement, that A22, was on the A12,
where the witness lied, not on the second statement.’
[58] More importantly, when the possibility was put to Superintendent
Ramakadi that the information recorded in the police docket,
under
the title ‘Sensational Crime report’ (namely, that it had been
alleged that on the day in question the appellant had been
driving on
his farm and had fired two shots in the general direction of what he
thought was a wild animal) had been obtained from
witnesses, he
responded as follows (the comment to which he responded is included):
‘
[I] am going to argue Superintendent, that those
witnesses put those facts into statements, and that is the reason why
those statements
were destroyed by the police. It is the absolute
contradiction to the present versions. --- Okay, it can be so, but
you can look
it in the other (inaudible) that maybe the person who
compiled it, got his information from the accused himself. Because in
the first
photo album it was compiled when the accused was there, and
he was the one pointing out.’
Of course, the two possibilities
are
those pointed out by
Superintendent Ramakadi.
Evaluation
[59] Leaving aside, for the moment, the question of the impact of the
missing statements, I turn to an evaluation of the evidence
presented
by the state.
[60] It is clear from what is set out above that the State’s
version of events, in the first instance, is totally at odds with
the
objective facts. Importantly, the relevant points shown to the
photographer by the three main witnesses and reflected on the
photographs presented in evidence, are at odds with their own
testimony of how the shooting had occurred.
[61] It must be emphasised that it was not the state’s case that
the appellant had, subsequent to the shooting, moved the deceased’s
body to the spot where it was found and photographed. It was never
put to the accused or Captain Boshoff in cross-examination that
the
scene had been tampered with. All the objective facts and the
evidence of Superintendent Nephawe and Inspector Louw point to
the
contrary. In fact, if regard is had to the photographs taken by
Inspector Louw on 9 July 2004, when the three witnesses
did
the pointing out, the position of where the deceased and Onisimo had
been at the crucial time accords with the position in which
his body
was found. Therefore, accepting ─ as we have to ─ that he was
fatally struck by the bullet at the place where his body
was
subsequently found, the description provided by Messrs Mpofa and
Ngulube of how the appellant deliberately shot at the deceased
and
Onisimo at very close range, away from obstructing vegetation, must
be rejected.
[62] Of course the appellant had the opportunity to reload his
revolver before the police arrived, but there is no evidence that
he
did so. It is common cause that when the police received the
appellant’s revolver it contained only four live rounds of
ammunition,
indicating that only two bullets had been discharged. It
was never put to the appellant that he had tampered with the revolver
so
as to dupe the police into believing that only two bullets had
been discharged.
[63] Whilst Mr Ngulube testified that he was uncertain about the
number of shots fired by the appellant, Mr Mpofa was emphatic that
the appellant had fired seven shots in quick succession, which, as
the expert testified, was physically impossible with the revolver
in
question.
[64] Cumulatively, the objective evidence decisively lends a lie to
the state’s version of how the shooting had occurred.
[65] Furthermore, the state’s version of how the shooting had
occurred is at odds with the probabilities. It is highly unlikely
that two persons being shot at, who have the opportunity of fleeing
into dense vegetation, would choose rather to run towards the
barrel
of the gun. It is as unlikely that Onisimo would thereafter board the
vehicle, seemingly without any fear. Upon their return
to the
compound Onisimo, who was right next to the deceased when he was shot
and fell and groaned, was the person least aware of
the deceased’s
fate ─ one would have expected the opposite if the shooting had
indeed occurred as described. The same is true
of the alleged other
enquiries concerning the deceased’s fate by those who observed the
shooting from the best possible vantage
point, the elevated position
in which they were on the back of the Land Cruiser.
[66] Importantly, Mr Molambo testified that, when he enquired about
what had happened to the deceased, not one of the guest workers
responded and that Never, who had been with them and who would have
had as good a vantage point as anyone, had replied he did not
know.
[67] Moreover, on the state’s version, the guest workers continued
to prepare for the work they had been instructed to perform
by
filling containers and walking for at least a while in the direction
of the new work-site before they voiced their concerns about
the
deceased, and none said anything about the horrible deed they had
just observed. This too is most improbable.
[68] On the state’s description of events the appellant behaved
like a lunatic, shooting at a number of persons without reason
and
killing another at close range in the most wanton fashion. Yet, when
the appellant departed with Never, not one of the guest
workers
thought of escaping from the farm immediately. The reason supplied
was that they were afraid. That fear however, evaporated
when they
thought that they should report the deceased’s death to the police.
They made their way to the police station in great
haste and
apparently without experiencing any problems.
[69] It is also highly improbable that the appellant would behave in
this most blatantly murderous fashion in full view of witnesses,
almost all of whom were strangers and immediately thereafter report
the matter to the police, well-knowing that his version was false
and
would probably be contradicted. This is particularly so, if one
considers that, on the State’s version of events, there appears
to
have been no apparent trigger for the appellant’s alleged
behaviour. If some of the guest workers were pushing wheelbarrows
and
carrying tools when they encountered the appellant, it makes the
appellant’s behaviour all the more bizarre.
[70] Even if one were not to regard the missing statements as a
fundamental irregularity, they nevertheless still cast a pall over
the acceptability of the evidence of the three main State witnesses.
On Superintendent Ramakadi’s evidence the first - most
contemporaneous
- statements that were taken were mostly illogical,
incomplete and appeared to have been taken with the witnesses acting
in concert
and influencing each other. How then can one conclude that
any statement taken thereafter would be more reliable? No explanation
was tendered by the State as to what became of those statements. The
conclusion that those statements did not suit the state’s
case is
irresistible.
[71] I have not dealt with the numerous contradictions between the
three main witnesses, nor have I dealt with other unsatisfactory
aspects of the evidence of each. In the case of Mr Mpofa disputes
arose with the interpreter, which as the record shows, reflect
badly
on him. In relation to the number of statements which he and the
other State witnesses had made he was shown to be untruthful
and on
the whole was an evasive witness. Having regard to the fundamental
problems with the state’s version as described in the
preceding
paragraphs, I do not intend to devote any further time to these
aspects. It is clear that the court below erred in accepting
the
evidence of the three main witnesses. Their evidence at all levels
lacked credibility, was improbable, at odds with the objective
evidence and wholly unreliable.
[72] In a criminal trial the state bears the onus in respect of all
the material elements that are required to be proved to secure
a
conviction on a stated charge. On the evaluation of the evidence set
out above, it is clear that the convictions on the murder
charge and
the four counts of attempted murder are liable to be set aside. The
state has failed to prove that the appellant intentionally
shot and
killed the deceased and that he fired the shots at the others in the
manner described by the three main witnesses.
The State’s duty to make disclosure
It is necessary to consider briefly the duties of the state and of
the police and the role of courts in relation to police dockets
and
the obligation of full disclosure.
[73] In
Shabalala and Others v Attorney-General, Transvaal, and
Another
[1995] ZACC 12
;
1996 (1) SA 725
(CC) the Constitutional Court dealt with
s 25(3) of the Interim Constitution, in terms of which accused
persons are guaranteed the
right to a fair trial. The court in that
case applied the section in the context of the State’s claim to a
blanket privilege against
disclosure. It considered judgments from
comparable jurisdictions where an accused’s right to a fair trial
is guaranteed. The
Canadian case of
R v Stinchcombe
(1992) 68
CCC (3d) 1 (SCC) (18 CRR (2d) 210) was cited with approval and
applied. I intend to deal with that and other relevant case
law in
due course.
[74] The principles enunciated by the Constitutional Court in
Shabalala’s
case remain the same under the present
Constitution. At para 50 the following appears:
‘
If the conflicting considerations are weighed, there
appears to be an overwhelming balance in favour of an accused
person’s right
to disclosure in those circumstances where there is
no reasonable risk that such disclosure might lead to the disclosure
of the identity
of informers or State secrets or to intimidation or
obstruction of the proper ends of justice. The “blanket docket
privilege”
which effectively protects even such statements from
disclosure therefore appears to be unreasonable, unjustifiable in an
open and
democratic society and is certainly not necessary.’
[75] In
Stinchcombe
the Supreme Court of Canada held that an
accused’s right to make full answer and defence, which is one of
the pillars of criminal
justice, requires full disclosure by the
Crown of all material it proposes to use at the trial and especially
all evidence which
may assist the accused even if the Crown does not
propose to adduce it. A trial judge has the power of reviewing,
should the issue
be raised with him or her, a refusal or failure to
make disclosure. Courts of appeal must, of course, consider whether
there is a
reasonable possibility that such failure or refusal has
affected the outcome or impacted on an accused’s rights to a fair
trial
and, when necessary, in the interests of justice, order a new
trial. In this regard the discussion in para 76 to 79 hereafter is
of
importance.
[76] In
R v Carambetsos
(2004) 117 CRR (2d) 1 (SCC) the
Supreme Court of Canada re-emphasised that the purpose of a
prosecution is not to obtain a conviction
but rather to lay before a
court what the Crown considers to be credible evidence relevant to
the charged offence. The obligation
of the police and the Crown to
make full disclosure is set out in some detail.
4
There are a number of cases in other jurisdictions to similar effect
and which deal with consequences of a failure to make full
disclosure.
5
[77] Police and prosecution services have duties of disclosure
imposed by the Constitution with which they must comply. How then
does an appellant deal with a failure to disclose? In
Taillefer
the Canadian Supreme Court, at para 81, said the following:
‘
First, the onus is on the accused to demonstrate that
there is a
reasonable possibility
that
the verdict might have been different but for the Crown’s failure
to disclose all of the relevant evidence. The accused does
not have
the heavy burden of demonstrating that it is probable or certain that
the fresh evidence would have affected the verdict…As
this court
held in
Dixon
:
“[i]mposing a test based on reasonable possibility strikes a fair
balance between an accused’s interest in a fair trial and
the
public’s interest in the efficient administration of justice. It
recognises the difficulty of reconstructing accurately the
trial
process and avoids the undesirable effect of undermining the Crown’s
disclosure obligations...” ‘
[78] At para 82 of that case the following appears:
‘
Second. Applying this test requires that the
appellate court determine that there was a reasonable possibility
that the jury, with
the benefit of all the relevant evidence, might
have had a reasonable doubt as to the accused’s guilt…[A]n
overall effort must
be made to reconstruct the overall picture of the
evidence that would have been presented to the jury had it not been
for the Crown’s
failure to disclose the relevant evidence. Whether
there is a reasonable possibility that the verdict might have been
different must
be determined having regard to the evidence in its
entirety.
[79] In
Taillefer
it was made clear that the determination of
whether there exists a reasonable possibility that the fresh evidence
would have an impact
on the result of the trial process should be
dealt with as a separate issue from the assessment of the effect of
the failure to disclose
on the overall fairness of the trial. At para
84 in relation to the fairness of the trial the court said the
following:
‘
The reasonable possibility of affecting the overall
fairness of the trial “must be based on
reasonably
possible uses of the non-disclosed evidence
or
reasonably
possible
avenues of investigation that were closed to the accused as a result
of non-disclosure…” That would be the case, for
example, if the
undisclosed statement of a witness could reasonably have been used to
impeach the credibility of prosecution witnesses.
The conclusion
would necessarily be the same if the prosecution fails to disclose to
the defence that there is a witness who could
have led to the timely
discovery of other witnesses who were useful to the defence.’
[80] Each case must of course be considered on its own merits. A
retrial is not ordered merely on an assertion that the State’s
failure to disclose impacted on the original trial. In the present
case, whilst the statements themselves are not available for
scrutiny,
it is clear from the evidence adduced by the State (and
referred to earlier) that they are highly relevant to the outcome and
to
the issue of a fair trial in relation to the murder charge. They
go to the true strength of the state’s case against the appellant
and they impact on credibility. The State presented dubious reasons
for the retaking of the statements and offered no reasonable
explanation as to why so many statements were missing. The disclosure
that numerous statements were taken and were missing came only
after
State witnesses had been ‘caught out’. As stated earlier, entries
were made in the investigation diary of statements even
before they
had been taken. The other factors set out in para 69 above are
significant. In the totality of the circumstances of the
present
case, the conclusion that the first set of statements did not suit
the State’s case and that they are missing by design
rather than
misfortune is compelling. Of course, I hasten to add, counsel for the
State who appeared before us is blameless. It is
the manner in which
the police investigation was conducted and the manner in which the
police dealt with the statements and the witnesses
that is under
scrutiny. Police conduct in this case falls far short of what is
required of our system of criminal justice.
[81] For the reasons set out in para 72 above the murder conviction
can in any event not be sustained and it is therefore not necessary
to explore the issue of non-disclosure any further.
Culpable Homicide
[82] As stated earlier, the appellant chose voluntarily, from the
outset and throughout the investigation and the trial, to inform
the
police and the court about the manner and circumstances in which he
discharged the shots. Furthermore, he attempted unsuccessfully
to
agree with the State to plead guilty to culpable homicide. The
surrounding circumstances set out in paras 5 to 9 are largely common
cause. The irregularities discussed above, thus, do not intrude upon
the question of whether the appellant is, on his own version,
consistently maintained even during the appeal, guilty of culpable
homicide. This, as was pointed out in para 10, was correctly conceded
by appellant’s counsel.
[83] Culpable homicide is the unlawful, negligent killing of another.
Negligence is assessed objectively, according to the standard
of the
reasonable person. For a conviction of culpable homicide it must be
shown beyond a reasonable doubt that a reasonable person,
in the same
circumstances as an accused, would have foreseen the death of a
victim as a consequence of his or her conduct and that
a reasonable
person would have taken steps to guard against the foreseeable
death.
6
If an accused did not take such reasonable steps, then he or she has
been negligent in regard to the victim’s death.
[84] In the present case a reasonable person in the appellant’s
position would have foreseen the death of the deceased as a result
of
discharging a firearm in the manner and in the circumstances set out
earlier. That notwithstanding, the appellant took no steps
to guard
against that consequence. The concession that the appellant was
liable, on his own version, to be convicted of culpable
homicide was
therefore rightly made.
Sentence
[85] Counsel for the appellant vigorously submitted that, in the
event that the murder and attempted murder convictions were set
aside
and substituted by one of culpable homicide, the matter should not be
referred back for sentencing. All the available material
to inform a
proper sentence, so counsel contended, was before this court and it
should therefore impose the sentence itself. I agree.
[86] In order to controvert the suggestion of a racist motive for
firing the shots, the appellant relied on the evidence of
Mr Condo Mulaudzi,
a Musina councillor. Mr Mulaudzi
testified that he has known the appellant for approximately thirty
years. Even before 1994
the appellant contributed in cash and kind
towards the upliftment of sections of the disadvantaged black
community. He provided
maize meal to pre-schools and other schools.
He contributed refreshments and catering for matric functions. The
appellant also contributed
to sport functions.
[87] According to Mr Mulaudzi, the appellant financially
assisted the poor with funerals and he provided free meat from
carcasses
that hunters had left behind. At a time when it was
unpopular, he provided monetary assistance for the burial of an
anti-apartheid
activist.
[88] During questioning by the trial court, it became clear that
Mr Mulaudzi was the appellant’s business associate. This
however does not detract from Mr Mulaudzi’s unchallenged
evidence concerning the appellant’s good deeds.
[89] On the morning in question the appellant was clearly angry at
Never. He appears to have been further annoyed by the fact that
the
workers were not going to be of assistance in unearthing stones. He
had clearly impressed upon them the day before that he was
the owner
of the farm and that they were to obey his rules.
[90] When he collected the workers at the compound, he appeared
impatient and drove away without checking to see if they had all
boarded. He was behaving in a macho fashion. He was clearly intent
upon impressing his authority. This was evident when he ordered
Never
to leave the farm with his family and possessions.
[91] In discharging the firearm in the circumstances referred to, he
was behaving, to coin language from modern cinema, in ‘Rambo-like’
manner.
[92] In
S v Naidoo
2003 (1) SACR 347
(SCA) at 358e-f, this
court said the following;
‘
[I]t is undoubtedly so that the reasonably
foreseeable consequences of an accused’s conduct do play a role in
assessing the gravity
(“criminal blameworthiness”) of the offence
even where the conduct was negligent and not intentional and that
there is no arbitrariness
in that.’
[93] In
Naidoo
at 359b-f, it was emphasised that, in murder
and culpable homicide, there is the unique and specific element of
the loss of human
life. This court distinguished (at 361h-362e)
between cases of culpable homicide where the loss of life was as a
result of a momentary
lapse in concentration, on the one hand, and
where it flowed from an intentional act such as assault, on the
other. In
Naidoo
the facts fell between the two postulates.
[94] In
S v Nyathi
2005 (2) SACR 273
(SCA), this court dealt
with the question of moral blameworthiness and stated that, where a
negligent act causes death, the punishment
should acknowledge the
sanctity of human life (at 277e-i).
[95] In
S v Nxumalo
1982 (3) SA 856
(A) at 861h, Corbett JA
said the following:
‘
It seems to me that in determining an appropriate
sentence in such cases the basic criterion to which the Court must
have regard is
the degree of culpability or blameworthiness exhibited
by the accused in committing the negligent act. Relevant to such
culpability
or blameworthiness would be the extent of the accused’s
deviation from the norms of reasonable conduct in the circumstances
and
the foreseeability of the consequences of the accused’s
negligence. At the same time the actual consequences of the accused’s
negligence cannot be disregarded. If they have been serious and
particularly if the accused’s negligence has resulted in serious
injury to others or loss of life, such consequences will almost
inevitably constitute an aggravating factor, warranting a more severe
sentence than might otherwise have been imposed.’
[96] In
Nyathi
, Conradie JA considered translating degrees of
negligence into years in custody. He thought it useful to have
regard, in a general
sort of way, to sentences imposed by courts. His
examination of the relevant cases is repeated hereafter.
[97] The cases considered were serious road accident cases. In
S v
Greyling
1990 (1) SACR 49
(A), a 19-year-old who took a corner
too fast collided with a concrete wall, killing four of five young
women who had been conveyed
on the back of his pickup. His sentence
of five years’ imprisonment of which one year was suspended was on
appeal altered to one
of 12 months’ imprisonment. The court
reaffirmed that in cases of gross negligence, imprisonment, even for
a first offender, may
be warranted. The youthfulness of the accused
was taken into account (at 56f-g).
[98] In
S v Keulder
1994 (1) SACR 91
(A), the accused was an
alcoholic who was convicted of culpable homicide committed whilst
driving in a heavily intoxicated condition.
His sentence of two
years’ imprisonment was set aside and the matter remitted to the
trial court to consider the imposition of
a sentence of correctional
supervision. The accused had two previous convictions for
road-related alcohol offences and his personal
circumstances weighed
heavily with the Appeal Court.
[99] In
S v Cunningham
1996 (1) SACR 631
(A), the accused
collided on the wrong side of the road with cyclists in an
intersection. He abandoned his appeal against his sentence
of three
years’ correctional supervision in terms of s 276(1)(
h
)
of the Criminal Procedure Act 51 of 1977 (the Act) and two years’
imprisonment, suspended. The court remarked that he was right
to
abandon his appeal in this regard.
[100] In
S v Naicker
1996 (2) SACR 557
(A), the regional
magistrate’s sentence of two years’ imprisonment, confirmed by
the Provincial Division, was set aside on appeal
and the matter
remitted to the trial court for it to consider the imposition of
correctional supervision. This court disagreed with
the
characterisation of the conduct in question as gross negligence ─
the appellant had moved at high speed (he had been racing
another
vehicle) into the slow lane obstructed by a tanker. The court
observed, however, that he was clearly negligent in failing
to keep a
proper look-out before moving into the left-hand lane.
[101] In
S v Birkenfield
2000 (1) SACR 325
(SCA), the
appellant rode his motorcycle very fast and without stopping at an
intersection controlled by a stop sign, thereby killing
a pedestrian
as well as his pillion passenger. In confirming the sentence of five
years’ imprisonment in terms of s 276(1)(
i
) of the Act
this court remarked that it was ‘well within reasonable limits’
(at 329g).
[102] In
S v Sikhakhane
1992 (1) SACR 783
(N), a head-on
collision was caused by the appellant’s negligent overtaking. The
negligence was considered to have been of a high
degree. Two
passengers and a driver in the approaching vehicle were killed and a
motorcyclist seriously injured. A sentence of two
years’
imprisonment was confirmed on appeal.
[103] In
S v Omar
1993 (2) SACR 5
(C), a driver strayed onto
the wrong side of the road. He appeared to have lost concentration or
to have fallen asleep. The court
held that a sentence of correctional
supervision in terms of s 276(1)(
h
) was appropriate.
[104] In
S v De Bruin
1991 (2) SACR 158
(W), the accused had
entered an intersection when the red light was against him. He had
consumed alcohol before driving. He had three
previous convictions
for driving under the influence of liquor or for driving with a
higher than permitted blood alcohol level. A
sentence of four years’
imprisonment was reduced to three years’ imprisonment.
[105] In
S v Ngcobo
1962 (2) SA 333
(N), the accused had
driven his motor vehicle into a crowd in a well-lit street, killing
four and injuring 24 people. On appeal,
one year of a three year
custodial sentence was suspended. He was held to have been grossly
negligent by driving too fast whilst
not keeping a proper lookout.
[106] Aside from cases bordering on recklessness, negligent conduct
related to the driving of motor vehicles resulting in the loss
of
life appears to attract a lesser degree of moral opprobrium.
[107] In
S v Zake
2007 (2) SACR 475
(E) the accused, a
26-year-old man, was a referee at a soccer match who happened to have
a firearm in his tracksuit pants whilst
officiating. After he had
awarded a penalty he was surrounded by players contesting his
decision. As they advanced towards him,
he felt threatened and fired
a shot which struck someone in the hand, exited and struck the coach
of one of the teams killing him.
The accused had been in custody for
just over one year and had one previous conviction for assault in
respect of which he was cautioned
and discharged.
[108] In
Zake
the court had regard to the following dictum in
R v Karg
1961 (1) SA 231
(A) at 236B-C:
‘
It is not wrong that the natural indignation of
interested persons of the community at large should receive some
recognition in the
sentences that Courts impose, and it is not
irrelevant to bear in mind that if the sentences for serious crimes
are too lenient,
the administration of justice may fall into
disrepute and injured persons may incline to take the law into their
own hands. Naturally,
righteous anger should not becloud judgment.’
[109] The accused in
Zake
had been handed the firearm for
safekeeping but the court took into account against him that his
possession of the firearm was illegal.
It also took into account that
a second victim was injured. In respect of the accused’s conviction
of culpable homicide the court
imposed a sentence of six years’
imprisonment of which two years were conditionally suspended for five
years. The circumstances
in
Zake
are closer to the facts of
the present case. It should be borne in mind that in
Zake
the
accused was responding to the aggression displayed by players who
were angered by the penalty decision.
[110] Each case, must of course, be decided on its own facts. At the
time of the commission of the offence the appellant was 46 years
old.
He is married with three dependents. The appellant paid for funeral
expenses in relation to the burial of the deceased. He had
also paid
to transport the deceased’s body back to Zimbabwe. The appellant,
as described above, involved himself in charitable
and developmental
work. He appears to be a prosperous businessman and is clearly a
valuable member of society.
[111] At this stage, however, it is necessary to properly
characterise the appellant’s conduct. He fired the shots in the
circumstances
referred to above. The conduct in question was directed
at imposing the appellant’s authority over the farm and the guest
workers
in a cavalier fashion. Accepting that he was intent on
scaring off baboons, he could easily have done so with due regard to
the safety
of those entrusted to him and the presence of people on
the farm. Firearms, as South Africans know all too well, are lethal
weapons.
The revolver in question, to the knowledge of the appellant,
was deadly effective over a long distance. It was submitted on behalf
of the appellant that, in the totality of the circumstances, taking
into account the seriousness of the offence, the community interest
and the personal circumstances of the accused, a wholly suspended
sentenced is justified. I disagree.
[112] The appellant was transporting farm workers who were under his
supervision and protection. He was in charge of a farm on which
there
was human activity. In my view, having regard to all the
circumstances, a custodial sentence is called for. The degree of
negligence,
considering that the appellant ought to have been more
concerned about the safety of all the employees entrusted to him, is
high.
His conduct was deliberately aggressive and without due regard
to the danger to human life on the farm. On the appellant’s own
version of events, if he was indeed shooting to scare off baboons,
nothing prevented him from firing into the air.
[113] Counsel for the State submitted that, in the event of the
conviction on murder being set aside and substituted with a
conviction
of culpable homicide, a sentence of imprisonment in terms
of s 276(1)(
i
) of the Act should follow.
[114] In my view, however, considering the appellant’s conduct, the
community interest and the personal circumstances of the appellant,
an appropriate sentence is five years’ imprisonment, two years of
which are suspended on condition that the appellant is not convicted
of culpable homicide, assault with intent to do grievous bodily harm
or any contravention of the
Firearms Control Act 60 of 2000
,
committed during the period of suspension.
_________________
M S NAVSA
JUDGE OF APPEAL
CONCUR:
BRAND JA
PONNAN JA
MALAN AJA
MLAMBO JA:
[
115] I have had the
benefit of reading the judgment of my colleague, Navsa. I am
constrained to disagree with his conclusions. I do
not agree that the
evidence of the three eyewitnesses called by the state lacked
credibility and that it was unsatisfactory and wholly
unreliable. In
my view all the evidence properly analysed, shows that the appellant
intentionally shot and killed the deceased (Jealous
Dube) and that
when he fired shots at the other complainants he also intended to
kill them. The sole question in dispute is his state
of culpability
(if any) when he fired the shots. I hold that his claim that there
was a troop of baboons at the place and time is
not only false beyond
reasonable doubt, but is irreconcilable with anything less than a
murderously intentional or reckless shooting
by him at his human
victims. I also hold the view that the appellant received a fair
trial despite the inability of the prosecution
to provide him with
the original witness statements.
[116] A convenient starting point is the evidence.
It is trite that in determining the guilt or innocence of an accused
all the evidence
must be taken into account. Cameron JA articulated
the correct approach in
S v M
2006 (1) SACR 135
(SCA) at para [189] thus:
‘
The point is that the totality of the evidence must
be measured, not in isolation, but by assessing properly whether in
the light
of the inherent strengths, weaknesses, probabilities and
improbabilities on both sides the balance weighs so heavily in favour
of
the State that any reasonable doubt about the accused’s guilt is
excluded’.
See also
S v Gentle
2005 (1) SACR 420
(SCA) at 433h-I.
[117] I intend to deal only with those facts
which, in my respectful view, have not been accorded their
appropriate impact by my colleague
Navsa. The version of the state is
that the deceased was one of five employees who were encountered on
the farm road carrying their
work tools when the appellant shot at
them. The state’s version is further that when Never returned to
the compound in his bakkie,
after the discovery of the deceased’s
body by the appellant, he returned with the tools left behind by the
five employees when
the shooting started. Incidentally this evidence
about the tools was not challenged in cross-examination. On the other
hand the version
presented by the appellant is that he saw a troop of
baboons crossing his path and, without stopping his vehicle, blindly
fired two
shots on either side to scare them off because of their
nuisance tendencies.
[118] A critical factor is that the state’s
version excludes the presence of baboons in the vicinity of the
shooting whilst the
appellant’s version excludes the presence of
the five employees. My colleague Navsa is correct that the appellant
never said he
mistook the five employees for baboons. His version
properly understood excludes the presence of the five employees in
that vicinity
when he fired the shots. Perhaps it is prudent to quote
the appellant’s words:
‘
Toe ons naby die huis kom, plus minus so 300 meter
van die huis af het daar ‘n klomp bobbejane voor my oor die pad
gehardloop. Ek
het my rewolwer by my gehad, ek het hom uitgehaal en
ek het ‘n skoot na regs, sommer net in die veld ingeskiet en ‘n
skoot na
links, net om hierdie bobbejane te verwilder.’
And further:
‘
Ek het op geen mense daar geskiet, ek het geen mense
gesien ook daar nie u edele.’
[119] In my view the presence of the deceased’s
body as well as the undisputed recovery of work tools in that
vicinity fortifies
the state’s eyewitness’ version that there
were five employees on the scene, the deceased being one of them, and
no baboons.
It is stating the obvious that humans walk upright whilst
baboons use all four limbs. In addition, humans are much larger than
even
the largest baboon. Objectively speaking therefore humans can be
effortlessly distinguished from baboons. Therefore the presence
of
the deceased’s body at the location, having succumbed to a bullet
fired by the appellant, as another objective fact strengthens
the
state’s version that he was one of the five employees who were shot
at by the appellant at that location.
[120] Clearly therefore one must conclude that as
a matter of fact there were no baboons at that location but the five
employees.
It is simply implausible that the early morning sun may
have affected the appellant’s view. He was emphatic that he did not
see
the five employees there but only baboons crossing his path. This
leads one to the question whether he could reasonably possibly
have
thought there were baboons – even though in fact there weren’t.
He, as already stated, disavowed this and one is in any
way impelled,
on the strength of the objective facts already alluded to
,
which one must accept, to rule out this possibility beyond reasonable
doubt. The trial judge (Bosielo J) expressed himself thus in
this
regard:
‘
While dealing with the general probabilities of this
matter, it is my view that the version of the accused, as he put
forward to this
court is not only improbable but is false beyond
reasonable doubt. I already alluded to the fact that I had an
opportunity to look
at the various photographs in the photo album,
Exhibit A, which depicts the scene of the shooting incident.
It is for me unthinkable that any person, sitting in a
motor vehicle, driven by the accused, driving on that road, at 07:00
or 08:00
in the morning, could not have seen five adult persons
walking directly in front of him towards him. In simple terms, in my
view,
that version defies simple logic and common sense.’
This also decisively rules out the simultaneous
presence of baboons in that location. In my view the absence of
baboons exposes the
lie in the appellant’s version of why he
discharged his firearm purportedly to scare off baboons. The
eyewitnesses are all
ad idem
that the five employees on the road, had split into two groups of two
and three and that the appellant first pointed his firearm
at the
group of three and fired shots at them and that they ran away
(Kenneth Molambo, Talent and Lloyd). They also say he then turned
his
firearm on the two on the other side of the road (Onisimo and the
deceased) and fired further shots at them. One of those shots
struck
the deceased.
[121] In my view it is inconceivable that the
appellant’s version can be reasonably possibly true whilst also
accepting the state
’
s
version ‘with which it is irreconcilable’. See
S
v Van Aswegen
2001 (2) SACR 97
(SCA) at
para [8] where this proposition, by Nugent J in
S
v Van der Meyden
1999 (1) SACR 447
(W)
at 449c-450b, is endorsed. The
Van der
Meyden
proposition simply put is that:
(a) Evidence which incriminates the accused and evidence which
exculpates him cannot both be true.
(b) A court bases its conclusion, whether to convict or acquit, on
all the evidence not on only part thereof.
(c) In analysing evidence a court may find that some of it is false,
that some of it is unreliable, and that some of it may be possibly
false or unreliable but none of it may simply be ignored.
See also
S v Trainor
2003 (1) SACR 35
(SCA) at 40 para 8 and 41 para 9;
S
v Liebenberg
2005 (2) SACR 355
(SCA) at
para 15.
[122] My colleague Navsa’s primary basis for
rejecting the state’s version is that the eyewitness’ testimony
in court is contradicted
by the objective facts. In this regard
reliance is placed on the fact that the deceased’s body was
recorded by the police to have
been lying in dense bush, 16 metres
away from where the eyewitnesses said the appellant was when he fired
the shots; that the body
was 12-15 metres from the edge of the road
where the appellant’s vehicle was; that Onisimo’s position as
pointed out by the eyewitnesses
was 16.5 metres away from where the
deceased’s body was and also deep inside the dense bush; that the
police recorded that there
were no signs that the deceased had
crawled or had been dragged to where the body was found; that only
one set of footprints was
visible to and from the body; that only two
shells were found inside the appellant’s revolver by the police.
[123] It is correct that Mpofa and Ngulube in
particular, who witnessed the whole shooting, were weak witnesses
regarding the distances
alluded to by my colleague Navsa. This
weakness, however, in my respectful view cannot found a basis to
reject all their evidence.
For whatever criticism there is against
the three eyewitnesses, it cannot be suggested that they were not
present at the scene when
the shooting occurred. Another fact that
seems to be overlooked is that even if the deceased’s body was
found about 16.5 metres
away from where the witnesses say Onisimo
was, both are on the same side, which is what the eyewitnesses
stated. Furthermore the
state’s eyewitnesses testified that this
was a moving scene – people were being shot at – and there was
some running around.
The eyewitnesses clearly stated that Onisimo and
the deceased ran around whilst being shot at in an attempt to reach
the appellant’s
bakkie. Indeed Visser, the ballistics expert,
confirms that the deceased was not facing the appellant when the
bullet struck him.
A further aspect is that Kenneth Molambo’s
testimony is untainted by Mpofa and Ngulube’s problems. He is one
of the complainants
regarding the attempted murder counts and he was
unequivocal that he, Talent and Lloyd ran away because the appellant
was shooting
at them.
[124] It is also correct that the appellant and
the eyewitnesses pointed out the same location where the shooting
took place. The
appellant pointed out the scene on the day of the
incident and the eyewitnesses nearly three weeks thereafter. This
lends further
credence to the eyewitness account about the incident
per se. They were not present when the appellant led the police to
the scene
on the day of the incident but they were able to point it
out when taken there by the police some three weeks later.
[125] Considerable criticism is also levelled at
the state’s evidence on the basis that it is highly improbable that
Onisimo would,
whilst being shot at by the appellant, run towards the
appellant’s bakkie instead of running away as did Kenneth Molambo,
Talent
and Lloyd. A further basis of improbability relied on is that
the state’s version suggests that the appellant behaved like a
complete
lunatic in shooting at the five employees at point blank
without provocation and in full view of witnesses. I do not find any
improbability
in this eyewitness account. We have no evidence from
the appellant, other than his claim – which strikes me as equally
absurd –
that he shot blindly to scare off baboons, to suggest that
the situation is not as described by the eyewitnesses. It is not open
to us sitting on appeal to reject first-hand evidence, without
controverting evidence, but simply because we think people in the
heat of the moment, could not have behaved in a certain manner.
Whilst I am mindful not to overemphasise the advantages of the trial
judge, my view is that in this case he was in a more advantageous
position than us. He saw and heard the witnesses and commented:
‘
I find it necessary to state that I have had ample
opportunity to observe Mphofu, Ngulube and Molambo while they
testified under oath
in this court. With the greatest of respect to
them, (and I must state that I do not intend to ridicule them in any
manner whatsoever),
all three of them appear to me to be fairly
simple and unsophisticated persons.
They all answered all questions, which were put to them
satisfactorily, without any hesitation and directly. I have already
alluded
to the fact that they were exposed to a very long, prolonged,
searching and incisive cross-examination.
However, I never got an impression, during their
testimony, that they were either hostile or antagonistic towards the
accused. They
never exaggerated or even tried to embellish their
version. Whenever they were confronted with apparent inconsistencies
in their
versions, they offered satisfactory explanations.
To my mind, no sound or valid criticism can be levelled
against them.’
Simply put we cannot, sitting on appeal and relying on nothing but
our own inclinations of how people should or would have behaved,
reject otherwise plausible direct evidence. That eyewitness testimony
should not be lightly rejected is illustrated by Mpofa when
in
cross-examination, it was put to him that it was highly improbable
for Onisimo to have run towards rather than away from the appellant.
His response was simple but stark in its significance:
‘
Dit is hoe hy opgetree het u edele. Hy het eenvoudig
in die beskuldigde se bakkie kom klim.’
[126] It is also erroneous, in my respectful view,
to find that there was no trigger to the appellant’s conduct and
therefore conclude
that it is improbable that he behaved as attested
to by the eyewitnesses. In the first place the appellant was angry
when he encountered
Never with his bakkie having run out of petrol
for the umpteenth time. That he was angry is confirmed by Mpofa and
Ngulube and is
illustrated by his reaction in dismissing Never on the
spot and instructing him to remove himself, his possessions, and his
family
from the farm. The probabilities are further very strong that
directly after encountering Never the appellant arrived at the work
place where the employees were supposed to have unearthed stones the
previous day and finding that none had been so unearthed, his
anger
did not abate, and directly thereafter when he encountered the five
employees on the farm road having warned them the day before
not to
roam around the farm, his anger spilled over and he reacted in the
manner described by the eyewitnesses.
[127] The discovery of the deceased’s body by
the appellant is another aspect that deserves proper consideration.
The objective
evidence is that the body was found in dense bushes.
Superintendent Nephawe, Captain Boshoff and Inspector Louw who were
the first
on the scene are all
ad idem
that they would never have seen the body, hidden as it was in the
dense bushes, had the appellant not pointed it out to them. The
appellant left all the employees at the compound and was only
accompanied by Never to fetch the stalled bakkie. It was on this
return
trip that he says he noticed the body, his attention being
drawn to it fortuitously. He provides no detail how this was possible
with the surrounding dense bushes and what exactly drew his attention
to the body. The explanation he ventures is dubious to say
the least
– that on the return trip his view into the bushes was not impeded.
The probability – which in my view is overwhelming
– is that the
appellant knew that he had shot someone there and had gone back to
assess the situation.
[128] The finding of two shells in the appellant’s
revolver, as an objective fact, is also relied upon to discredit the
eyewitness
account that the appellant fired more than two shots. My
respectful view is that the appellant had ample time from the time of
the
shooting until he handed his revolver to the police to tamper
with his firearm to fit in with the version he proffered to the
police
and in court. That this is a strong probability is fortified
by his dubious story of firing shots to scare off baboons, which as
I
have already shown, stands to be rejected out of hand.
[129] It is clear in my respectful view that
having considered the evidence in its totality and properly analysing
the objective facts,
the probabilities and the strengths and
weaknesses of the respective versions, the state has succeeded in
proving the guilt of the
appellant beyond reasonable doubt. With
regard to the failure to call the other guest workers as witnesses,
such as Onisimo, counsel
for the state informed us that this witness,
like the others who is also Zimbabwean, could not be located.
I now turn to the issue of the missing statements.
[130] My colleague Navsa has conducted an
exhaustive treatise of the law regarding the state’s duty to make
disclosure to an accused
person. Indeed in
Shabalala
v Attorney-General, Transvaal,
[1995] ZACC 12
;
1996 (1)
SA 725
(CC) the Constitutional Court outlawed blanket docket
privilege as previously asserted by the state and thereby reinforced
an accused’s
right to a fair trial, by ordaining that an accused
person is entitled to have access to documents in a police docket.
[131] What would constitute a fair trial depends
on the circumstances of each case.
Shabalala
at 743 para 36 and 37. Simply put the full ambit of an accused’s
right to a fair trial in so far as access to docket contents is
concerned is that an accused must be in a position to formulate and
provide a full answer and defence to the charges brought against
him.
This was articulated in
Stinchcombe v
The Queen
(1991) 68 CCC (3d) 1 (18 CRR
(2d) 210) at 217 as follows:
‘
The right to make full answer and defence is one of
the pillars of criminal justice on which we heavily depend to ensure
that the
innocent are not convicted.’
See also
R v
Taillefer
(2004) 114 CRR (2d) 60 (SCC)
at 84 para 71.
[132] As a result of the view I take on the merits
of this matter I deem it prudent to comment on the appellant’s
contention that
his right to make full answer and defence to the
charges, was infringed which resulted in him not receiving a fair
trial in this
matter, because of the inability of the state to
provide him with the original witness statements.
[133] It is correct that in this case the state’s
inability to disclose to the appellant the original witness
statements was a breach
of its duty. I use the term ‘inability’
for the simple reason that the state did not refuse to disclose but
was not in possession
of these statements which, save for one, had
vanished without trace from the police docket. The mere fact that the
state has breached
its duty to disclose does not necessarily mean
that his right to make full answer and disclosure has been infringed
with the consequence
that he has not received a fair trial. The issue
that has to be determined first is the extent of the breach and its
impact on the
trial. Each case must be determined having regard to
the particular circumstances thereof.
Shabalala
(supra) at para 36. The position was, in my respectful view, properly
articulated by Mahomed CJ in
S v
Shikunga
1997 (2) SACR 470
(Nm SC) at
484c-f as follows:
‘
Where the irregularity is so fundamental that it can
be said that in effect there was no trial at all, the conviction
should be set
aside. Where one is dealing with an irregularity of a
less severe nature then, depending on the impact of the irregularity
on the
verdict, the conviction should either stand or be substituted
with an acquittal on the merits. Essentially the question that one
is
asking in respect of constitutional and non-constitutional
irregularities is whether the verdict has been tainted by such
irregularity.
Where this question is answered in the negative the
verdict should stand. What one is doing is attempting to balance two
equally
compelling claims - the claim that society has that a guilty
person should be convicted, and the claim that the integrity of the
judicial process should be upheld. Where the irregularity is of a
fundamental nature and where the irregularity, though less
fundamental,
taints the conviction the latter interest prevails.
Where however the irregularity is such that it is not of a
fundamental nature
and it does not taint the verdict the former
interest prevails. This does not detract from the caution which a
court of appeal would
ordinarily adopt in accepting the submission
that a clearly established constitutional irregularity did not
prejudice the accused
in any way or taint the conviction which
followed thereupon.’
See also
Smile v S
[1998] 2 All SA 613
(A) at 618 and
S v
Maputle
2003 (2) SACR 15
at paras 5 and
6.
[134] The appellant cannot, in my view, be heard
to assert that his right to make full answer and defence to the
charges was also
infringed. The appellant provided a version from the
time he reported the incident to the police, ie before he was even
charged,
and persisted therein right through the trial. That version
was that he fired two shots to scare off baboons that had crossed his
path. The impact of the non-disclosure on the appellant’s right to
test the credibility and reliability of the eyewitness evidence
was
minimal if anything. In the first place the prosecution was unaware
of the existence of the missing statements, which fact emerged
during
the cross-examination of Mpofa. What the prosecution was in
possession of was the third set of witness statements which had
been
provided to the defence. Therefore the prosecution itself was not
privy to nor placed any reliance on the missing statements.
The
prosecution case was also of necessity not based on the missing
statements but on statements it had provided to the defence.
Therefore the prosecution’s case was in no way advantaged by the
missing statements nor can the appellant claim to have been ambushed.
A further point to make is that the appellant made full use of his
right to cross-examine. This is a right which the Constitutional
Court has also recognised. See
President
of the RSA v South African Rugby Football Union
2000 (1) SA 1
(CC) at 36 para 61.
[135] Curiously, the defence was in possession of
one of the missing statements which caught the prosecution by
surprise when it was
shown to one of its witnesses under
cross-examination. No explanation has thus far been provided by the
defence as to how they came
into possession of a statement which went
missing with others from a police docket. Possession by the defence
of this statement,
albeit one, nevertheless lessened whatever
negative impact the non-disclosure of the others had on the
appellant’s right to a fair
trial.
[136] I do not agree with my colleague Navsa that
a conclusion that the missing statements did not suit the state’s
case is irresistible.
This view is based on Superintendent Ramakadi’s
assertion that the reason the police decided to take fresh statements
was because
the original ones were mostly illogical, incomplete and
appeared to have been taken by certain witnesses from other
witnesses. This
evidence must be contrasted with the evidence of
Captain Boshoff, the original investigating officer in the case and
who testified
in support of the appellant’s case. He had perused
four and a part of a fifth of the original statements and the only
discernible
contradiction he could point out in these statements
related to the type of firearm the appellant used. We have had no
sight of these
statements and as a result we are not in a position to
make our own assessment whether indeed the missing statements did not
suit
the state’s case or would have advanced the appellant’s
case. A further consideration is that Ramakadi and Boshoff who had
sight
of the missing statements provided no details whether the
statements they referred to were made by the eyewitnesses called by
the
state or by other witnesses.
[137] I also do not agree that the statements went
missing by design rather than misfortune. Ramakadi explained that
when the decision
was taken to retake the statements the initial ones
were put in a different section of the docket. He stated that he did
not know
how they eventually got lost. It is also clear from the
record that the docket was handled by a number of police officers. In
my
view the police can only be criticised for incompetence and not
for wilful wrongdoing.
[138] In my view the breach by the state to make
disclosure was not so fundamental as to vitiate the proceedings. The
appellant enjoyed
overall a substantially fair trial. Objectively
considered this is a matter that should be determined on the evidence
on record unaffected
by the breach.
[139] In the final analysis it is clear, in my
respectful view, that having considered the evidence in its totality,
the state established
beyond reasonable doubt that the appellant shot
knowingly at his five employees, not to scare off baboons, and by so
doing intended
to murder them, or proceeded recklessly in the
knowledge that he might. The evidence also shows that the appellant’s
version is
not reasonably possibly true and that he was properly
convicted and sentenced. My colleague Navsa finds that the appellant
in firing
the shots behaved in a cavalier fashion to assert his
authority over the farm and guest employees. He could only behave in
this fashion
if he was aware of their presence in the vicinity. As
already shown he disavowed their presence on the scene and it is
simply out
of the question that baboons presented him with an
opportunity to show his employees who is in charge. That being the
case it is
my respectful view that there is no basis in law and fact
to justify his conviction on culpable homicide, based as it is, on
his
discredited version.
[140] I would dismiss the appeal.
_________________
D MLAMBO
JUDGE OF
APPEAL
PONNAN
JA:
[141] I have read the judgments of my colleagues
Navsa and Mlambo JJA. I agree with the former but am constrained to
disagree with
the latter. On a proper conspectus of all the evidence
two mutually exclusive, broad hypotheses emerge. The first is that
the appellant
deliberately and with the requisite
dolus
directus
, shot and killed the deceased.
This hypothesis admits of no other form of intention. The second,
advanced by the defence, is that
the killing occurred as a result of
the negligent discharge by the appellant of his firearm. The first,
which has been advanced
by the State in this case, finds favour with
Mlambo JA. Navsa JA, on the other hand, plumps for the second. In
what follows I shall
endeavour to demonstrate that the first
postulated hypothesis is untenable.
[142] I agree with my colleague Mlambo that, in
determining the guilt of an accused person, all the evidence must be
taken into account.
As it was put by this court in
S
v Trainor
2003 (1) SACR 35
(SCA) para
9:
‘
A conspectus of all the evidence
is required. Evidence that is reliable should be weighed alongside
such evidence as may be found
to be false. Independently verifiable
evidence, if any, should be weighed to see if it supports any of the
evidence tendered. In
considering whether evidence is reliable, the
quality of that evidence must of necessity be evaluated, as must
corroborative evidence,
if any. Evidence, of course, must be
evaluated against the
onus
on any particular issue or in respect of the case in its entirety.’
That, however, is no licence for an inversion of the inquiry. The
correct starting point remains the State case, which unquestionably
has to pass a certain minimum threshold before one even turns to
consider the veracity of the defence. To commence with the defence
version, to subject it in isolation to rigorous scrutiny, to find it
wanting and thus susceptible to rejection, as Mlambo JA has
done, is
to my mind the very antithesis of approaching the evidence
holistically.
[143] If one starts, as one must, with the State
case, one is confronted by a myriad of internal and external
contradictions. My
colleague Navsa in his judgment dealt only with
the more significant contradictions. Although not exhaustive they
are sufficient
in my view to cast serious doubt on the acceptability
of the evidence of each eye-witness who testified for the State and
consequently
on the State case as a whole. I do not discount in any
way their lack of sophistication, the generally intimidating milieu
of the
courtroom and the fact that they had to relive what for them
must have been a harrowing experience. Even allowing for all of
that,
the evidence of each was riddled with improbabilities and
contradictions.
[144] Navsa JA has sought to discern what he
describes as the essence of the State’s case. With respect to my
learned colleague,
he is far too charitable to that case. On my
reading of the evidence, a logically coherent picture simply fails to
emerge.
[145] It can hardly be in dispute that there were
indeed workers on the scene of the shooting and that one of them was
shot and killed
by the appellant. It must also follow that there
might well have been tools in the vicinity of the shooting. In that,
Mlambo JA
is undoubtedly correct. The presence of the workers,
however, does not necessarily exclude the presence of baboons. What
I cannot
understand is why the presence or absence of baboons has
assumed such heightened significance in this case. Because even if
one
were to accept ─ as my colleague Mlambo appears to ─ that the
appellant falsely conjured up the baboons to explain his resort
to
his firearm, that hardly justifies the conclusion that the shooting
was intentional. Nor is acceptance of the fact that the workers
were
present necessarily the end of the inquiry. Each participated in a
pointing out. What was pointed out was inconsistent with
their oral
testimony in court and difficult to reconcile with the objective
facts. The nett result of all of this is that one is
totally at a
loss as to what the vantage point of each worker was or precisely
what each saw. That, I am afraid, is one of the more
elementary
difficulties with the State case. It gets worse.
[146] When shots were being fired at the workers
from fairly close range, both Onisimo and the deceased are supposed
to have run towards
the source of danger ─ not away from it.
Onisimo in fact boarded the appellant’s vehicle. The deceased
after being struck by
a bullet literally fell at the feet of Onisimo.
Strangely, Onisimo thereafter seemed to be oblivious to the
deceased’s fate.
The vehicle departed from the scene of the
shooting and none of the workers (anywhere between five and eight in
number according
to the State case) who were at that stage occupants
of the vehicle expressed concern for the deceased. And yet, given
their testimony,
they must already have been aware that the deceased
had either been killed or was lying seriously injured in the veld.
The workers
then regrouped, readied themselves to go about their
work, sought to verify by a headcount if any of their number was
missing and
thereafter set out to their new worksite ─ all of this
in a generally desultory fashion as if nothing untoward had happened.
[147] Mlambo JA states that it is not open to us,
sitting as a court of appeal to reject evidence simply because we
think people could
not have behaved in a particular way. As is
apparent from the judgment of Navsa JA, however, that is not the sole
basis for the
rejection of the evidence in this case. My colleague
Mlambo also objects to us relying on our own ‘inclinations’ as to
how people
should have behaved to reject plausible direct evidence.
The answer to this is that first, the evidence properly analysed is
anything
but plausible. Second, courts of law
daily have
regard to their own experiences of, and insight into, human
behaviour, in deciding upon the inferences to be drawn from
the
objective facts relating to the actions of witnesses (
S v
Kalogoropoulos
1993 (1) SACR 12
(A) 22
d
-
e
). A
court would clearly also be justified in testing the evidence of a
witness about his or her state of mind, not only against
the prior
and subsequent conduct of that witness and the other witnesses in the
case, but also against the court’s experience of
human behaviour
and social interaction (
S v Eadi
e
2002 (3) SACR 719
(SCA) para
64).
[148] The evidence of the eye-witnesses as to the
number of shots discharged by the appellant is not only contradictory
but is also
at odds with that of the police officer who took the
appellant’s firearm into his custody. Whilst it is notionally
possible for
the appellant to have tampered with his firearm, the
State gave no hint at that possibility during his cross-examination.
And yet
Mlambo JA concludes as a strong probability that he must have
tampered with his firearm. What advantage would have been gained by
such conduct is lost on me. The appellant admitted from the outset
to firing two shots. That, at a time when he knew that the deceased
had been struck and killed and when he was not to know what the
version of the eye-witnesses would be. As it subsequently
transpired,
one of the eye-witnesses put the number of shots
discharged as high as seven. In the context of this case the
appellant’s admission
that he discharged two shots, one of which as
we well know struck the deceased, can hardly be considered
exculpatory. Why then,
it must be asked, would the appellant tamper
with his firearm, when such conduct would not garner any advantage
for him?
[149] It is indeed so that this Court’s powers
to interfere on appeal with the findings of fact of a trial court are
limited (See
S v Hadebe and Others
1997 (2) SACR 641
(SCA) at 645
e
-
f
;
S v Francis
1991 (1) SACR 198
(A) at 204
e
.)
In this regard, Mlambo JA is undoubtedly correct. However, as this
Court put it in
S v Heslop
2007 (4) SA 38
(SCA) para 13:
‘
The correct approach to the deference which a Court
of appeal ought properly to accord credibility findings made by a
trial court,
based directly or indirectly on the demeanour of
witnesses who have testified orally before it, has been dealt with in
a number of
decisions. I merely wish to emphasise the following
aspect. It is cause for concern to find laudatory epithets applied
by a trial
court to witnesses when the record shows that their
performance, judged by the written word, was obviously far from
satisfactory.
In such a case an appeal Court will more readily
interfere with the findings of the trial court as to the weight to be
attached
to the witnesses’ evidence and its ultimate conclusion
based on such findings.’
Furthermore, in
Union
Spinning Mills (Pty) Ltd v Paltex Dye House and Another
2002 (4) SA 408
(SCA) para 24, this Court held:
‘
Although Courts of appeal are slow
to disturb findings of credibility they generally have greater
liberty to do so where a finding
of fact does not essentially depend
on the personal impression made by a witness’ demeanour but
predominantly upon inferences from
other facts and upon
probabilities. In such a case a Court of appeal with the benefit of
an overall conspectus of the full record
may often be in a better
position to draw inferences, particularly in regard to secondary
facts.’
(See also
Louwrens
v Oldwage
2006 (2) SA 161
(SCA) para
14.)
[150] Whilst I plainly do not share the trial
court’s conclusion that ‘no sound or valid criticism can be
levelled against’
the state witnesses, I nonetheless do not propose
to deal with each of the points of criticism that can legitimately be
advanced
against the evidence of each of them. My reading of the
record reveals each to be manifestly unreliable. That much is evident
from
the judgment of Navsa JA. It thus follows that, even if the
appellant’s version were to be rejected, as Mlambo JA would have
it,
the State case remains nonetheless woefully inadequate to support
a finding that the appellant discharged his firearm with the
requisite
dolus
directus
.
[151] Mlambo JA appears to accept that Mphofa and
Ngulube were ‘weak witnesses regarding the distances’. For my
part I
am far more condemnatory of them on that score. That they are
‘weak’ regarding an important aspect such as distances is in my
view a significant deficiency. Properly contextualised, their
evidence is at odds with that of the other state witnesses,
particularly
the police officers who attended the scene immediately
after the shooting, to the effect that the body of the deceased was
to be
found in dense bush some 16.5 metres away from where the
appellant allegedly discharged his firearm. That their version is at
odds
with the objective facts is devastating to the State case, for
it gives the lie to their account that the appellant shot at the
deceased
at fairly close range whilst the latter was walking towards
the vehicle. That ‘weakness’, to once again borrow from Mlambo
JA,
must perforce found the basis for the rejection of the hypothesis
advanced by the State.
[152] A further criticism of the State case is
that it neither called – nor adduced any evidence for its failure
to call – the
other guest workers who were on the farm at the
relevant time and who must have witnessed the shooting. Absent any
evidence, as is
the case here, a trier of fact would have been
entitled to draw an adverse inference from such failure. It is no
answer to that criticism
to invoke, as Mlambo JA appears to, the
explanation tendered from the bar by counsel for the State in this
court on appeal.
[153] Mlambo JA states:
‘The
impact of the non-disclosure on the appellant’s right to test the
credibility and the reliability of the eyewitnesses’
evidence was
minimal if anything’.
He later
adds
: ‘We have had no sight
of these statements and as a result we are not in a position to make
our own assessment whether indeed
the missing statements did not suit
the State’s case or would have advanced the appellant’s case’.
Not only do those assertions appear to be mutually
incompatible, but on the view that I take of the matter, the missing
witness statements
are fatal to a conviction on the murder charge.
Once again there is a paucity of information. There may well have
been a perfectly
innocent explanation for the statements having gone
missing, but none was tendered by the State. Moreover, there was an
initial denial
of the existence of such statements. That in itself
impacts negatively on the credibility of the relevant witness. Be
that as it
may, it was only when irrefutable evidence in the form of
one of the missing statements was produced, that there was a
willingness
to even acknowledge that prior statements had indeed been
secured from the eye-witnesses. I can hardly imagine that the impact
of
what may well have been two sets of statements per eye-witness
would have been ‘minimal if at all’, as Mlambo JA puts it. Quite
the contrary, for clearly the defence was denied the opportunity of
cross-examining eye-witnesses on material evidence
contained
in their witness statements. Those statements must have been secured
by the police with at least an eye on a prosecution.
The standing of
the witnesses ─ who were, in a word, pathetic ─ would not, I
daresay, have improved if they had also been subjected
to
cross-examination on the additional statements, particularly
statements that, on the State’s own case, were logically incoherent
and had been made by witnesses who had influenced and schooled one
another. That being so, it is hard to resist the conclusion that
the
investigation docket had been deliberately doctored. But it may well
be unnecessary to go that far.
[154] Mlambo JA finds it curious that one of the
missing statements was in the possession of the defence. I would
term it fortunate.
Otherwise a fundamental irregularity may not have
seen the light of day and a grave injustice may have resulted.
Although counsel
for the appellant offered to divulge to this Court
how that statement came to be in his possession, he was not taken up
on his offer.
To my mind the defence acted quite properly in this
regard.
[155] Mlambo JA suggests that the possession by
the defence of one statement lessens whatever negative impact the
non-disclosure may
have had on the appellant’s rights to a fair
trial. That, of course, assumes on his approach that there
was
indeed a negative impact; a negative impact which, according to him,
is incapable of quantification. Well, if there was indeed a
negative
impact, the logical corollary thereof ─ notwithstanding my
colleague’s finding to the contrary ─ has to be that the
State in
fact has been advantaged. It strikes me that on any reckoning the
prejudice to the appellant in this case has to be substantial.
For,
whilst the appellant may well have made full use of the right to
cross-examine, he was denied access to crucial evidential
material.
As a consequence the essential content of the right, it seems to me,
has been negated.
[156] If the appellant is to be convicted of culpable homicide, as
Navsa JA would have it, that would occur in consequence of the
State
case being rejected. The appellant would thus fall to be convicted
on his own version. In that event the manifest irregularity
matters
not. If, however, the appellant is to be convicted of murder, as
Mlambo JA would have it, that could only happen were the
appellant’s
version to be rejected. The appellant would thus fall to be
convicted on the evidence adduced by the State. That
being so, the
fact that the appellant advanced a consistent version since inception
would be entirely irrelevant and can hardly therefore
avail the State
in either negativing or mitigating the effect of the irregularity.
It follows that the irregularity, which impacts
directly and
substantially on the fairness of the trial and the effect of which
cannot (as I have already intimated) be quantified,
becomes to my
mind, an insuperable obstacle. In that event one therefore plainly
cannot get to a murder conviction.
[1
57] Mlambo JA states
that it is inconceivable that the appellant’s version can be
reasonably possibly true whilst also accepting
the State’s version
with which it is irreconcilable. In support of that proposition my
colleague calls in
aid the judgment of Nugent J in
S
v Van der Meyden
1999(1) SACR 447 (W).
Mlambo JA appears to distill three broad propositions from that
judgment. I, on the other hand, feel constrained
to set out in full
the relevant dictum (at 449
h
-450
b
),
which reads:
‘
It is difficult to see how a defence can possibly be
true if at the same time the State’s case with which it is
irreconcilable is
“completely acceptable and unshaken”. The
passage seems to suggest that the evidence is to be separated into
compartments, and
the ”defence case” examined in isolation, to
determine whether it is so internally contradictory or improbable as
to be beyond
the realm of reasonable possibility, failing which the
accused is entitled to be acquitted. If that is what was meant, it
is not
correct. A court does not base its conclusion, whether it be
to convict or to acquit, on only part of the evidence. The
conclusion
which it arrives at must account for all the evidence. . .
.
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.’
(See
also
S v Trainor
2003 (1) SACR 35
(SCA) at 40
h
-41
a
;
S v Van Aswegen
2001 (2) SACR 97
(SCA) at 101
b
.)
As Navsa JA has ably demonstrated, the State’s case is neither
acceptable nor unshaken. In those circumstances there can be no
warrant for rejecting the defence version on the basis that it is not
reasonably possibly true.
[158] Bearing in mind where the onus lies in this
case and more importantly the nature of the onus, Navsa JA commences
with the State
case. In that context he details various
unsatisfactory features in the state case. Those are glossed over,
largely ignored or
dealt with in a somewhat random fashion by Mlambo
JA. Instead Mlambo JA contents himself, from the outset, with what
he terms ‘those
facts that have not been accorded their appropriate
impact by Navsa JA’. He then proceeds to level what I can only
describe as
various disparate criticisms at the judgment of Navsa JA.
Those criticisms leave me in
no doubt that the carefully reasoned judgment of Navsa JA is
unassailable.
_________________
V PONNAN
JUDGE OF
APPEAL
CONCUR:
NAVSA JA
BRAND JA
MALAN AJA
The order
[159] In the result the appeal is successful only to the extent
reflected in the order that follows:
1. The convictions on the charge of murder and on the four counts of
attempted murder are set aside, as are the related sentences.
2. The conviction on the murder charge is substituted with a
conviction of culpable homicide.
3. The appellant is sentenced to five years’ imprisonment, two
years of which are suspended for five years on condition that the
appellant is not convicted of culpable homicide, assault with intent
to do grievous bodily harm or any contravention of the
Firearms
Control Act 60 of 2000
, committed during the period of suspension.
1
The relevant provisions of s35(3) of the
Constitution are as follows:
‘Every accused person
has a right to a fair trial, which includes the right –
…
(b) to have adequate
time and facilities to prepare a defence;
…
(i) to adduce and
challenge evidence; …’
2
The State witnesses differ in respect of the
number of workers who sat on the back of the bakkie. According to Mr
Mpofa eight guest
workers were on the back of the bakkie. From Mr
Ngulube’s evidence it appears that there were five guest workers
on the back
of the bakkie.
3
It is not altogether clear whether Lloyd, one of
the appellant’s workers, had departed with Target, Mandla and
Never or whether
he had remained behind at the compound with the
five guest workers. Consequently it is not altogether clear whether
Lloyd was part
of the contingent of workers that were encountered by
the appellant as he drove along the farm road. Initially Mr Mpofa
testified
that Lloyd had been collected earlier, along with Target
and Mandla, by Never. Immediately thereafter he said that Target and
Mandla
had departed with Never. Mr Mpofa testified further that four
guest workers plus Lloyd had been left behind. Mr Mpofa confirmed
that five persons were encountered along the farm road. Mr Ngulube
testified that after the appellant had collected the guest workers,
five of them plus Lloyd had been left behind. According to
Mr Ngulube the appellant encountered five guest workers plus
Lloyd
and that when the workers split into two groups Lloyd was part
of the group on the right. According to Mr Molambo four workers
plus Lloyd had been left behind at the compound by the appellant.
When, according to Mr Molambo, the appellant encountered them
walking along the farm road, Lloyd and he and Talent made up the
group of three that had split from the deceased and Onisimo.
4
See also
R v
Taillefer
(2004) 114 CRR (2d) 60 (SCC)
and
R v Forster
(2006) 133 CRR (2d) 237 (CA Saskatchewan).
5
R v Leyland Magistrates, ex parte Hawthorn
[1979] 1 All ER 209
(QB);
R v Maguire
and Others
[1992] 2 All ER 433
(CA);
Edwards v United Kingdom
[1992] ECHR 77
;
(1992) 15 EHRR 417
;
Rowe and Davis v
United Kingdom
[2000] ECHR 91
;
(2000) 30 EHRR 1
;
R
v Feltham Magistrates’ Court, Mouat v Director of Public
Prosecutions
[2001] 1 WLR 1293
(QB);
Hulki Güne
ş
v Turkey
(2006) 43 EHRR 15 263.
6
Jonathan Burchell
Principles of Criminal Law
3 ed (2005) pp 159-160 and 674.