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[2007] ZASCA 134
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S v Pakane and Others (43/07) [2007] ZASCA 134; [2007] SCA 134 (RSA) ; 2008 (1) SACR 518 (SCA) (28 September 2007)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case Number 43/07
In the matter between
MVUSELELO
PAKANE
...........................
1
st
Appellant
TAMSANQA
SIGAGAYI
...........................
2
nd
Appellant
KHAYELIHLE
MAHOGO
...........................
3
rd
Appellant
and
THE
STATE
...........................
Respondent
Coram:
MTHIYANE, MAYA JJA et HURT AJA
Date
of hearing: 30 AUGUST 2007
Date
of delivery: 28 SEPTEMBER 2007
Summary:
Murder – defeating the ends of justice – A police officer
killing the deceased during a police patrol in the
presence of his
junior colleagues and subsequently concealing his actions to evade
detection – convicted of murder and defeating
the ends of
justice and sentenced to 15 and eight year terms of imprisonment –
his colleagues failing to report the incident
and consequently
convicted of being accessories after the fact to murder and sentenced
each to eight years imprisonment – putative
private defence
raised by appellants rejected by the trial court – no
misdirection by the trial court – the convictions
and sentences
confirmed on appeal.
Neutral
citation: This judgment may be referred to as:
Pakane
v
The State
[2007]
SCA 134 (RSA)
JUDGMENT
MAYA JA
MAYA JA
[1]
This
appeal arises from events which occurred in the early hours of 13
December 1999 at Coffee Bay in the Eastern Cape. The appellants
were
at the time police officers of varying ranks, stationed at a local
police station, Mapusi. At about 02h40, they were despatched
in a
police van driven by Sergeant Sokuyeka to investigate a report of a
shooting incident near the backpackers’ hostel in
the village.
The second appellant, then a sergeant, was the most senior officer in
the group. Both his co-appellants were constables.
During their foot
patrol in the vicinity of the place where the alleged shooting
occurred, the second and third appellants fired
a volley of shots.
Shortly thereafter, Mr Louis Fourie, a local resident (‘the
deceased’) who, unbeknown to the appellants,
had been
patrolling the area, was found dead with gunshot wounds, in the
nearby bushes. Several R4 and 9mm empty cartridges and a
live bullet
were subsequently recovered by the police at the scene.
[2] Some three and a half years later, the appellants
were arrested in connection with the deceased’s death. They
were subsequently
arraigned on charges of murder and of defeating the
ends of justice. They denied guilt. The court below (Miller J in the
Mthatha
High Court) convicted the second appellant as charged. He was
sentenced to 15 years imprisonment for the murder and eight years for
defeating the ends of justice which was ordered to run concurrently
with the 15 year sentence. His co-appellants were convicted only
of
being accessories after the fact to murder and were each sentenced to
eight years imprisonment. They appeal against their convictions
and
sentences with the leave of this court.
[3] The issues on appeal are whether the evidence
supports the convictions and the appropriateness of the sentences
imposed on the
appellants.
[4] From the evidence adduced from several witnesses at
the trial, the following picture emerged. A Mr Lang, one of the
deceased’s
neighbours, telephoned the police at 02h30 on the
fateful morning to report that shots had been fired by unknown people
in the Lagoon
Hotel area. He requested police assistance. The
appellants were roused from sleep in their police barracks and
hastily despatched
to the scene accompanied by another police van
which conveyed their Station Commander, Captain Booi, and Sergeant
Ngxumza. In addition
to the State issued R4 rifle with serial number
806 295 A1 (‘rifle 295’) carried by the second appellant,
they were each
armed with Z88 9mm pistols. The two vehicles separated
along the way as a strategy to close off all possible escape routes.
[5] According to the appellants, the only witnesses to
the shooting which subsequently occurred, they heard the sound of
gunfire as
they approached their destination. To avoid an ambush,
they decided to leave their vehicle, which was not armoured, in
Sokuyeka’s
care some distance away and proceeded on foot. They
walked in a tight single file along the southern edge of the tarmac
road towards
the Lagoon hotel, led by the second appellant. It was
dark and overcast. 15 to 20 minutes later, about 200m from where they
left
their vehicle, the second appellant reported to his companions
that he saw a figure carrying a big firearm standing in the middle
of
the road, about 12 to 15 paces away. The third appellant confirmed
that he also saw the shadowy figure but the first appellant
saw
nothing because of poor night vision.
[6] There are a various contradictory versions regarding
the next steps taken by the second appellant both in the confessions
that
he and the third appellant made to magistrates (admitted in
evidence in terms of s 220 of the Criminal Procedure Act 51 of 1977
(the
Act), albeit their subsequent allegations of duress by the
investigating officers) and their oral testimony, a number of
contrary
versions having been put to the trial court by the time the
proceedings concluded. I will therefore confine myself to the
evidence
which the second appellant gave in court. He testified that
having spotted the shadowy figure, he shouted a warning in English
and
in isiXhosa that they were police officers and ordered it to stop
whereafter he fired warning shots with the rifle into the air.
Seeing
no reaction from the figure, he repeated the same process. The first
and third appellants took cover in a ditch on the side
of the road.
[7] When the second warning shot was fired, the figure
turned to face them and raised the firearm to a firing position. The
second
appellant shot at it and continued firing even after it
disappeared until his rifle jammed. He attempted to clear the rifle
without
success. During this interval, the third appellant emerged
from his hiding spot and fired a shot with his pistol towards the
bushes
across the road into which the figure had disappeared. In the
meantime, the second appellant had dropped to the ground, drawn his
pistol and fired shots in the same direction to discourage any other
would-be attackers.
[8] Thereafter, the appellants regrouped where they had
left their vehicle, without once crossing the road to the side where
the figure
had disappeared, and, on the instruction of the second
appellant, drove back to the police station. There, the second
appellant placed
the rifle in the strong room and booked out another
R4 rifle with serial number 806 291 A1 (‘rifle 291’).
They then returned
to the scene and joined Lang and his group and
Captain Booi in the search for the deceased who had been reported
missing. He was
subsequently found already dead, lying on his back,
by his night guard, Mr Beja, near the left edge of the road, at the
turnoff point
towards the hotel. Members of the Serious and Violent
Crimes Unit (SVC ‘unit’) arrived from Mthatha and
commenced investigations.
[9] Medical evidence led by the State
established that the deceased had sustained two gunshot wounds (a) on
the front left chest which
lacerated his lungs and aorta, ruptured
the heart and fractured his ribs with an exit on the right back chest
and (b) on the right
jaw into the mouth cavity. There was also a
superficial V-shaped laceration on the right shoulder which the
district surgeon (Dr
Monahali) believed was probably caused during
his fall. She described the lacerated star-shaped face injury as a
contact wound inflicted
from a distance of no more than 15cm away.
According to the specialist forensic pathologist, Professor Scholtz,
the special features
of the wounds indicated that the one in the
chest was inflicted by a high velocity R4 rifle and that the one in
the jaw was inflicted
at, close proximity, by a 9mm pistol. These
views were also endorsed by the ballistics expert called by the
State, Inspector Dreyer.
[10] The medical experts concluded that the chest wound
was the mortal one. The order in which the wounds were inflicted
could not
be ascertained conclusively but Scholtz described the one
in the face as ‘perimortem’ ie sustained at the most not
long
after death because there was sufficient vital reaction in the
tissues. The fate of the bullet which caused the wound was unknown
and the medical experts expressed a view that it possibly remained
lodged in the deceased’s skull or had exited through his
mouth
cavity.
[11] Inspector Mithi of the SVC unit
was the initial investigating officer of the case and one of the
police officers who attended
the scene directly after the incident.
He testified that when found, the deceased had in his hands a torch
and a big 12 bore protector
firearm tied to his wrist. He personally
emptied the firearm which had its safety catch on. He found bullets
in its magazine and
none in the chamber – a clear indication
that the firearm was not ready to be discharged. He stated that he
suspected from
the onset that police may have been involved in the
shooting but his enquiries from those present met no response. In the
course
of his investigations he requisitioned all the service
firearms belonging to Coffee Bay police station and sent those handed
to him
for ballistics testing.
[12] Two people were, at some stage,
arrested in connection with the matter and kept in custody for two
years before they were released
without being charged. Investigations
seem to have stalled thereafter and no further progress appears to
have been made towards solving
the case until December 2003, when it
was reallocated to Inspector Coetzee of the East London SVC unit.
Investigations commenced
afresh. A reconstruction of the scene (made
possible by the fact that the paint markings of the original scene
still remained visible
on the road) established amongst things that
the most likely position from which some of the cartridges found
there were discharged,
was on the same side of the road from which
the deceased’s body was recovered, just a few metres behind the
body.
[13] It is at this stage that it was
discovered that two pages of the occurrence book relating to events
of 12 December 1999 (which
would have included entries of Lang’s
distress call to the police station and the appellants’
departure from the station
in response to that call) had been torn
out and the relevant entries rewritten. In this regard, Ngxumza, who
was on duty when Lang
called, testified for the State that on his
departure from the station, the second appellant merely took rifle
295 from the other
duty officer, Sgt Mjindi, without booking it out
(a version which the trial court correctly rejected having regard to
the other relevant
evidence). When he and Captain Booi heard the
gunfire after the party separated, they looked for the appellants and
followed their
van to the station. Upon their arrival there, the
second appellant instructed him to book out rifle 291 on his behalf
and to rewrite
the entries preceding Lang’s call. It is then
that he noticed that two pages had been torn out of the occurrence
book, which
was against procedure as they were required to correct
mistakes only by cancelling and initialling them.
[14] It further came to light that
rifle 295 was never submitted for a ballistics examination but that
rifle 291 had instead been
submitted and tested negative, for obvious
reasons. Coetzee duly sent rifle 295 for ballistics testing and it
was positively linked
to some of the cartridges recovered at the
scene. The second appellant’s explanation for the omission was
that Mithi only demanded
and was given firearms set out in his own
list which excluded rifle 295. He said that this rifle was kept back,
in any event, because
it was an exhibit in another case. Mithi denied
this version on the basis that it was impossible for him, as an
outsider with no
connection to Mapusi police station, to have drawn
an inventory of items of which he had no knowledge.
[15] Transcripts of the occurrence
book relating to the R4 rifles show that amongst the items handed
over by the previous duty officer,
Sgt Kanyo, to Mjindi at shift
change, when the latter reported for duty at 21h45 on 12 December
1999, was rifle 295, with 35 rounds
of ammunition. No mention is made
of rifle 291. At 02h30 a record of Lang’s call is made and at
02h40 the appellants are shown
to depart to investigate the
complaint. 20 minutes later, at 02h55 the second appellant books out
rifle 291 with 35 rounds of ammunition
which he returns at 08h30
still loaded with 35 rounds of ammunition. Rifle 295 is mentioned
again at the end of the shift, at 06h05,
when it is handed over to
the next duty officer, with no ammunition.
[16] The first and third appellants
admitted their failure to report the shooting incident but justified
it on the basis that they
were not obliged to do so as their
immediate superior, the second appellant, was present at the scene
and that it was the latter’s
responsibility to report the
matter to the relevant authorities. The second appellant, on the
other hand, alleged that he had made
an oral report at the scene to
Inspector Voko who had since died at the time of the trial.
[17] It is against this factual
background that the court below convicted the appellants. The trial
judge was favourably impressed
by the State witnesses and made
adverse credibility findings against the appellants. After a
comprehensive and careful analysis of
the evidence, he rejected the
defence version and concluded that the only reasonable inference
1
that could be drawn from the facts
was that ‘[the second appellant] on seeing a figure,
over-reacted and immediately fired at
it with the intent of killing
the target…’; that the appellants’ evidence that
they never crossed the road was
false in the light of the contact
wound which, on the probabilities could only have been inflicted by
one of them. In the learned
judge’s view, the wound marked ‘the
beginning of a cover up of the shooting by [the second appellant]’
upon ascertaining
the deceased’s identity and realising his
mistake. He concluded that although there was no direct evidence as
to who inflicted
the contact wound, it could safely be inferred from
all the facts that the appellants were together in close proximity
when it was
inflicted and that they all left the scene ‘aware
that the deceased was shot in the face at the closest of range’.
[18] The main contentions advanced on
the appellants’ behalf in attack of the convictions were that
the court below had erred
by drawing ‘wide inferences’
which totally ignored the defence version and the defences raised by
the second appellant.
While the numerous discrepancies (relating to
material aspects of their testimony which did not redound to the
appellants’
creditworthiness) in the defence version and the
appellants’ appalling quality as witnesses were conceded,
counsel contended
that this did not warrant a complete rejection of
their testimony.
[19] The thrust of the second
appellant’s defence at the trial was that he fired shots at the
figure in the belief that his
life and those of his colleagues were
in danger. The defence thus raised in answer to the murder charge was
that of private defence
alternatively putative private defence. The
requirements of these defences are trite. In the case of private
defence use of force
is justified if it is reasonably necessary to
repel an unlawful invasion of person, property or other legal
interest.
2
The test of whether the accused acted
justifiably in defence is objective. Putative private defence may, on
the other hand, be raised
successfully for lack of intention where
the accused acted defensively in the honest but erroneous belief that
his life or property
was in danger.
3
[20] As the trial court found, I do not believe that the
second appellant can rely on either defence in the circumstances of
this
case. I have extreme difficulty reconciling the appellants’
evidence (whichever of their contradictory versions is chosen)
as to
precisely what occurred when the deceased was shot, with the
objective facts. The evidence shows clearly that the deceased
was
aware that the police had been summoned by Lang and were, reportedly,
on their way. It seems to me most unlikely that he would,
with that
knowledge, react by assuming an aggressive stance when warned of
police presence as the second and third appellants would
have it.
This is particularly so if account is taken of the appellants’
version that warning shots were fired with the rifle.
One would
imagine that the most natural reaction for a person in that
situation, aware that he is covered with a powerful automatic
rifle
whether by the police or impostors (a suggestion was made on the
appellants’ behalf that the deceased may well have tried
to
defend himself because he did not believe that the appellants were in
fact members of the police) would be to surrender or flee.
[21] The appellants’ version in
this regard is further rendered more improbable by the fact that when
the deceased was found
the safety catch of his firearm was still on
and he even held his torch in the other hand. Much was made by the
appellants’
counsel of Beja’s evidence that he had seen a
policeman from Mapusi police station removing bullets from the
deceased’s
firearm before the arrival of the Mthatha SVC unit.
This, in his submission (made for the first time in this court)
suggested that
‘the scene was contaminated and the firearm
tampered with’ before the SVC unit’s arrival. It was
therefore possible
to infer that the deceased was readying himself to
discharge his firearm when he was shot, so went the argument. The
defence counsel
also emphasized in support of this argument that the
entrance wound caused by the rifle bullet was on the chest, arguing
that this
supported the proposition that the deceased had turned to
face the appellants on hearing their warning.
[22] There is simply no merit in these submissions. The
uncontested evidence of Sgt Paraffin stationed at Mapusi at the
relevant time,
who was the first and only officer to investigate the
scene before handing it over to the SVC unit on their arrival, was
that he
found the scene guarded and did not at any stage touch the
deceased or his firearm. This testimony, viewed with Mithi’s
explanation
about the state in which he found the firearm, bearing in
mind that both policemen were found satisfactory witnesses by the
court
below, puts paid to the suggestions made in this regard. The
entrance wound on the chest takes the matter no further as it could
as easily be inferred that he was already facing the appellants’
direction when they confronted him.
[23] It is undoubted on the evidence
that the deceased was not ready to shoot when he was shot.
Accordingly I infer, as did the court
below, that he could not have
assumed a threatening position as alleged by the second appellant. In
the circumstances, the second
appellant had no reason whatsoever to
believe that his group’s lives were in danger and that it was
necessary, in self defence,
to shoot the deceased. The ineluctable
conclusion is that he deliberately fired shots at the deceased when
he posed no threat to
them, without first ascertaining his identity
and issuing any warning. His infliction of the fatal wound was thus
unlawful.
[24] There is then the critical issue
of the contact wound which the defence version woefully failed to
explain. Contentions made
on the appellants’ behalf in this
court differed materially from those made in the trial proceedings
that he could have been
shot by the unknown assailants. Here, it was
argued that the medical experts’ assessment of the wound
conflicted, as the district
surgeon’s opinion was that the shot
was not a contact wound as it was fired at about 15cm away.
Monahali’s testimony
in this regard is set out above and
counsel obviously misunderstood it. Suffice it to point out that all
the experts agreed, without
challenge, that the wound bore a classic
feature of a contact wound, as evidenced by burnt edges around its
entrance.
[25] Two questions now arise. Who
inflicted the contact wound? When (and how) was it inflicted in the
established chain of events?
To my mind, it is highly improbable that
the deceased was already shot when he met the appellants. On the
appellants’ version
that it took them about 15 to 20 minutes to
walk from their vehicle until they encountered him, this after they
heard gunfire as
they drove down towards Lagoon Hotel, the deceased
would have been wandering in the bush with a severe wound to his face
for that
duration instead of returning home, nearby, to seek help.
Significantly, neither Lang, who was in the vicinity waiting with
other
neighbours for the police, nor Beja whom the deceased had
recently left at his gate, heard any sound of gunfire other than that
which
prompted them to venture into the dark and conduct a search for
the deceased, only to find him mortally wounded.
[26] Similarly, Booi, Ngxumza and Sokuyeka (who
testified for the State in terms of s 204 of the Act and was at the
conclusion of
the trial granted immunity from prosecution in terms of
the provisions of that section on a finding that he was a
satisfactory witness)
denied that they heard any gunfire as they
approached the scene. It is, therefore, most peculiar that only the
appellants attested
to this earlier shooting episode. Moreover,
Scholtz opined that judging by the blood patterns on the deceased’s
face, he was
most probably shot whilst lying down in the position in
which he was subsequently found. I am satisfied, in the
circumstances, that
the trial judge was correct to dismiss this
hypothesis as a ‘fabrication made in an attempt to create the
impression that …
unknown shooters [who] were trigger happy
and in the close vicinity’ had inflicted the contact wound.
[27] It is equally improbable that
the deceased was shot in the face by an unknown person after being
mortally wounded by the second
appellant. Such a possibility would
mean that the random shooter found and shot a corpse. This scenario
is not supported by any of
the evidence. Scholtz estimated the
deceased’s survival time after the infliction of the fatal
wound between three to five
minutes. The probabilities, especially
considering Scholtz’s description of the nature of the contact
wound, and the fact that
nothing was apparently taken from the
deceased, inexorably lead to an inference that it was inflicted after
the chest wound, obviously
to ensure that the deceased was dead.
[28] The only reasonable inference
then left to draw is that the deceased sustained both gunshot wounds
in the shooting incident involving
the appellants. This finding makes
a lie of the appellants’ version that they never crossed the
road to the side on which the
deceased’s body was found –
not surprisingly, having regard to the uncontradicted expert evidence
placing the shooter,
in relation to some of the R4 cartridges linked
to rifle 295 found at the scene, on that side of the road, in stark
contrast to their
version. Although the evidence does not establish
which of them inflicted the contact wound,
4
it is certain, however, on their own
version that they remained together at all material times. In that
case, it is inconceivable
that any one of them left the scene unaware
that the second appellant had seriously wounded the deceased and that
one of them had
then shot the deceased in the face at close range.
[29] It was contended for the first and third appellants
that their convictions were flawed because their intention to assist
the
second appellant evade justice (or the fact that they were even
aware that he had committed a crime) was not established. In this
regard a number of submissions were made which the trial court
correctly rejected. The court below also did not accept their excuse
for not reporting the incident and convicted them of being
accessories after the fact of the deceased’s murder on the
basis
of their admitted failure to report the matter.
[30]
Dolus
is indeed an essential element of the
offence of being an accessory after the fact and the State must
accordingly establish that the
alleged accessory knew that the person
whom he helped had committed a crime.
5
In this case it was common cause that
these appellants were aware of the shooting incident in which, as
already mentioned, the third
appellant even participated. It is not
in doubt that as policemen, they had a duty to report the shooting
incident. This duty flows
from sec 205 (3) of the Constitution of the
Republic of South Africa, 1996 which provides:
‘
The objects of the police service are to
prevent, combat and investigate crime, to maintain public order, to
protect and secure the
inhabitants of the Republic and their
property, and to uphold and enforce the law.’
In
K
v Minister of Safety and Security
6
O’Regan J said:
‘
[P]art of the three policemen’s work
[is] to ensure the safety and security of all South Africans and to
prevent crime. These
obligations arise from the Constitution and are
affirmed by the
South African Police Service Act 68 of 1995
.’
And in
S
v Williams and others
7
this court held:
‘
There is no doubt that a police officer has
a duty to report a crime. It arises,
inter
alia
, from the provisions of statute
which, at the relevant time, was s 5 of the Police Act, 1958. In
terms of this section one of the
functions of the police is to
investigate crimes. What remains for decision is whether the failure
to carry out the duty results
in criminal responsibility if the other
requirements of accessorial liability are present. I have no
difficulty in holding that it
does. Any other answer would give rise
to surprise and even indignation.’
[31] Failure by a police officer to
report a crime with the intent to assist the main perpetrator to
evade conviction thus renders
him guilty of being an accessory after
the fact of that crime. The first and third appellants’ excuse
for their failure was
based on sec 13(2) of the Police Service Act
which requires a police officer who ‘becomes aware that a
prescribed offence has
been committed [to] inform his or her
commanding officer thereof as soon as possible.’ In this case
their commanding officer,
behind whose presence at the scene they
seek to hide, was the very offender. In my view, their interpretation
of the provisions of
section 13 (2) is a brazen perversion of the
section which cannot be countenanced, least of all from law
enforcement officers, both
whom had been in the police force for many
years. They silently watched police investigations flounder for three
years and two innocent
people languish in detention for two of those
years. It would be absurd to accept that they honestly believed they
had no obligation
to report the shooting incident because they were
with their commanding officer when it occurred. Their flagrant breach
of their
legal duty, patently intended to shield the second appellant
from prosecution, rendered them accessories after the fact to the
murder.
[32] The State not only opposed the
appeal but persisted with argument advanced without success in the
court below, that this court
should alter the convictions of the
first and third appellants to murder on the basis of common purpose.
State Counsel argued further
that at the very least, the conviction
of the third appellant, who admitted firing a shot at the scene,
should be altered to that
of attempted murder. In his submission, the
fact that the State had not lodged a cross-appeal was no impediment
as this court is
vested with the necessary powers by
sec 322
of the
Criminal Procedure Act.
8
This
section empowers a court of
appeal to alter a conviction where it is convinced that the trial
court, because of a wrong finding of
fact or a mistake of law,
convicted the appellant of a less serious offence than that which, in
terms of the indictment, he should
have been convicted of.
9
[33] I do not propose to dwell on this aspect. As the
court below found, there is no evidence to support a finding that the
appellants
had a prior agreement to lie in ambush with the intention
of shooting people on sight. The trial judge gave the submission
thorough
consideration and gave full reasons, with which I agree, for
its rejection. Neither is there any evidence that the third appellant
fired a shot at the deceased. The State’s contentions in this
respect similarly lack factual basis and cannot stand.
[34] I turn to deal with the second
appellant’s challenge of his conviction for defeating the ends
of justice. This offence
consists in unlawfully and intentionally
engaging in conduct which defeats the course or administration of
justice.
10
In this respect the State relied on
the following - the contact shot, the swapping of the R4 rifles, the
torn pages of the occurrence
book and second appellant’s
instructions to Ngxumza to rewrite entries without informing a
superior officer about the state
of the book. State counsel argued
that the appellants had fabricated a version for their return to the
police station, knew that
rifle 295 would be swapped and that
documentary evidence linking the second appellant to it would be
altered or destroyed with the
deliberate intent to defeat the course
of justice. Appellants’ counsel, on the other hand, contended
that the State had done
no more than adduce circumstantial evidence
which the court below should have rejected as the second appellant
had given a plausible
account.
[35] Regarding the first and third
appellants’ role in the events following the contact shot, the
court below found although
it was clear that they had assisted their
co-appellant in his endeavour to evade justice, it would be
inappropriate to convict them
for defeating the course of justice
because to do so would amount to a duplication of convictions as it
had convicted them for their
failure to report the crime. I agree.
There is in our law generally no distinction between accessorial
liability and defeating the
course of justice.
11
The State’s bid to have them
convicted on this charge on the basis of common purpose must also
fail.
[36] However, the second appellant’s position is a
different matter. First, as regards the swapping of the rifles, he
gave a
completely different reason to the magistrate during his bail
proceedings. In that court he said nothing at all about rifle 295
jamming
up and stated instead that he did it because he was in shock
and panicked because it was the first time he found himself in that
situation. Furthermore, one wonders why he would choose to return to
his base which was about 2km away to fetch another rifle leaving
the
trail to get cold instead of calling Sokuyeka, Booi and Ngxumza, who
were in the vicinity, for reinforcement. It must follow
that the
version that the rifle jammed, which he surprisingly did not report
to the duty officer Mjindi when he booked out rifle
291, was false.
[37] Second, regarding the alleged oral report he made
to the late Voko, it was common cause that the latter did not submit
a formal
report to his superiors about the shooting incident as he
was enjoined by the relevant regulations governing police duties,
including
their use of firearms. On the facts, it is highly
improbable that Voko would have allowed the investigation to take the
course it
did with the knowledge that the deceased had probably been
shot by a member of his unit acting in private defence. Surprisingly,
the second appellant did not mention the alleged report to Voko in
his confession to the magistrate. His explanation there was that
he
had not reported that they had fired shots at the scene because it
was his first time to experience such a situation. It is State
counsel’s challenge to him to explain the glaring contradiction
between this explanation and his oral testimony in court which
prompted his attempted disavowal of the statement (voluntarily
admitted in evidence by his own legal representative) on claims made
for the first time at that stage which were not even put to Coetzee
when he testified, that he was ill-treated and told what to say
by
the police! I have no hesitation rejecting his version that he did
report the shooting incident as a complete fabrication.
[38] Third, as to the swapping of the
rifles, it was argued on the second appellant’s behalf that the
State did not prove that
he tampered with the occurrence book or
tried to conceal the fact he had rifle 295 in his possession during
the mission. It seems
a remarkable coincidence having regard to the
sequence of events that the second appellant, who was not the most
senior member in
the station, would be the one to present the duty
officer with a torn book with instructions to perform an irregular
act. Equally
striking is the fact the torn pages related to fresh
events of that very morning. A perusal of the relevant entries,
starting from
the previous evening, shows that but for the Lang
report, it was an uneventful shift. For what conceivable reason then
could one
remove the missing pages and who else (except someone
involved in the contentious shooting incident) in the circumstances
would have
an interest in those pages? I have difficulty with the
second appellant’s claim that he did not book out rifle 295
because
they left in a hurry yet he managed to book out rifle 291 on
their return, when there was greater cause for urgency. There is no
doubt in my mind that his version in this regard is false. I agree
with the conclusion of the court below that he tampered
12
with the occurrence book to remove
proof that he had booked out rifle 295, which, very conveniently, was
subsequently not sent for
a ballistics test. Therefore, his
conviction for defeating the course of justice was proper.
[39] The principles governing the
adjudication of appeals are well established. In the absence of
demonstrable and material misdirections
by the trial court, its
findings are presumed to be correct and will only be disregarded if
the recorded evidence shows them to be
clearly wrong.
13
As indicated above, the credibility
findings made by court below were not challenged, correctly so, in my
view. Neither have I found
any misdirection in its reasoning and
findings of fact. None of the inferences it drew conflict with the
proven facts. No cogent
argument was advanced on the appellants’
behalf to persuade us otherwise. In testing the appellants’
version against
the inherent probabilities, I took into account that
it cannot be rejected merely because it is improbable; that it can
only be rejected
on the basis of inherent probabilities if it can be
said to be so improbable that it cannot reasonably possibly be true.
14
In my opinion, no fault can be found
with the rejection of their evidence. I am satisfied not only that
their version is improbable
but that beyond any reasonable doubt it
is false. The convictions should, therefore, not be disturbed.
[40] It now remains to consider the
sentences. The question which this court must determine in this
respect, which if answered in
the affirmative will entitle it to
interfere, is whether there was material misdirection by the trial
judge in his assessment of
the factors relevant to the determination
of sentence or, if not, whether the sentences imposed are so
shockingly inappropriate as
to give rise to the inference that he
failed to exercise his discretion properly.
15
[41] With regard to the murder
conviction, the court below considered the provisions of
sec 51
of
the
Criminal Law Amendment Act 105 of 1997
which prescribe a minimum
sentence of 15 years imprisonment absent substantial and compelling
circumstances justifying a lesser sentence,
and found that none
existed. The criteria which a sentencing tribunal should consider in
determining whether or not such circumstances
exist were enunciated
in
S v Malgas.
16
Those particularly pertinent for
present purposes are: that a court has to consider all the
circumstances traditionally taken into
account by courts when
sentencing offenders; that for the circumstances to qualify as
circumstantial and compelling they need not
be exceptional in the
sense of seldom encountered or rare and that though the prescribed
sentences require a severe, standardised
and consistent response from
courts unless there were, and could be seen to be, truly convincing
reasons for a different response,
the statutory framework still left
the courts free to continue to exercise a substantial measure of
judicial discretion in imposing
sentence.
17
[42] The appellants’ counsel did not draw our
attention to any specific misdirection in the reasoning of the court
below (in
respect of any of the sentences) and argued merely that
they were too harsh. Clearly, there are weighty mitigating factors in
the
second appellant’s favour. He is in the prime of his life.
He is a first offender with a long unblemished record with the police
force. He is married with young children and is the sole breadwinner
of a large extended family with a myriad of responsibilities
attaching to that mantle. The case must have had a devastating effect
on his personal life. His devotion to his calling is evident
from his
rise through the police ranks. He was not even on duty on the day in
question but dutifully answered the order to embark
on a dangerous
mission in the dead of the night. It is also a fact that the
deceased’s killing was not premeditated and that
he bore him no
ill-feeling. The offence was committed in the course of duty in
pursuit of armed and potentially dangerous individuals.
[43] However, these factors cannot be viewed in a vacuum
and must be weighed against the aggravating features of the case; the
serious
nature of the offence especially when committed by a police
officer who has a legal duty to protect the public and his lack of
remorse,
amply demonstrated by his iron resolve to conceal the truth
to the bitter end – from the elaborate steps he took to cover
up
and hamper police investigations; the shooting of the deceased in
the head of which, if not perpetrated by him, he was nonetheless
aware and should have prevented especially as the leader of the
mission; knowingly and silently watching innocent people languish
in
jail for two years for a crime he committed, the false statements
made to the magistrate and police disciplinary tribunal and
giving
false testimony in court.
[44] These are all factors which the
court below took into account in its judgment. I am satisfied that it
properly applied the sentencing
guidelines in
S
v Malgas
and
carefully considered whether there were truly convincing reasons for
departing from the prescribed minimum sentence in reaching
its
conclusion. The imposition of the prescribed sentence of 15 years
was, therefore, appropriate in the circumstances.
[45] The same considerations apply in
respect of the other sentences, including those of the first and
third appellants whose personal
circumstances replicate those of the
second appellant. They had no compunction contriving with their
compatriot to conceal the true
facts and make false statements, in
perversion of the administration of justice which they were legally
bound to enforce and uphold.
Their conduct denigrated their duty to
protect the South African citizenry and inspire its confidence in the
police force especially
when their country is ravaged by intolerable
levels of crime. Integrity and honesty are the cornerstone qualities
of an effective
police officer without which law and order cannot be
maintained. There is no place for dishonesty in the police force and
such conduct
deserves the strictest censure. In the words of Olivier
JA,
18
‘
a police officer who places supposed
loyalty to colleagues committing crimes above his or her police
duties should know that the courts
of law will take an extremely
serious view of such conduct and will not hesitate to impose a severe
sentence’.
Weighing all
the circumstances of this case, it seems to me that sentences of
eight years imprisonment imposed on them are reasonable
and
justified.
19
[46] There is, finally, a statutory
question relating to the sentences to be dealt with. Section 276B of
the Act
20
provides:
‘
(1) (a) If a court sentences a
person convicted of an offence to imprisonment for a period of two
years or longer, the court may as
part of the sentence, fix a period
during which the person shall not be placed on parole.
(b) Such period shall be referred to as the
non-parole-period, and may not exceed two thirds of the term of
imprisonment or 25 years,
whichever is the shorter.
(2) If a person who is convicted of two or more offences
is sentenced to imprisonment and the court directs that the sentences
shall
run concurrently, the court shall, subject to subsection (1)
(b), fix the non-parole period in respect of the effective period of
imprisonment’.
[47] This court has previously balked
at fixing non-parole periods. In S
v
Botha
21
the court
described the exercise as
‘an undesirable judicial incursion into the domain of
another arm of the
State, which is bound to cause
tension between the judiciary and the executive… [as] courts
are not entitled to prescribe to
the executive branch of government
how long a person should be detained, thereby usurping the function
of the executive’.
In an
earlier precedent,
S
v Mhlakaza
22
Harms JA expressed similar
reservations pointing out that
‘
sentencing
jurisdiction is statutory and courts are bound to limit themselves to
performing their duties within the scope of that
jurisdiction’.
It is well to bear in mind both
judgments were decided before sec 276B came into effect, on 1 October
2004. It seems to me that the
Legislature enacted the provisions to
address precisely the concerns raised therein by clothing sentencing
courts with power to control
the minimum or actual period to be
served by a convicted person (although controversy may nevertheless
still remain in other respect
alluded in
Mhlakaza
such as possible tensions between
sentencing objectives and public resources).
[48] For all these reasons, the appeals of the first,
second and third appellants are dismissed. In accordance with the
provisions
of s 276B (2), it is ordered that the second appellant
shall serve a non-parole period of not less than ten years.
_________________
MML MAYA
JUDGE OF
APPEAL
CONCUR:
MTHIYANE
JA )
HURT JA )
1
In
drawing such inferences, t
he learned judge
correctly relied on the guidelines set out in
R
v Blom
1939 AD 188
at 202-203 where it
was held:
‘
(1)The inference sought to be drawn must
be consistent with all the proved facts. If it is not, the inference
cannot be drawn.
(2) The proved facts should be such that they exclude every
reasonable inference from them save the one sought to be drawn. If
they do not exclude other reasonable inferences, then there must be
a doubt whether the inference sought to be drawn is correct.’
2
Burchell
and Hunt
General Principles of Criminal Law
3 ed Vol 1 p 72;
S v Ntuli
1975 (1) SA 429
(A) at 436D-E.
3
S
v
D
e
Oliveira
1993 (2) SACR 59
(A) at
63i-64a.
4
In
the view I take regarding the first and third appellants’
convictions as accessories after the fact to murder flowing from
the
infliction of the chest wound, it is unnecessary to determine the
question of their criminal liability for the infliction of
the
contact wound, which if established, would be a basis for a
conviction as accessories after the fact to that offence as
envisaged
in the case of
R v Gani and
others
1957 (2) SA 212
(A), reaffirmed
in
S v Jonathan
1987
(1) SA 633
(A).
5
S
v Morgan and others
1993 (2) SACR 134
(A) at 174e-f.
6
[2005] ZACC 8
;
2005
(6) SA 419
(CC) at 430B.
7
1998
(2) SACR 191
(SCA) at 194c.
8
Section
322 is in the following terms:
‘
In the case of an appeal against a
conviction or of any question of law reserved, the court of appeal
may-(a) allow the appeal if
it thinks that the judgment of the trial
court should be set aside on the ground of a wrong decision of any
question of law or
that on any ground there was failure of justice;
or
(b) give such judgment as ought to have been given at the trial or
impose such punishment as ought to have been imposed at the
trial;
or
(c) make such other order as justice may require:
Provided that, notwithstanding that the court of appeal is of the
opinion that any point raised might be decided in favour of the
accused, no conviction or sentence shall be set aside or altered by
reason of any irregularity or defect in the record or proceedings,
unless it appears to the court of appeal that a failure of justice
has in fact resulted from such irregularity or defect.’
9
S
v E
1979 (3) SA 973
(A);
R
v Mkhwanazi and others
1948 (2) SA 686
(A) at 690. It is important to note that in
S
v E
, the appeal court gave the
appellant prior notice of the fact that it might consider altering
conviction, while in
Mkhwanazi
the
conviction was altered but the sentence remained unaffected. The
practice is that an appellant should not be placed in jeopardy
of
having his or her conviction converted to a more serious one, the
sentence increased unless there has been prior notice from
the
appeal court to show cause why this should not be done. There has
been no such notice in this case.
10
S
v Burger
1975 (2) SA 553
(C).
11
S
v Williams and others
1998 (2) SACR 191
(SCA)
at 194i.
12
That
the book was tampered with and the entries ‘rewritten’
by Ngxumza on his orders were inaccurate is clearly illustrated,
for
example, by the entry mentioned in para [15] above that the second
appellant booked out rifle 291 at 02h55 when according to
an earlier
entry they left the police station in response to Lang’s call
only twenty minutes earlier, at 02h40 – an
impossibility,
considering the evidence their destination was 2km away from the
station and that it took about 20 minutes just
walking from their
vehicle to the spot where they encountered the deceased.
13
S
v Mkohle
1990 (1) SACR 92
(A);
S v Hadebe
and others
1997 (2) SACR 641
(SCA) at
645e.
14
S
v Shackell
2001 (2) SACR 185
at para
30.
15
S
v Abrahams
2002 (1) SACR 116
(SCA) at
para 15;
S v Malgas
2001
(1) SACR 469
(SCA) at para 12.
16
2001
(1) SACR 469
(SCA) at para 25.
17
S
v Abrahams
2002 (1) SACR 116
(SCA) at
para 13;
S v Fatyi
2001
(1) SACR 485
(SCA) at paras 4 and 5.
18
S
v Phallo and others
1999 (2) SACR 558
(SCA) at para 42.
19
S
v Phallo
(supra)
at
para 41.
20
Inserted
by
sec 22
of the
Parole and Correctional Supervision Amendment Act
87 of 1997
.
21
2006
(2) SACR 110
(SCA) at para 25 (decided on 28 May
2004).
22
1997
(1) SACR 515
(SCA).