About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2009
>>
[2009] ZAGPPHC 328
|
|
Nel v S (SH12/97, A474/2007) [2009] ZAGPPHC 328 (26 August 2009)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
THE HIGH COURT OF
SOUTH AFRICA
(NORTH
AND SOUTH GAUTENG HIGH COURT, PRETORIA)
Date:
2009-08-26
Appeal
number: A474/2007
Case
number: SH12/97
PIETER
WILLEM ADRIAAN NEL
Appellant
and
THE
STATE
Respondent
JUDGMENT
SOUTHWOOD
J
[1]
At about 01h00, 02h00 and 03h00 on Sunday 5 January 1997 pipe bombs
were detonated at a mosque in Rustenburg, Onthebend shopping
centre
and Marikana post office respectively, causing extensive damage to
the buildings and serious injury to M. I. who was sleeping
in the
mosque. S. M. who was sleeping on the premises of a bottle store, ‘On
The Bend’, in the Onthebend shopping centre
was not injured by
the bomb blast. About 10 minutes after the last bomb exploded Pierre
Jacobs (first accused in the court a quo)
and Christiaan Harmse
(second accused in the court a quo) were apprehended by members of
the South African Police (‘SAP’)
as they drove into
Mooinooi from the direction of Marikana. After searching Harmse’s
motor vehicle and the house where Harmse
lived with his parents, the
police arrested Jacobs and Harmse for sabotage, attempted murder and
other offences
[2] On 21 August 1997
members of the SAP arrested Pieter Willem Adriaan Nel, the appellant,
at his home on a farm in the Brits district,
on a charge that he had
conspired with Jacobs and Harmse to set off the bombs at Rustenburg,
Onthebend and Marikana. In the appellant’s
outbuildings the
police found a piece of pipe and a rod which were later found to be
similar to the parts of the pipe bombs which
exploded at the
Rustenburg mosque, Onthebend shopping centre and Marikana post
office.
[3] The Attorney-General
prosecuted the three men on a number of charges, the most serious
being a contravention of section 54(3)(a)
of Act 74 of 1982
(Sabotage). The appellant was the third accused. They were tried in
the Rustenburg regional court from May 1998
to September 2000. On 11
September 2000 the regional court convicted the three men as follows:
Count 1
(Contravention of section 54(3)(a) of Act 74 of 1982) - Accused no 1,
accused no 2 and the appellant as
an accomplice.
Count 2
(Attempted murder of Monimi Ibriahim) - Accused no 1, accused no 2
and the appellant as an accomplice.
Count 3
(Attempted murder of Samual Malifane) - Accused no 1 and accused no
2.
Count 5
(Contravention of section 28(1) of Act 26 of 1956) - Accused no 2.
Count 6
(Contravention of section 2 of Act 75 of 1969 - unlawful possession
of a .303 rifle) - Accused no 2.
Count 7
(Contravention of section 36 of Act 75 of 1969 - unlawful possession
of 10 .303 rifle rounds) - Accused no
2.
The regional court
sentenced the appellant and his two co-accused as follows:
Count 1
Accused no 1 - 10 years’ imprisonment.
Accused no 2 and
the appellant - each 13 years imprisonment.
Count 2
Accused no 1, accused no 2 and the appellant - each 6 years
imprisonment.
Count 3
Accused no 1 and accused no 2 - each 6 years imprisonment.
Count 5
Accused no 2 - 3 years imprisonment.
Count 6 and 7 Accused no
2 - 3 years imprisonment.
The court ordered that
the sentences on counts 3, 5, 6 and 7 be served concurrently with the
other sentences thereby effectively
sentencing accused no 1 to 16
years imprisonment and accused no 2 and the appellant to 19 years
imprisonment.
[4] The court a quo
refused to grant leave to appeal to the first and second accused and
they have not sought leave to appeal from
this court. With the leave
of the court a quo, granted on 30 March 2006, the appellant appeals
against the convictions and sentences.
On 28 June 2006 the court a
quo granted bail pending the outcome of the appeal. The essence of
the appellant’s appeal against
the convictions is that the
relevant witness, B. M., was not a reliable witness and that the
appellant’s denial of any involvement
in the bombings was
reasonably possibly true. The essence of the appellant’s appeal
against his sentences is that the sentences
are excessive.
[5] Absent an appeal by
Jacobs and Harmse it must be accepted that they were properly
convicted and sentenced. The evidence against
them was overwhelming
and provides the background against which the evidence against the
appellant must be considered. Harmse’s
motor vehicle (a white
Opel Monza without number plates) was seen in the vicinity of the
Rustenburg mosque shortly before the first
bomb went off; Samuel
Malifane saw a white Opel Monza outside the Onthebend shopping centre
just before the bomb went off there
and he saw two white men outside
‘On The Bend’ bottle store one of whom he identified as
accused no 1; the two accused
were apprehended while travelling away
from Marikana in the white Opel Monza without number plates minutes
after the Marikana post
office bomb exploded; the police found the
vehicle’s number plates and pieces of detonator in Harmse’s
motor vehicle
as well as a magazine for a .303 rifle; the police
found parts for a number of pipe bombs and as well as Amfex explosive
in the
outbuildings of Harmse’s house, and a .303 rifle without
a serial number in one of the bedrooms; Brian Meintjies testified
that the appellant told him to make pipe bombs and that Harmse would
provide the explosives for the bombs; that Harmse had done
so and
that early during the afternoon of 4 January 1997 at Harmse’s
request, he, Meintjies, went to Harmse’s house
and helped
Harmse put Amfex into a pipe bomb; that when he arrived at Harmse’s
house Harmse told him that the appellant had
instructed them to
assemble the bombs and set them off that night; that shortly
afterwards he, Meintjies, had informed his police
handler about this
conversation. It is not in dispute that this information caused the
police to mobilise and search the Mooinooi
and Brits area for Harmse
and that the police eventually apprehended Harmse and Jacobs as they
drove into Moonooi. It is common
cause that the appellant did not
make the bombs or set them off and that he was not present when they
were detonated. The case
against the appellant was that he had given
the instruction to make the bombs and that he had given the order for
them to be set
off.
[6] The relevant part of
section 54(3) of Act 74 of 1982 (which was repealed on 20 May 2005 by
the Protection of Constitutional
Democracy against Terrorist and
Related Activities Act 33 of 2004) read as follows:
‘
Any person who
with intent to -
(a) endanger the safety,
health or interests of the public at any place in the Republic;
(c) interrupt, impede or
endanger at any place in the Republic ... postal or telecommunication
services ... or any other public
service;
(d) endanger, damage,
destroy, render useless or unserviceable or put out of action at any
place in the Republic any installation
for the rendering or supply of
any service referred to in paragraph (c) .
in the Republic or
elsewhere -
(i) commits any act;
(ii) attempts to commit
such act;
(iii) conspires with any
other person to commit such act or to bring about the commission
thereof or to aid in the commission or
the bringing about of the
commission thereof; or
(iv) incites, instigates,
commands, aids, advises, envisages or procures any other person to
commit such act,
shall be guilty of the
offence of sabotage and liable on conviction to imprisonment for a
period not exceeding 20 (twenty) years.’
[7] From the outset the
state did not allege that the appellant made and/or set off the
bombs. The preamble to the charge sheet
alleges (I translate):
‘
1. Whereas at all
relevant times an organisation and/or group of persons, known as the
Afrikaner Weerstandsbeweging, existed in
the Republic of South
Africa;
2. And whereas, accused
no 2 and 3 were at all relevant times members of the Afrikaner
Weerstandsbeweging;
3. And whereas, accused
no 2 and 3 in or during September 1996 to January 1997 had the aim of
attacking and damaging post offices,
taxi ranks, mosques and
government buildings;
4. And whereas, some of
the leaders of the Afrikaner Weerstandsbeweging, including accused no
3, during September 1996 identified
targets where explosives could be
set off and gave instructions to members and/or supporters to collect
information relating to
the targets and to report on the information
collected;
5. And whereas accused no
3, during September 1996 gave instructions that explosive devices,
components thereof and other devices
must be manufactured to achieve
these aims and accused no 2 and others thereafter proceeded to
manufacture the devices to give
effect to the aforementioned order;
6. And whereas accused no
3 thereafter gave an order that members, inter alia accused no 2,
must choose their own times to attack
the targets already identified
and that they must proceed with these actions without further orders
from the leaders;
7. And whereas accused no
1 on the dates referred in counts 1-4 accompanied accused no 2 and/or
participated and/or associated himself
with the attacks as described
in counts 1-4;
8. Wherefor the accused
are guilty of the following crimes.
[8] With regard to the
appellant it was common cause at the trial that -
1. The Afrikaner
Weerstandsbeweging (AWB) came into existence in the 1980s because of
fears about the safety of white people under
an ANC government;
2. The AWB held meetings
and actively recruited members before the 1994 election;
3. In March 1994 the
appellant accompanied an armed AWB group which went into
Bophuthatswana to assist Prime Minister Mangope;
4. At AWB meetings senior
members, including the appellant, requested members to collect
information about the situation of government
buildings such as
police stations, military installations, hospitals and post offices
as well as telephone and telephone communication
installations and
ambulance services and police and military morale;
5. Accused no 1 was not a
member of the AWB at any time or a known supporter of the
organisation;
6. In about 1993 accused
no 2 became a member of the AWB but was never active: he attended
very few meetings and did not seek promotion
and by the relevant
period (September 1996 to January 1997) according to accused no 2 he
no longer regarded himself as a member
of the organisation;
7. The appellant joined
the AWB in 1991 and was always active , even after the 1994 election
when interest in the organisation dwindled.
Immediately prior to the
election he held the rank of senior kommandant and by September 1996
he was a brigadier, a rank which
he held at the time of the trial
(May 1998 to September 2000). He continued to attend and address
meetings in 1995 and 1996;
8. Brian Meintjies, the
main state witness, joined the AWB in 1991 because he agreed with its
ideology. At first he was quite active
but he became disillusioned
with the organisation when it sent armed men into Bophuthatswana and
when it detonated bombs which
injured innocent people. In about
September 1995 he was recruited by the SAP Security Branch to monitor
the activities of the AWB
in the Mooinooi and Brits areas. He then
became more active and attended meetings and rose from the rank of
corporal to veldkornet.
He attended a number of meetings with the
appellant and heard him speak on a number of occasions. He was paid
according to the
quality of the information he provided to the
police. The amounts varied and there was no fixed rate or amount of
compensation.
In October 1996 the police, acting on information
provided by Meintjies arrested the AWB kommandant in Mooinooi, Fred
Joubert,
for being in possession of explosives. Joubert was convicted
and sentenced and the police paid Meintjies R15 000 for the
information.
After Jacobs and Harmse were arrested Meintjies and his
wife and son made statements to the police. Meintjies prepared his
statement
early in February 1997 with the assistance of his police
handlers and the reports he had provided. This lengthy statement
details
his involvement with the appellant and Harmse and was
available to the accuseds’ three legal representatives who
comprehensively
cross-examined him over a period of 3 or 4 days. None
of them proved the statement in evidence for the purpose of
cross-examination.
In about March 1997 the police put Meintjies and
his family into a witness protection program and from that time
compensated Meintjies
for the salary which he no longer received from
his former employer, Western Platinum Mine. In about December the SAP
paid Meintjies
R300 000 for information he had given them. At the
time of the trial Meintjies was still unemployed and in the SAP
witness protection
program receiving the compensation referred to;
9. During the afternoon
of 4 January 1997 Meintjies furnished his police handler with
information relating to Harmse and the planting
of bombs. The police
then commenced a search for Harmse in the Mooinooi and Brits area.
They first attempted to find him at his
home and then kept the house
under observation. They deployed a number of members in the search.
After patrolling the area extensively
they eventually decided to wait
for him near his home on a bridge at the entrance to Mooinooi. At
about 03h00 on 5 January 1997
the police stopped Harmse’s motor
vehicle and apprehended him and Jacobs. After searching his car the
police went and searched
his home.
10. In Harmse’s
motor vehicle the police found pieces of detonator, the motor
vehicle’s number plates vehicle and a
magazine for a .303
rifle;
11. At Harmse’s
home the police found a large number of parts for pipe bombs, Amfex
explosive, a .303 rifle with its serial
number erased and 10 .303
live rounds.
[9] As already mentioned
the state’s case against the appellant was that he ordered that
the bombs be manufactured, instructed
Meintjies (and others) to
select targets from the mosques and public buildings in the Mooinooi,
Brits and Rustenburg areas and
then ordered that bombs be set off at
targets which had been identified. There is no evidence that the
appellant directly ordered
Meintjies to set off the bombs on 4
January 1997 or at any other time or that Meintjies overheard the
appellant giving such an
order.
[10]
At the trial Harmse and the appellant denied any involvement in the
making and planting of the bombs. They denied that Meintjies’
evidence regarding their involvement was true. If they are correct
then Meintjies obviously fabricated a considerable amount of
evidence
implicating them in making and detonating the bombs. Meintjies gave a
detailed account of his dealings with Harmse right
up to the
afternoon of 4 January 1997 when he went to Harmse’s house,
returned to Harmse his .303 rifle and assisted Harmse
to make a pipe
bomb. He also testified that Harmse told him that the appellant had
instructed that the bombs be assembled and set
off that very day. As
a result of this meeting Meintjies telephoned his police handler and
it is not in dispute that the police
commenced searching for Harmse
in the Mooinooi and Brits area and continued to do so until they
arrested him and Jacobs in the
early hours of 5 January 1997.
Meintjies’ wife and son, who did not know that he was a police
informant, confirmed that about
a week prior to 4 January 1997 Harmse
came to their home and loaded up a number of lengths of pipe which
Meintjies had cut and
brought home from the mine. There are other
objective facts which support Meintjies’ evidence. Meintjies
testified that Harmse
brought Amfex to his home and that he took the
explosive to Fred Joubert’s farm to be hidden. It is not
disputed that Meintjies
informed the police about this explosive and
that as a result of this information in October 1996 Fred Joubert was
arrested, charged
and convicted of unlawfully being in possession of
explosives. On 4 January 1997 Jacobs and Harmse travelled to
Rustenburg, Onthebend
and Marikana where they set off bombs early in
the morning of 5 January 1997. The bombs were pipe bombs of the type
which Meintjies
said the appellant had instructed him to make. Harmse
made at least two bombs on 4 January 1997 and set off a number of
bombs (at
least four) during that night as he was instructed (he said
by the appellant) to do. The police found pieces of detonator in
Harmse’s
motor vehicle and a number of parts for bombs as well
as Amfex at Harmse’s house. They also found a .303 rifle
magazine in
Harmse’s motor vehicle and the .303 rifle itself
with a magazine and 10 live .303 rifle rounds at Harmse’s
house. When
the police found the .303 rifle Harmse did not react with
astonishment or state that he knew nothing about the rifle or ask his
parents where it came from.
[11] On appeal the
appellant’s counsel contends that Meintjies’ evidence
should be approached with caution because he
is a single witness and
a paid informant; that there is no corroboration for Meintjies’
evidence regarding the appellant;
that Meintjies contradicted himself
(these contradictions were dealt with by the magistrate in his
judgment); that the state never
put to Harmse, Meintjies’
version that when Meintjies arrived at Harmse’s house on 4
January 1997 Harmse said the appellant
had said the time is right,
the bombs must be assembled and set off that night; that in the light
of the police inaction Meintjies
could not be telling the truth; and
accordingly, that the court a quo erred in accepting Meintjies’
evidence as credible.
The appellant’s counsel also argues that
an adverse inference should be drawn against the state because of the
failure to
call Fred Joubert (who according to Meintjies was present
when certain things were said by the appellant); that the court a
quo’s
failure to call Joubert is an irregularity; that the
delay in arresting the appellant undermines Meintjies’
credibility and,
in any event, that the appellant’s version is
reasonably possibly true.
[12] The appellant seeks
to reverse the finding of the court a quo that he conspired with
accused no 2 (and others) to set off the
bombs. The court a quo
arrived at this conclusion after carefully considering all the
evidence, particularly that of Meintjies,
which it properly
considered in the context of all the evidence. See S v Van Aswegen
2001 (2) SACR 97
(SCA) para 8. The court a quo took into account that
Meintjies was a single witness and a paid informer for the SAP and
was aware
that it must approach his evidence with caution as he was
an accomplice. It took into account his inability to remember all the
relevant dates and the contradictions in his evidence (it identified
four) and nevertheless concluded that his evidence bore the
stamp of
truth. The court a quo also recorded that it was impressed by
Meintjies’ demeanour. These findings are of importance
as
Meintjies testified for seven days and was subjected to extensive
cross-examination by three experienced legal practitioners.
The court
a quo found that Meintjies did not deviate from his evidence in
chief.
[13] A court of appeal
does not lightly interfere with a factual finding of a trial court
but where it is satisfied that the finding
is wrong it will rectify
it - see S v Mafaladiso en Andere
2003 (1) SACR 583
(SCA) at 595b- d.
The correct approach to an appeal on fact was described in R v
Dhlumayo
1948 (2) SA 677
(A) at 695-706 - see President of the
Republic of South Africa v South African Rugby Football Union
2000
(1) SA 1
(CC) paras 78-81. This approach includes giving due weight
to the advantages which the trial court has ‘in seeing and
hearing
the witnesses and being steeped in the atmosphere of the
trial’ as well as ‘the opportunity of observing their
demeanour,
but also their appearance and whole personality’ and
accepting that where there has been no misdirection on fact by the
trial
court, the presumption is that its conclusion is correct.
Nevertheless the following must be borne in mind -
‘
10. There may be a
misdirection on fact by the trial Judge where the reasons are either
on their face unsatisfactory or where the
record shows them to be
such; there may be such a misdirection also where, though the reasons
as far as they go are satisfactory,
he is shown to have overlooked
other facts or probabilities.
11. The appellate court
is then at large to disregard his findings on fact, even though based
on credibility, in whole or in part
according to the nature of the
misdirection and the circumstances of the particular case, and so
come to its own conclusion on
the matter.’ See Rex v Dhlumayo
and Another supra at 706.
[14] The appellant’s
counsel’s arguments have already been referred to.
Significantly the appellant’s counsel
did not analyse
Meintjies’ evidence to show that there were so many
contradictions and improbabilities that he could not
be believed. The
appellant’s counsel also did not attempt to show that there was
a misdirection because the reasons are unsatisfactory
or are shown by
the record to be such. It is important to bear in mind that Meintjies
testified at great length for some seven
days. When he testified in
chief he referred to a number of occurrences and related them to
specific dates. It is striking that
when he was cross-examined
Meintjies had difficulty in relating some of the events to the dates
he testified about in chief. However
it is equally striking that he
did not contradict himself about the crucial events or about the
appellant’s involvement.
He testified about attending meetings
where the appellant spoke: the instructions which the appellant gave
to members of the AWB
to gather information about government
buildings such as police stations, military installations, post
offices and hospitals as
well as telecommunication installations: the
discussions he had with the appellant about a war coming; the
discussions he had with
the appellant about a Coup d’etat; the
discussions he had with the appellant about making pipe bombs for
attacking targets
such as ANC offices, mosques and government
buildings and the selection of such targets. He dealt specifically
with the appellant’s
instructions to him to make pipe bombs, to
set them off when the time was right and his visits to the
appellant’s house when
they discussed the progress made in
making the bombs and when the appellant furnished him with explosives
and detonators. Meintjies
related these occurrences to the period
between September 1996 and January 1997 and described the role of
accused no 2 in providing
the explosives and eventually assembling
the bombs on 4 January 1997 both on the orders of the appellant. It
is of importance that
none of the accused’s legal
representatives proved Meintjies’ statement in evidence so that
he could be cross-examined
on it and completely discredited. The
obvious inference to be drawn is that none of them thought that he
was deviating sufficiently
from his statement to justify proving it
in evidence. The longer Meintjies testified the more it became
apparent that he could
not be discredited and the further the trial
progressed the clearer it became that much of his evidence was not or
could not be
disputed by the appellant and his co-accused and that it
was supported by the objective circumstantial evidence. The appellant
did not dispute that Meintjies accompanied him to a number of AWB
meetings; that he had instructed AWB members to collect information
about government buildings such as police stations, military
installations, post offices and hospitals as well as
telecommunications
installations (he claimed that this was done for
defensive purposes); that he instructed Meintjies to make pipe bombs
(he claimed
that this was done to test Meintjies, but nothing came of
it); that he and Meintjies had discussed using bombs to distribute
AWB
pamphlets and other literature at meetings (he claimed that this
was just idle talk - ‘wild west stories’); and that
he
instructed members of the AWB to make dog spikes (he claimed that he
did not ask Meintjies to do this). Meintjies’ evidence
on the
crucial issues is supported by the circumstantial evidence. In
accordance with Meintjies’ evidence that the appellant
told him
that Harmse would bring explosives to him Harmse did in fact bring
explosives which Meintjies took to Fred Joubert. On
4 January 1997
Harmse asked Meintjies to go to his house and when he arrived there
he found Harmse making pipe bombs and Harmse
told him that the
appellant had given the order that the bombs be assembled and set off
that night. This evidence is borne out by the fact that the police
handler received information from Meintjies shortly afterwards which
caused the police to start looking for Harmse; that Harmse
planted
the bombs that very night and that the statement by Harmse was not
pertinently challenged by any of the legal representatives
and not
denied by Harmse when he gave evidence. This evidence is admissible
against the appellant - see Rex v Cilliers
1937 AD 278
at 285; Rex v
Miller
1939 AD 106
at 115-119; S v Cooper
1976 (2) SA 875
(T) at
878H-879H and 880A-G; Hiemstra’s Criminal Procedure 22-30.
There is no indication in the judgment (and none was pointed
out in
argument) that the court a quo did not approach Meintjies’
evidence with caution before finding that he was a credible
and
reliable witness. The court a quo also pertinently found that
Meintjies did not fabricate the evidence against the appellant
and
this finding is not challenged on appeal.
[15] I also do not agree
that there was no corroboration for Meintjies’ evidence
regarding the appellant. The appellant himself
provided
corroboration. He admitted that he asked Meintjies to make pipe bombs
and his explanation for doing so - that it was to
test Meintjies - is
so fanciful that it cannot be believed. The appellant was a senior
officer in the AWB and, according to him,
when he asked Meintjies to
make the bombs he knew that Meintjies was an SAP informer and that
the SAP was keeping a close watch
on senior AWB officers. He also
admitted that he and Meintjies spoke about using small explosive
devices, so-called pamphlet bombs,
to distribute AWB literature at
its marches and other gatherings. His explanation that this was done
in jest and was just part
of ‘wild west stories’, defies
belief. In addition there is the undisputed evidence that the
appellant instructed Harmse,
a supposedly uninterested member of the
AWB who did not even consider himself to be a member any longer, to
attend Fred Joubert’s
trial to show solidarity with Joubert and
that on the afternoon of 4 January 1997 Harmse told Meintjies that
the appellant had
given the order to complete and set off the bombs.
In the context of all the evidence the appellant’s order is the
only plausible
explanation for Harmse suddenly assembling the bombs
and setting them off at targets which had been previously discussed
at meetings.
Harmse did not deny that he said what Meintjies said he,
Harmse, had said and the state cannot be criticised for not putting
this
to him. If it was an oversight on the part of Harmse’s
counsel to lead him on the issue the appellant’s counsel could
(and should) have questioned Harmse about the conversation.
[16] It is not in dispute
that a short time after his conversation with Harmse on 4 January
1997 Meintjies told his police handler
what had been said and what
was going to happen and that the police reacted. The fact that the
police did not react within minutes
can only be attributed to their
lack of resources and/or lack of personnel. It cannot and does not
reflect adversely on Meintjies’
credibility.
[17] The court a quo
rejected the appellant’s argument that an adverse inference
should be drawn against the state because
of its failure to call Fred
Joubert. The court based its refusal on the fact that it had not been
shown that Joubert was not available
to testify although it appeared
from the prosecutor’s statement to the court that he was
physically available. When the prosecutor
closed the state’s
case he informed the court that Joubert was hostile (antagonistic)
towards the state and would not give
evidence. The prosecutor then
made Joubert available to the defence as a witness. This was not a
case where the witness could be
expected to testify against the
accused. Joubert was, or had been, a senior officer in the AWB and
knew the appellant well. He
had already been convicted and sentenced
for the unlawful possession of explosives. He therefore had nothing
to lose by testifying
on behalf of the appellant. If he was loyal to
anyone it would be to the appellant and not the state. In these
circumstances the
reasoning in S v Texeira
1980 (3) SA 755
(A) at
763D-764B does not apply. If an adverse inference should be drawn
against any party it should be drawn against the appellant.
The
defence was obviously in possession of all the police statements. If
Joubert could have testified that the appellant had not
planned or
ordered the making of the bombs and was not involved in their
manufacture and use - contrary to what Meintjies had testified
- the
appellant should have called him to give such evidence. See S v Phiri
1958 (3) SA 161
(A) at 164H-165A. It is not necessary to consider
this issue further as the court a quo did not draw such an inference
and the
respondent does not contend that this court should.
[18] As far as the
court’s failure to call Joubert as a witness is concerned the
regional court obviously did not wish to
call Joubert as a witness
and there is no indication that the court considered that Joubert’s
evidence was essential to the
just decision of the case - see S v B
1980 (2) SA 946
(A) at 953A-C and D-F. If the appellant’s
counsel did not wish to call Joubert as a witness but wanted to
cross-examine him
the appellant’s counsel could have requested
the court to call Joubert in terms of section 186. The appellant’s
counsel
did not do so. In my view this did not happen because the
appellant’s counsel did not think it essential to the just
decision
of the case. It is not argued that no court could have
failed to call Joubert - see S v B supra. In my view the appellant’s
reliance on section 186 and R v Hepworth
1928 AD 268
at 269 is
misplaced.
[19] It has already been
mentioned that in a criminal trial all the evidence must be taken
into account to decide whether or not
the accused is guilty. If the
accused’s version is reasonably possibly true in substance the
court must decide the matter
on the acceptance of that version. The
accused’s version can be tested against the inherent
probabilities but it cannot be
rejected simply because it is
improbable. It can be rejected on the basis of the inherent
probabilities only if it can be said
to be so improbable that it
cannot reasonably possibly be true - see S v Shackell
2001 (2) SACR
185
(SCA) para 30. On all the evidence there is no explanation for
Harmse suddenly assembling the bombs and setting them off other than
the instruction of the appellant that he must do so. Harmse did not
dispute that he told Meintjies this on 4 January 1997 and it
is not
disputed that this evidence is admissible against the appellant.
Harmse was supposedly an inactive member of the AWB who
had no
interest in pursuing its aims. Despite this inactive status he
remained a friend of the appellant who was a senior and active
member
of the organisation. At the request of the appellant Harmse went to
court to show solidarity with Fred Joubert when Joubert
was charged
with unlawful possession of explosives. After the appellant told
Meintjies that Harmse would bring him the explosives
for the pipe
bombs Harmse did bring the explosives which Meintjies took to
Joubert’s farm to hide. Harmse completed at least
one pipe bomb
on 4 January 1997 and Meintjies helped Harmse put Amfex into a second
pipe bomb. The inherent probabilities point
overwhelmingly to the
fact that Harmse’s statement to Meintjies was correct: i.e.
that the appellant instigated the manufacture
and setting off of the
bombs and gave the instruction that they be completed and set off at
the agreed targets. The court a quo
correctly found that the
appellant was guilty of contravening section 54(3)(a) of Act 74 of
1982 and attempted murder.
[20] As far as sentence
is concerned this court may interfere with sentence only if the trial
court did not exercise its discretion
judiciously and properly: i.e.
if it is vitiated by irregularity or misdirection or if the sentence
is disturbingly inappropriate
- see S v Pillay
1977 (4) SA 531
(A) at
535E-G; S v Rabie
1975 (1) SA 855
(A) at 857D-F; S v Salzwedel and
Others
1999 (2) SACR 586
(SCA) para 10. The appellant’s counsel
does not contend that the sentence was vitiated by irregularity or
misdirection. He
argues that the sentence imposed was excessive. He
submits that the court a quo did not properly take into account the
appellant’s
personal circumstances, that it overemphasised the
seriousness of the crimes and that a shorter term of imprisonment or
a partially
suspended period of imprisonment would have been more
appropriate. He also submits that the appellant is young enough to be
rehabilitated
and that there is no need for the appellant to serve
such a sentence. He did not demonstrate how the court a quo failed to
take
the appellant’s personal circumstances properly into
consideration or how the court overemphasised the seriousness of the
crimes and he did not refer to other cases where, on similar facts,
the court imposed much lighter sentences. He submitted that
the
appellant is young enough to be rehabilitated and that there is no
need for the appellant to serve such a sentence.
[21] I am not persuaded
that there is merit in any of these arguments. The Legislature
clearly regarded the crime of sabotage as
very serious and provided
for a maximum sentence of 20 years imprisonment. The regional court
imposed a sentence of 13 years imprisonment
where the appellant was
the instigator of multiple bomb blasts which caused extensive damage
to property and almost resulted in
the death of at least on person.
The appellant and his co-accused were obviously unconcerned about the
possibility of a loss of
life. The court a quo properly considered
the seriousness of the offences and the appellant’s personal
circumstances and
imposed appropriate sentences. In my view the
effective sentence of 19 years imprisonment is not startlingly
inappropriate.
Order
[22]
The appeal is dismissed.
B.R. SOUTHWOOD
JUDGE OF THE HIGH
COURT
I
agree
W. M. MSIMEKI
JUDGE OF THE HIGH
COURT
CASE NO: A474/2007
HEARD
ON: 31 July 2009
FOR
THE APPELLANT: ADV. B.L. BANTJES
INSTRUCTED
BY: Mr. K. du Toit of Du Toit Prokureurs
FOR
THE RESPONDENT: ADV. H.C. BEZUIDENHOUT
INSTRUCTED
BY: Director of Public Prosecutions
DATE
OF JUDGMENT: 26 August 2009