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[2006] ZASCA 149
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S v Gunqisa and Others (504/05) [2006] ZASCA 149 (31 May 2006)
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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Not Reportable
CASE NO 504/2005
In
the matter between
ZOLA KENNETH GUNQISA AND OTHERS Appellants
and
THE STATE Respondent
______________________________________________________________
Coram: Scott, Jafta JJA and Cachalia AJA
Heard: 3 May 2006
Delivered: 31May
2006
Summary
: Evidence – Reasonable possibility that the defence version is
true
– Accused entitled to acquittal.
Neutral
citation: This judgment may be referred to as
Zola Kenneth Gunqisa
and Others v The State
[2006] SCA 76 (RSA)
______________________________________________________________
JUDGMENT
______________________________________________________________
JAFTA JA
[1] The appellants were convicted of kidnapping and
murder in the High Court, Johannesburg. Each appellant was sentenced
to 5 years’
imprisonment for kidnapping. A sentence of 15
years’ imprisonment was imposed on the first, second and fourth
appellants for
murder. The third and fifth appellants were sentenced
to 10 years’ imprisonment. The court
a quo
(Mlambo J)
granted leave to the first, second and third appellants to appeal
against conviction and sentence. The other appellants’
leave
was limited to conviction only. Leave was also granted to the
respondent to appeal against the sentences imposed.
[2] The charges against the appellants arose from the
following facts. On 21 March 1999 Freddie Maebela and his girlfriend
visited
the house of Mrs Lindiwe Moloi at Ngcobo Street, Vosloorus.
They were travelling in a Toyota Conquest driven by Maebela. Shortly
thereafter the second and fourth appellants arrived at the house
looking for the driver of the Conquest. Having found Maebela in
a
bathroom they took him to the Conquest which was then parked some
three metres from the house. Before taking away a telephone from
the
house, the fourth appellant informed Mrs Moloi that they were
policemen and that they were taking Maebela to the local police
station.
[3] After their departure with Maebela, Mrs Moloi asked
his girlfriend to take some clothes for him to the police station.
Mrs Moloi
went to inform Maebela’s mother that he had been
arrested by the police. However, they were later informed that
Maebela was
not detained at the local police station. With the help
of other relatives they searched for him without success. Ten days
later
a badly decomposed body was discovered in the mieliefields at
Dunnottar, not very far from Vosloorus. Relatives identified it as
that of Maebela at a mortuary in Springs. A medical examination of
the body revealed that he had died as a result of a gunshot to
the
head. The skull was fractured. The medical evidence as to whether the
body could have been that of a person who died ten days
previously
was equivocal.
[4] Apart from disputing that the body belonged to
Maebela, the appellants denied any involvement in his killing. Their
version was
briefly this. Some three days before Maebela’s
arrest, Godfrey Gunqisa was robbed of his Conquest by four men who
were carrying
firearms. Gunqisa is the brother of the first and the
third appellants. On 21 March these appellants received information
that the
stolen vehicle had been sighted in Vosloorus. They went to
look for it. The first appellant was driving an Opel Astra borrowed
from
a friend and had two companions in the vehicle who are now
deceased. The third and fifth appellants travelled together in
another
vehicle. They picked up the second and fourth appellants at
Tsakane Police Station where the latter worked as policemen.
[5] Shortly after arriving in Vosloorus they saw the
vehicle they were looking for. They followed it to Mrs Moloi’s
house. The
second and fourth appellants entered the house while the
others remained in the vehicles. In the house they found Mrs Moloi
and Maebela’s
girlfriend to whom they introduced themselves as
policemen. They arrested Maebela in the bathroom and informed the
women that they
were taking him to the local police station. The
second appellant placed him in the boot of the Opel Astra before they
drove away
in a convoy of three vehicles. The Conquest driven by the
second appellant was leading. The fourth and fifth appellants were
with
him. The third appellant was driving the vehicle in the middle
and the first appellant’s Opel Astra was at the rear.
[6] On the way the first appellant noticed that the boot
of the Opel Astra was open after hearing a loud noise. He stopped on
the
side of the road. On examining the boot he observed that Maebela
had escaped. As the other vehicles were by then out of sight and
he
did not know the way to the police station, he drove back to his home
at Kwa-Thema in Springs.
[7] In the meantime the Conquest arrived at the police
station. On entering the premises, the fourth appellant was
accidentally shot
by a firearm while being handled by the fifth
appellant. The shooting occurred inside the vehicle. He was hastily
taken to hospital.
As the second appellant was driving out of the
police station, they saw the vehicle driven by the third appellant
approaching and
they beckoned to him to follow. As they were driving
at a high speed, they lost him and he also returned to Kwa-Thema.
From the hospital
the second and the fifth appellants went back to
the police station. The fifth appellant was charged and detained for
the shooting.
The second appellant made an entry in the occurrence
book recording the recovery of the vehicle and the arrest of Maebela.
[8] While accepting that the appellants had reason to
arrest Maebela, the trial court found that their conduct was
incompatible with
an intention to arrest. The court said:
‘
They contend that this was a lawful arrest.
However there are certain features of their conduct which militate
against this having
been a lawful arrest. Accused 2 and 4 who are
members of the South African Police Services, waited until they
knocked off to go to
Vosloorus despite having received information
about the Conquest being in Vosloorus whilst on duty. They did not
alert the police
offices at Kwa-Thema Police Station, where the
robbery charge involving the Conquest was laid. They went directly to
their rendezvous
in Vosloorus without reporting to the Vosloorus
Police Station, despite the probability of an arrest by them or even
backup assistance.
They went to Vosloorus without any handcuffs or
leg irons. Even assuming that they showed their identification or
appointment cards
to Rebecca Moloi, their reason for not travelling
with Maebela in their vehicle, the Conquest, is indicative of an
intent contrary
to effecting an arrest.;
I do not find anything in the conduct of the appellants
which is inconsistent with an intention to arrest Maebela. They must
have
decided to arrest him only after they had seen him driving the
stolen vehicle. There can be no doubt that his arrest was justified.
On this issue their version was also supported by Mrs Moloi who
testified that she reported Maebela’s arrest to his mother.
In
the absence of proof that Maebela was murdered by the appellant there
can therefore be no justification for a conviction on the
charge of
kidnapping.
[9] Turning to the charge of murder, two issues were
raised both in this court and in the court below. The first was the
adequacy
of the evidence identifying the decomposed body as Maebela’s
body. The second was whether the version that he escaped was false.
As had been the position in the court below, counsel devoted much
time in argument to the question whether the body was properly
identified. I will consider the second issue first.
[10] The trial court did not accept that Maebela had
escaped. The court rejected this version on the basis that it was
inherently
improbable, and said:
‘
For accused 1 to simply return to Kwa-Thema, his
home, without an attempt to locate the Vosloorus Police Station in
order to make
a timeous report of Maebela’s escape that
evening, is simply not consistent with innocence. Moreover he had
family whose house
was one kilometre away from the police station.
Clearly accused’s version that Maebela escaped from the Astra’s
boot
is a lie. He wants this court to believe that after Maebela
escaped from the boot he simply ceased to exist. This happened in
broad
daylight and accused 1, himself, saw no one running in the
vicinity of where he says he saw the Astra’s boot suddenly
open.’
[11] In
S v Shackwell
2001 (2) SACR 185
(SCA) this court cautioned against the rejection of
an accused’s version solely on the ground that it was
improbable. There
Brand AJA said (at 194g-i):
‘
It is a trite principle that in criminal
proceedings the prosecution must prove its case beyond reasonable
doubt and that a mere preponderance
of probabilities is not enough.
Equally trite is the observation that, in view of this standard of
proof in a criminal case, a court
does not have to be convinced that
every detail of an accused’s version is true. If the accused’s
version is reasonably
possibly true in substance the court must
decide the matter on the acceptance of that version. Of course it is
permissible to test
the accused’s version against the inherent
probabilities. But it cannot be rejected merely because it is
improbable; 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.’
[12] I am not persuaded that there are improbabilities
in the first appellant’s version or that his failure to locate
the police
station is inconsistent with the conduct of an innocent
man. Their objective in going to Vosloorus was to recover the stolen
vehicle.
Maebela’s escape was of less concern to him. It was
for the police to trace him and other suspects in the robbery. In
addition,
Dr Boleu, the owner of the Opel Astra, supported the
first appellant’s version as to the faulty boot. He said at the
time
of this incident the latch of the boot was faulty and this
caused it on occasions to open on its own when the vehicle was driven
on an uneven surface. The first appellant had said that he saw it
open immediately after he had driven over a speed hump. If we accept,
as we must, that Maebela was conveyed in that vehicle, it is
reasonably possible that he escaped. He was facing a long term of
imprisonment
in the event of being convicted. The fact that the first
appellant did not see him in the vicinity when he went to close the
boot
does not detract from this possibility being reasonable. It is
obvious that Maebela would hide from the appellants to avoid being
captured.
[13] There was no evidence adduced by the State as to
where the appellants drove after leaving Mrs Moloi’s house. In
this regard
their version remains uncontroverted. Moreover, the
making of the entry in the occurrence book by the second appellant is
irreconcilable
with the conduct of a guilty person. In that entry he
furnished both his name as well as that of the fourth appellant. He
also gave
his police number and the police station where both he and
the fourth appellant were employed. He reported that the suspect had
been
arrested and that ‘the suspect is in the other car’.
Finally, he recorded that they had removed the telephone from the
suspect’s house and that it could be collected at the Vosloorus
police station. The reason for this, he indicated, was to prevent
the
other participants in the robbery from being informed of the arrest.
This entry is totally inconsistent with the conduct of someone
who
had just murdered Maebela. Either he would have made no entry at all
in the occurrence book or, if he was brazen enough to do
so, he would
have concocted a story of an escape. The significance of the entry
was overlooked by the trial court.
[14] The court also found that the second and fourth
appellants handed Maebela to the first appellant for the latter to
murder him
as an act of vengeance for the robbery on his brother.
This finding is not supported by the evidence. It follows that the
trial court
erred in rejecting the defence version as false. In view
of this finding it is not necessary to consider the other issue.
[15] The appeal must succeed. The convictions and the
sentences are set aside.
_____________________
C N JAFTA
JUDGE OF APPEAL
CONCUR: ) SCOTT JA
) CACHALIA AJA