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[2016] ZAGPPHC 285
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Mahlangu and Another v S (A404/2014) [2016] ZAGPPHC 285 (6 May 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION, PRETORIA
)
Not
reportable
Not of
interest to other judges
Revised.
CASE
NO: A404/2014
DATE:
6/5/2016
IN
THE MATTER BETWEEN
KHEHLA
MAHLANGU 1
ST
APPELLANT
LUCAS
SOVALA
MASILELA 2
ND
APPELLANT
AND
THE
STATE RESPONDENT
JUDGMENT
PRINSLOO,
J
[1]
The two appellants were the first two of six accused who were
convicted in the Circuit Local Division of the Eastern Circuit
District of this court on 5 October 2011 on six counts each.
The
six counts are robbery with aggravating circumstances, murder,
attempted murder, attempted murder, unlawful possession of firearms
and unlawful possession of ammunition.
[2] It
is not in dispute that the indictment, which is a comprehensive
affair prepared by the Deputy Director of Public Prosecutions,
was
brought to the attention of all the accused. They were all
legally represented.
[3] In
respect of the charge of robbery, the indictment clearly states that
there were aggravating circumstances as defined in section
1(1) of
the Criminal Procedure Act no 51 of 1977 ("the CPA")
read with the provisions of section 51(2) of Act 105
of 1997.
This charge was originally crafted to refer to section 51(1) of
the last mentioned Act, but, at the commencement
of the
proceedings, the prosecutor applied for an appropriate amendment to
replace a reference to section 51(1) with a reference
to section
51(2).
There
was no opposition to this amendment.
[4] In
respect of the murder charge, count 2, the indictment also clearly
states that it was in respect of murder read with the
provisions of
section 51(2) of Act 105 of 1997. Again, at the commencement of
the proceedings, an amendment, unopposed, was
granted replacing the
reference to section 51(2), with a reference to section 51(1).
[5]
The charges dealing with the unlawful possession of firearms and
ammunition, counts 5 and 6, contain proper references
to the
applicable sections of the Firearms Control Act, Act 60 of 2000.
[6]
For illustrative purposes, it is convenient to quote the contents of
the charges.
"COUNT 1
In that upon or about 14 March 2009 and at or near Trichardt, in the
district of Evander, the accused did unlawfully and intentionally
assault
ABDULLA RASIHO AHMED DAYA AND/OR
EBRAHIM DAYA AND/OR
MOHSEEN DAYA
and take by force and violence from their possession two cell phones,
their property or in their lawful possession aggravating
circumstances being present in that firearms were used.
COUNT 2
In that upon or about 14 March 2009 and at or near Trichardt, in the
district of Evander, the accused did unlawfully and intentionally
shoot
ABDULLA RASIHO AHMED DAYA
an adult male person, as a result of which he passed away on 14 March
2009 at the High Veld Medical Clinic. The
accused
therefore unlawfully and intentionally killed the deceased Abdulla
Rasiho Ahmed Daya.
COUNT 3
In that upon or about 14 March 2009 and at or near Trichardt, in the
district of Evander, the accused did unlawfully and intentionally
attempt to kill
EBRAHIM DAYA
a male person, by shooting him.
COUNT 4
In that upon or about 14 March 2009 and at or near Trichardt, in the
district of Evander, the accused did unlawfully and intentionally
attempt to kill
MOHSEEN DAYA
a male person, by shooting at him.
COUNT 5
In that upon or about 14 March 2009 and at or near Trichardt, in the
district of Evander, the accused did unlawfully have in their
possession firearms of unknown calibres and serial numbers, without
being lawful holders of licenses issued in terms of the aforesaid
Act
to possess such firearms.
COUNT 6
In that upon or about 14 March 2009 and at or near Trichardt, in the
district of Evander, the accused did unlawfully have in their
possession an unknown quantity of ammunition, without being in
possession of firearms capable of firing the aforesaid ammunition.
In the event of conviction the said Director of Public Prosecutions
prays for sentence according to law."
[7] It
is also convenient to quote the summary of the substantial facts in
terms of section 144(3)(a) of the CPA, which summary
accompanied the
indictment:
"1. The deceased and the complainants in counts 3 and 4 were at
their business premises on 14 March 2009. The accused
arrived
at these premises. They fired shots at the deceased and the
complainants in counts 3 and 4.
2. The deceased and the complainants in counts 3 and 4 were robbed of
their cell phones.
3. The deceased was transported to hospital where he later died.
The cause of death is given as:
'INTERNAL INJURIES – GUNSHOT LIVER'.
4. The accused at all relevant times acted with common purpose."
[8]
The proceedings commenced before the learned trial Judge, Claassen J,
in March 2011 when it was postponed, due to unavailability
of
counsel, to 4 October 2011.
[9] At
the commencement of the proceedings on the aforesaid date, the
amendments to the charge sheet, which I have referred
to, were
applied for and granted.
[10]
The learned Judge asked counsel whether it was necessary to put the
charges to the accused or whether they had taken instructions
on the
plea that would be presented.
In
respect of the two appellants (then accused 1 and 2) their counsel
said:
"M'Lord, I have explained the charges to the accused ... and I
have received instructions, M'Lord."
When
counsel for the appellants was asked whether they were ready to
plead, he indicated that number 1 pleads not guilty to all
the
charges and denies the allegations against him. He conveyed the
same message to the court in respect of the second appellant.
He indicated that there was no plea-explanation.
I
mention all these details, because of a point
in limine
which
was argued by Mr Moeng, counsel for the second appellant, when
the appeal came before us. Mr Mosopa appeared
for the
first appellant, and Mr Mashuga appeared for the state.
[11]
Returning to the plea proceedings, I add that the interpreter stated
to the court that both the appellants confirmed the plea-explanation,
such as it was, offered on their behalf by their counsel.
[12] I
add that the remaining four accused also, through their counsel,
pleaded not guilty to all the charges, without giving
plea-explanations,
other than a bare denial of the allegations and in
each case, the relevant accused confirmed the "plea-explanation".
[13]
The remaining four accused did not feature in the appeal before us.
I assume, although there was no official confirmation
to that effect,
that the remaining four accused did not proceed with efforts to
appeal against their convictions and/or sentences.
[14]
On 5 October 2011, all six the accused were convicted on all six the
charges.
[15]
On the same date, 5 October 2011, the first appellant was sentenced
as follows:
on
COUNT 1: twelve years imprisonment;
on
COUNT 2: twelve years imprisonment;
on
COUNTS 3 AND 4, the attempted murders, eight years imprisonment each;
on
COUNT 5, possession of firearms, five years imprisonment;
on
COUNT 6, possession of ammunition, two years imprisonment.
After
pronouncing the sentences in respect of the first appellant, the
learned Judge said the following:
"The total amounts to 47 years. That obviously is far too
much. I order that the sentences on COUNT 1, COUNT
3,
COUNT 4, COUNT 5 AND COUNT 6, are to run concurrently. Eight
years of COUNT 2 is also to run concurrently with the sentence
on
COUNT 1.
That means that it is an effect (
sic
) imprisonment sentence of
20 years."
I,
respectfully, have to observe that the arithmetic of the learned
Judge clearly let him down: if eight years of the twelve years
sentence in respect of count 2 run concurrently with the other
sentences, only four years of the twelve years sentence remain,
so
that the concurrent sentences of twelve years, when added to the four
years, produce an effective sentence of imprisonment of
sixteen years
and not twenty years. I debated this with counsel during
the proceedings before us. I will revert
to this issue.
[16]
The second appellant was sentenced as follows:
COUNT
1, ten years imprisonment.
COUNT
2, twelve years imprisonment.
COUNTS
3 AND 4, six years imprisonment each.
COUNT
5, five years imprisonment.
COUNT
6, two years imprisonment.
Because
of the cumulative effect of the total sentence of forty one years,
the learned Judge ordered that all the sentences would
be served
concurrently with the twelve year sentence in respect of count 2, the
murder charge. In the result, the effective
sentence of
imprisonment came to twelve years.
[17]
For present purposes, I need not dwell on details of the sentences in
respect of the remaining four accused, but it can be
said that those
sentences, by and large, corresponded with the sentences imposed in
respect of the second appellant, namely twelve
years effective
imprisonment.
[18]
Still on 5 October 2011, the learned Judge granted leave to appeal to
this court to all the accused in respect of "conviction
and
sentence". The learned Judge did not give a judgment
motivating his decision, but simply made the order.
[19]
As I mentioned, it appears that the remaining accused, barring
numbers 1 and 2, did not prosecute appeals.
[20]
For the sake of brevity, I will refer to the first appellant as
"no 1" and to the second appellant as "no 2",
and to the other four accused as "no 3" to "no 6"
respectively.
[21] I
turn to the argument
in limine
presented by counsel for no 2.
ARGUMENT
IN LIMINE
[22]
The argument presented by Mr Moeng, can be summarised as follows:
• When the matter proceeded on 4 October 2011, "both
appellants pleaded without any charges being put to them".
• This procedure flew in the face of the provisions of section
35(3)(a) of the Constitution, Act 108 of 1996 which reads as
follows:
"Every accused person has a right to a fair trial which includes
the right to be informed of the charge with sufficient detail
to
answer it."
• Although legally represented and having pleaded, it is not
clear whether the appellants understood the charges levelled
against
them or not.
• The fact that counsel for no's 1 and 2 told the court that he
had explained the charges to them, does not "necessarily
mean
that the appellants understood the charges they were pleading to".
• Section 105 of the CPA was also not complied with.
This section provides:
"The charge shall be put to the accused by the prosecutor before
the trial of the accused is commenced, and the accused shall,
subject
to the provisions of sections 77, 85 and 105A, be required by the
court forthwith to plead thereto in accordance with section
106."
(Sections 78, 85 and 105A do not apply for present purposes, and
section 106 only prescribes the options open to an accused when
pleading.)
• The provisions of section 105 are peremptory, and an accused
person is entitled to know what case he has to meet.
• It is the duty of the prosecutor/state to put the charges to
the accused and for the accused to plead thereto.
• Non-compliance with the provisions of sections 35(3)(a) of the
Constitution and 105 of the CPA constitutes an irregular
procedure
entitling the appellants to have their convictions and sentences set
aside.
[23]
In opposing the argument
in limine
, Mr Mashuga, for the state,
submitted that in section 1(1) of the CPA, "charge" is
defined as including "an indictment
and a summons".
[24] I
have dealt with the proceedings which took place when the pleas were
offered at the commencement of the case.
[25]
It was not disputed that the indictment, which I have dealt with at
some length, was presented to all the accused. After
the
amendments were moved in open court, and not opposed, there was also
clear reference to the appropriate sections and subsections
of Act
105 of 1997.
[26]
Counsel for no's 1 and 2 told the court that he explained the charges
to the accused. There is no basis whatsoever for
finding that
the appellants did not understand the charges.
After
the pleas of not guilty on behalf of no 1 and no 2 were conveyed to
the court, together with the "plea-explanation"
to the
effect that all allegations were denied, the interpreter informed the
court that "both accused 1 and 2 confirm the
plea explanation,
M'Lord".
Counsel
for all the other accused followed the same procedure. No
objections were raised, at any stage during the trial, that
the
charges were not understood.
The
indictments, comprehensively worded and amended, as well as the
summary of the substantial facts in terms of section 144(3)(a)
of the
CPA, were in the possession of all the accused and their legal
representatives.
[27]
In all the circumstances, I have come to the conclusion, and I find,
that there was, at the very least, substantial compliance
with
section 35(3)(a) of the Constitution as well as with section 105 of
the CPA.
[28]
Consequently, the argument
in limine
falls to be dismissed.
Inasmuch as it may be necessary, I rule accordingly.
[29] I
turn to a brief overview of the evidence. I will attempt to
limit the summary to what is considered to be directly
relevant to
the case.
BRIEF
OVERVIEW OF THE EVIDENCE
(i)
Ebrahim Daya
[30]
On 14 March 2009 at about 15:00, he was at his shop A&E
Trichardt. It is a retail store or a "departmental
store". He was having a meeting with his colleagues, his
brother Mohseen and his cousin, the deceased, Abdulla.
After
the meeting they were leaving the store via the back door. When
he unlocked the door, and opened it, there was a man
standing with a
gun pointed at him, telling him to get down on his knees.
[31]
He identified no 1 as the gunman.
[32]
No 1 then hit him with the butt of the gun on the back of his head
and he fell onto the floor.
[33]
The gun was "a pistol" not a shotgun or a rifle or a
revolver. A handgun.
[34]
As he fell down, he was also kicked by no 1 and lost his
consciousness.
[35]
At the time of the attack, he noticed two other men behind the
attacker. They appeared to be in the company of the attacker.
They were watching the proceedings.
[36]
The only other person who was supposed to be on site at the time was
the security guard, which was accused no 5 ("no 5").
[37]
When he regained consciousness, his brother and cousin were standing
outside the shop. They probably had to step over
him because he
was lying at the door. As mentioned, the brother was
Mohseen and the cousin was the deceased, Abdulla.
[38]
The witness then saw no 1 firing a shot at the deceased who fell
down. He then pointed the gun at the brother, Mohseen,
and shot
him as well. He took a third shot at the witness but he
missed. The witness concluded that no 1 tried to kill
him as
well.
[39]
It turned out later that the brother was shot in the leg or hip area
and the cousin (deceased) in the abdomen.
[40]
He therefore fired one shot at each of the three.
[41]
When no 1 fired the shots, the other men, who were in his company,
ran away. No 1 tried to call them back and even
went after
them on foot, but later came back alone.
[42]
Before no 1 came back, the witness took out his cell phone to call
for help. No 1 then took away the cell phone
before he
could call for help and also took the cell phone of the deceased.
He therefore had three cell phones on him, namely
that of the
witness, the deceased and himself.
[43]
After no 1 took the cell phones, he ran off again in the same
direction on foot as he went to look for the other two men.
[44]
The witness then carried the deceased and Mohseen back into the shop
and phoned for help on the landline. Help arrived
in the form
of another brother and some friends. The deceased and brother
were taken to hospital.
[45]
Later that evening the deceased passed away because of the gunshot
wound.
[46]
The witness sustained an injury in the form of a bleeding wound on
the back of his head. After-effects included "benign
vertigo". He was treated at hospital but not hospitalised.
Mohseen
was in and out of hospital for a long time after that.
[47]
On 8 April 2009 the witness attended an identification parade.
[48]
At the parade, he identified no 1 and asked him to step forward.
He noticed that no 1 was wearing an earring, which
was not the
case at the time of the murder. It seems that he did not
then identify him in the proper sense of the word,
but subsequently
told the police officer involved that no 1 was the attacker but he
did not have an earring at the time.
He
identified him by his features "his face, his nose, his
clean shaven head, I remember his complexion, there are
a
few good things about his features, about him, that I remember
specifically, his built, his height".
[49]
After asking no 1 to step forward, and noticing the earring, he
assumed that the earring was part of the person's "everyday
dress" and, for that reason, he did not point him out but told
the police officer afterwards what had happened.
[50]
At the time of the attack, no 1 was within two metres away from him.
When he was ordered to get down to the floor, the
attacker was no
more than "his arm's length plus a few centimetres" away.
It was
about 15:00 or 15:15. It was a clear day.
[51]
When he regained consciousness after the attack, no 1 was 8 to 10
paces away. When no 1 did the shooting, the witness
could
see his face. No 1 also faced directly to him when he fired the
third shot.
[52]
When no 1 came back after having chased after the other two men, and
took the cell phones (this is "the third identification")
no 1 came straight to him to take the cell phone and he spent a
slightly longer time because he also took the cell phone of the
deceased. The witness then again identified no 1.
[53]
The witness could also remember the clothing that no 1 had been
wearing: it was a blue Sasol type overall top with the Sasol
logo.
[54]
The witness responded strongly to cross-examination on behalf of
no 1. In my view, he was not in any way discredited.
[55]
The witness was also cross-examined by counsel for no 5, the security
guard. I consider it unnecessary to deal with
that portion
of the record, because no 5 did not feature in the appeal.
(ii)
Johanna Petronella Heyneke
[56]
She was employed as a forensic liaison manager at Vodacom head office
in Midrand as a fraud examiner, particularly with regard
to cell
phone records.
[57]
She testified about two cell phones, numbers 079[…] and 072[…]
respectively.
[58]
According to her evidence, number 0792[…] received an incoming
call from number 072[…] at 15:48 on 14 March
2009.
These
were "pre-paid" phones, and the witness could not indicate
who the owners of the phones were at the time.
According to the
judgment handed down by the learned Judge, the one phone was in the
possession of no 5 in February of 2009
and the other phone was
retrieved from no 2 at the time of his arrest.
[59]
Details of the use of these two numbers appear from exhibit "E"
which is a lengthy print out of the relevant
data.
[60]
The witness could not say much to advance the case of the state, and
she did not receive a great deal of attention for purposes
of
cross-examination. The learned Judge did not directly take this
evidence into account for purposes of his conclusions.
(iii)
Lucky Benedict Malaza
[61]
He was the original third accused of the original seven accused.
Charges were then withdrawn against him, and he testified
for the
state, in terms of the provisions of section 205 of the CPA.
Before he gave evidence, he was properly warned by the
learned Judge
in compliance with the requirements of that section.
[62]
He knows all the accused.
[63]
On 14 March 2009 he was at home when no 1 arrived. No 1 said he
was looking for the witness from the previous day.
He wanted
him to assist with a job that had to be executed in Trichardt.
[64]
No 1 asked him to accompany him to the home of no 2. There they
found no 2 and no 4.
[65]
No 2 told them that they had to wait for no 3.
[66]
After a while, no 3 arrived in his Combi. They got into the
Combi and no 2 introduced them to no 3.
[67]
While in the Combi, no 1 received a call. He told the rest of
them that no's 5 and 6 were waiting for them in Trichardt.
No 3
was driving.
[68]
In Trichardt, they parked at a taxi-rank and no 1 made a call.
It would have been to no 5 or no 6. Both
no 5 and no
6 came to the Combi. They were introduced to no 5 as a
security guard in Trichardt. No 5 explained
to them the reason
for the visit. They were there to "come and take money".
He told them where the money
was. The money was to be
taken at "A&E".
[69]
No 3 produced a firearm and gave it to no 4. No 1 also had a
firearm.
The
witness said "No, although it was not explained, but we already
knew that when firearms are involved, we were going to
go in there,
use firearms and take the money in a correct manner."
[70]
The firearms looked like "pistols, semi-automatics".
[71]
No 5 told them that inside the shop there are two people, the owner
and another one, and there was also a third person who
was about to
leave.
[72]
No 2 said he could not go too close, because he had worked at the
shop previously and is known there.
[73]
No 1 said he would enter the place with no 4 because they both had
firearms.
[74]
No 6 would stand in front of the shop and, while standing there,
would call no's 1 and 4 to tell them when the
owners
were leaving the shop. After a while no 5 called,
informing "us" to go nearer to the shop. No 5
also called no 6.
[75]
The Combi was driven closer, and no's 2 and 3 stayed in the Combi.
They went to park at a certain place where "we"
would find
them after the job was done. Obviously it was intended to be
the get-away vehicle.
[76]
No 6 told the witness not to stand still at a place but to move up
and down in front of the shop.
[77]
No 1 and no 4 went behind the shop.
[78]
When workers left the shop, no 6 called no 1 and no 4 informing them
that they must be ready as the workers were leaving.
[79]
After a while the witness heard gunshots. After he heard the
second shot he decided to leave. He went to where
no's 2 and 3
were supposed to have parked but they were not there. He
stopped a taxi which was going to the township, got
in and left.
He went to his home in Embalenhle.
[80]
At about 18:00 to 19:00 he went to go and listen to some disc jockeys
in the township. While he was there no 1 arrived.
No 1
asked him what happened to him, because the get away vehicle was
also missing. He told him that when he heard the
gunshots he
left and went home.
[81]
They agreed to meet the next day. The next day he met no 4
at a shop in Embalenhle.
[82]
No 4 told him that no 1 fired shots but no 4 did not fire any shots.
On the same day the witness met no 1. No 1
did not say anything
because he was scared. No 1 told the witness not to say
anything about the incident.
[83]
The witness said that he heard two shots.
[84]
In cross-examination, it was put to the witness that he was arrested
on 7 April 2009. He could not remember
the date but
confirmed that he was arrested. On that day he was not charged,
but he was arrested a second time and then he
made a statement.
The investigating officer told him that he was arrested with
regard to a case involving a crime committed
at A&E store and
that he was in the company of no 1 at the time.
[85]
There was an identity parade on 8 April 2009 whereafter the charges
against him and no 1 were withdrawn.
[86]
He was re arrested on 29 October 2009 and thereafter appeared in
the Kriel magistrates court. It was put to
him that no 1
was arrested on the same day. It was put to him that him
and no 1 were taken to the Kriel dam by
the police but he said
he was the only one taken to the Kriel dam because no 1 was
supposed to appear in court on that day.
Later it appeared that
him and no 1 were taken to the Kriel dam and he admitted that,
on that occasion, they were assaulted
and "suffocated" by
the police officers.
[87]
On 1 November 2009 he made a statement admitting his involvement.
It was put to him that he implicated his co accused
but he
said that they were already implicated at the time.
[88]
He was asked why he denied any involvement when he was first arrested
but made the statement about his involvement after the
second
arrest. He said, although no 1 told him not to tell
anybody what happened, the police told him to expose everything,
and
that he must not be afraid of telling the truth.
[89]
He knew no 1 before the incident. They were friends. He
also knew no 2. By then he had known no 2
for about a
year.
[90]
In further cross-examination, he did not deviate in any material way
from his evidence in chief, which I have dealt with.
I consider
it unnecessary to deal with his evidence in cross-examination about
the other four accused.
[91]
He denied that he was falsely accusing no 1 and no 2. There
were no problems between himself and no 1 so that there was
no reason
to falsely implicate no 1.
[92]
If no 2 were to deny seeing him on 14 March 2009, it would be a lie.
[93]
In further cross-examination on behalf of no 3, he said that the fact
that the police told him not to be afraid and to tell
the truth was
not the only reason why he made the statement. "The other
reason is that I felt ashamed when I heard that
there was a person
who was killed there, and the other thing is that we did not say ...
it was not said that we were going to shoot
there, they said we were
just going to go and take the money there."
[94]
In his judgment, the learned Judge paid a considerable amount of
attention to the evidence of this witness. After summarising
the evidence of the witness, he said:
"In the evidence Mr Malaza gave a very clear story, he explained
it well, in sequence, he never deviated from his story, there
was an
instance where he apparently had a slip of the tongue where he talked
about Bethal instead of Trichardt, and he admitted
that he made that
mistake, but on the whole he made a favourable impression on the
court. He never contradicted himself in
any specific way, and I
can find no reason purely on the demeanour and the way he gave
evidence to criticise him."
The
learned Judge also dealt with the criticism levelled against the
witness because he first denied involvement and then, after
the
alleged assault by the police, he spilt the proverbial beans.
In this regard the learned Judge said the following:
"The question is whether this other criticism, mainly about the
previous assaults, detracts from his evidence as such.
Nothing
prevents a person from whatever cause or reason, to change his views
and change his mind, even if he was assaulted.
That does not
prevent him from deciding eventually, freely and voluntarily, to make
a statement, and then to back it up by giving
evidence basically to
the same effect in court. There is no real deviation from his
evidence in court from the statement
made on 1 November 2009.
As far
as I am concerned he was a reliable witness and I have no doubt in
accepting his evidence
in toto
. The fact however still
remains that he is a single witness in respect of most of the
accused, the only one that is really
attached by other evidence is
accused 1.
His
evidence must be clear and satisfactory in all material respects.
As I say, he is already ..., I have already said he
gave clear
evidence, his story was cohesive and coherent, and there were no
contradictions whatsoever. I can find no reason
not to accept
his evidence, even on the basis of a single witness, which was given
in clear and satisfactory terms."
(iv)
Johannes Bhuthi Dludlu
[95]
He was employed as a security guard at A&E store at the relevant
time. He was on duty on 14 March 2009 between
06:00 and
18:00.
[96]
At 15:00 he heard gunshots and saw two men running. He asked
his colleague, no 5, to call the police which no 5
never did.
He ran after the perpetrators but lost them, and called the police.
[97]
Cross-examination on behalf of no 5 need not be dealt with for the
reasons I have mentioned.
(v)
Petrus Daniel Zeeman
[98]
He was a warrant officer in the South African Police with 34 years
service. Since 2007 he was attached to the Organised
Crime Unit
in Middelburg.
[99]
He conducted the identification parade at Hendrina on 8 April
2009.
[100]
At the parade, Mr Ebrahim Daya asked that no 8 on the parade (which
later turned out to be appellant no 1) had to step forward.
He
did not point him out. He also pointed out someone else,
Dludlu, who was not directly involved, as I have pointed out.
[101]
After the parade, Daya told him that person no 8 (no 1 as I have
explained) was recognised by him but was wearing an earring.
The witness also noticed the earring before the parade. He
noticed the person putting on an earring before the parade.
He explained to Daya that suspects having to appear at a parade
were entitled to change their clothing "sodat hulle met
gemak op
die parade kan verskyn".
[102]
This evidence served to corroborate the evidence of Daya on this
particular subject.
[103]
Then followed a trial within a trial in respect of statements and
pointings out made by no 5. For reasons mentioned,
I need
not deal with this aspect.
(vi)
Jonathan Gerhardus Botha
[104]
He was a warrant officer with 12 years service in the Secunda Crime
Intelligence Unit.
[105]
He testified about the cell phones to which I have referred.
[106]
Cell phone with number 072[…] was confiscated from no 2 at the
time of his arrest.
(vii)
Mosiwa Thlalele
[107]
He was a warrant officer in the Police with 19 years service.
[108]
After the incident, some time in 2010, he arrested no 5 in Ermelo.
No 5 was in possession of a cell phone with
number 073[…].
[109]
After the evidence of this witness, certain admissions were recorded
in terms of section 220 of the CPA. The correctness
of a photo
plan and key compiled by one Johan Hendrik Frederik Ras, exhibit "D",
was admitted. The same applied
to a photograph of the Combi and
the correctness of a ballistic report, exhibit "F".
The medical evidence
with regard to Mohseen Daya, exhibit "G",
was also admitted.
I add
that Mohseen also testified. He merely confirmed that he was
shot in the leg and also broke "my finger bone"
as a result of the attack which was perpetrated upon him during the
robbery of 14 March 2009. He spent about ten nights
in
hospital. He could not identify any of the perpetrators and he
was not cross-examined.
[110]
After the state case was closed, an application for the discharge of
no's 1 and 2 in terms of section 174 of the CPA was refused.
[111]
Thereafter, all six the accused closed their cases without giving
evidence.
THE
JUDGMENT
[112]
In his well-reasoned judgment, the learned Judge summarised the
evidence.
[113]
He dealt comprehensively with the evidence of Mr Ebrahim Daya.
He also dealt with the identification parade. He
found that not
much emerged from the cross-examination.
[114]
He found that, on the evidence, particularly that of Daya and Malaza,
there was clear
prima facie
evidence of the involvement
of no's 1 and 2. He strongly relied on the evidence of Malaza
for the convictions, in particular,
of no's 2, 3, 4, 5 and 6, as well
as that of no 1, where the evidence of Daya served as
corroboration.
[115]
In my view, the evidence of Daya was convincing as he had three
opportunities to identify no 1.
[116]
I have dealt with the learned Judge's careful analysis of the
evidence of Malaza. It appears from his judgment
that he
took the relevant cautionary rules into account.
[117]
He dealt with the question of common purpose, on which basis the
accused were charged, as appears from the documentation from
the
Director of Public Prosecutions, and also with the mutual possession
of the firearms and ammunition in this regard.
[118]
In deciding whether or not there is room for this Court of Appeal to
interfere with the judgment and the convictions, the
following
principles have to be taken into consideration:
• Not one of the accused chose to give evidence to rebut the
version presented by the state witnesses.
In
S v Boesak
2001 1 SA 912
(CC) the following is said at
923D F:
"The right to remain silent has application at different stages
of a criminal prosecution. An arrested person is entitled
to
remain silent and may not be compelled to make any confession or
admission that could be used in evidence against that person.
It arises again at the trial stage when an accused has the right to
be presumed innocent, to remain silent, and not to testify
during the
proceedings. The fact that an accused person is under no
obligation to testify does not mean that there are no
consequences
attaching to a decision to remain silent during the trial.
If there is evidence calling for an answer,
and an accused
person chooses to remain silent in the face of such evidence, a court
may well be entitled to conclude that the
evidence is sufficient in
the absence of an explanation to prove the guilt of the accused.
Whether such a conclusion is justified
will depend on the weight of
the evidence."
In my view, the learned Judge was correct in finding that a proper
case was made out against no 1 and no 2 which called
for an
answer. His decision to convict them, is, in my view, fortified
by the principles reaffirmed in
Boesak
, and other cases.
I need not express a view about the conviction of the other accused,
and will refrain from doing so.
• It is trite that a Court of Appeal must be slow to interfere
with the findings of fact of the trial court. This well-known
principle is confirmed in the line of cases following upon the
decision in
R v Dhlumayo and Another
1948 2 SA 677
(A).
See also
S v Francis
1991(1) SACR 198 (A) at 204c-f.
I could find no material misdirection on the part of the learned
Judge which would allow this Court of Appeal to interfere with
his
findings of fact as required in the cases I have mentioned.
[119]
In the result I have come to the conclusion, and I find, that the
appeal against the convictions of no's 1 and 2 must fail.
[120]
I turn to the sentence.
[121]
I have mentioned full details of the sentences imposed in respect of
no's 1 and 2.
[122]
I find no basis upon which this Court of Appeal, with its limited
powers when it comes to considering the sentence imposed
by the trial
court, can interfere with these sentences.
[123]
Consequently, the appeal against the sentences ought to fail, subject
to the following remark: I have mentioned the arithmetical
miscalculation of the learned Judge when he stated that the sentences
he imposed in respect of no 1 resulted in an effective period
of
imprisonment of twenty years. Where he ordered that eight years
of the count 2 sentence was to run concurrently with the
sentence on
count 1, only four years remained to be served in addition to
the total concurrent sentence of twelve years.
Consequently,
the remark by the learned Judge about twenty years should be
corrected to read sixteen years, in order to avoid confusion,
particularly in the ranks of the prison authorities.
THE
ORDER
[124]
I make the following order:
1. The appeal of the first and second appellants in respect of their
convictions is dismissed.
2. The appeal of the first appellant against the sentences imposed is
dismissed, except that the statement made by the learned
Judge that
he is to serve an effective imprisonment period of twenty years is
set aside and corrected to read sixteen years.
3. The appeal of the second appellant against his sentences is
dismissed.
W R C
PRINSLOO
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
A404/2014
I agree
N
RANCHOD
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
I agree
H J
FABRICIUS
JUDGE
OF THE GAUTENG DIVISION, PRETORIA
HEARD
ON: 12 FEBRUARY 2016
FOR
THE 1
ST
APPELLANT: M J MOSOPA
INSTRUCTED
BY: HOFFMAN LESHILO ATTORNEYS
FOR
THE 2
ND
APPELLANT: ADV MOENG
INSTRUCTED
BY: PRETORIA JUSTICE CENTRE
FOR
THE RESPONDENT: M M MASHUGA
INSTRUCTED
BY: THE DIRECTOR OF PUBLIC PROSECUTIONS