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[1991] ZASCA 64
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S v Chonco (403/90) [1991] ZASCA 64 (24 May 1991)
Case No 403/90 /wlb
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between
MQABUKWENI CHONCO
Appellant
and
THE STATE
Respondent
CORAM: NESTADT, MILNE et F H GROSSKOPF JJA
DATE OF HEARING: 16 May 1991
DATE OF JUDGMENT: 24 May 1991
JUDGMENT
MÏLNE JA/
-1-
MILNE JA:
The appellant was convicted of the following offences: on count one of the
murder on or about 14 April 1988 in Boksburg of one Daniel
Joseph Motlaung (the
deceased); on count two of robbery with aggravating circumstances it being
alleged that at the time and place
referred to in count one he robbed Motlaung
of a white Nissan E-20 minibus registration No MNY 632 T ("the Nissan") the
property
of First National Bank, which was in the lawful possession of Motlaung;
on count three of robbery with aggravating circumstances
it being alleged that
on 22 April 1988 and near Katlehong in the district of Alberton he robbed Petrus
Thabane of a white Toyota
Hi-Ace minibus ("the Toyota"); on count four of
attempted murder it being alleged that at the time and place referred to in
count
three he fired a shot at Petrus Thabane with intent to kill him; and
-2-
on counts five and six respectively the unlawful possession of a 7,65 mm
fire-arm and 7,65 mm ammunition in contravention of section
2 and section 36 of
Act 75 of 1969.
He was sentenced as follows: On count one the death sentence was imposed. On
count two he was sentenced to 12 years' imprisonment
and on counts three, four,
five and six to 13 years' imprisonment, 10 years' imprisonment, 2 years'
imprisonment and 1 year's imprisonment
respectively. The sentences on counts
four, five and six were ordered to run concurrently with the sentence on count
three.
The appellant applied for leave to appeal against all his convictions and
sentences but this application was refused by the trial
judge. On petition to
the Chief Justice the appellant was granted leave to appeal "against the
convictions (and accordingly, the
sentences in respect
-3-
thereof) on counts 1 and 2 only". The use of the words "and accordingly"
indicates, in my opinion, that it was only in consequence
of the grant of leave
to appeal against the convictions that leave to appeal against the sentences was
granted, and that it was the
view of the judges granting the certificate that if
the convictions were to be upheld the sentencês would stand. We however
heard argument on the sentences to be imposed if the convictions were to be
upheld.
There was no evidence directly implicating the appellant in the commission of
either of the offences referred to in count one and
two. The appellant admitted
that he was, on 27 May 1988, found in possession of the Nissan by the police and
that on 1 June 1988
he was, in effect, found in possession of two booklets, one
of which contained certain other documents relating to the Toyota. He
attempted
to explain his possession of the Nissan and the
-4-
documents relating to the Toyota but the court disbelieved him and found that
his explanation was "a pack of lies". He also denied
that he was in any way
implicated in the death of the deceased or the robbery of the Nissan, denied
that he was in any way implicated
in the robbery of the Toyota or the firing of
a shot at Thabane and denied that he had ever had any fire-arm or ammunition in
his
possession. The trial court found these denials to be false.
The appellant's counsel (to whom we are in indebted for an able argument)
rightly, in my view, did not criticize the trial court's
acceptance of the
evidence for the State nor its rejection of the appellant's evidence, but
confined himself to a submission that
the facts proved by the State did not
prove the guilt of the appellant on counts one or two, notwithstanding that he
was found to
be a lying witness.
-5-
The effect of the evidence for the State may be summarized as follows: At
some time between 5.30 p m and about 8.30 p m on 14 April
1988 the deceased was
driving the Nissan in a street in Boksburg North when he was, in some way or
another, waylayed and shot from
a distance of not more than 1 m on the lef t
side of his neck (just below the junction of the neck with the jawbone). The
bullet
which killed the deceased was a 7,65 mm calibre Selluer and Bellet
bullet. The deceased's assailant shot him in order to rob him
of the Nissan.
Some six weeks later (in circumstances which I shall describe later) a 7,65 mm
Selluer and Bellet empty cartridge
case ("the Nissan doppie") was found by the
police under the right-hand side of the driver's seat of the Nissan. At about 8
p m on
22 April 1988, i e eight days after the deceased was killed, one Petrus
Thabane was driving the Toyota along a road from Katlehong
to Germiston when an
incident occurred which is correctly described by the trial
-6-
court as follows: (the references to the accused are
references to the appellant)
"His girl-friend Jwalane Molabe sat in the left front seat of the vehicle. At
the post office Thabane was hailed by two men who indicated
that they wanted to
be transported in the direction of Germiston. Thabane stopped the bus and the
two men boarded and seated themselves
on the third row of seats from the front.
As he approached a junction in the road, one of his passengers asked him to
stop, saying
that he wanted to go to the 'freeway'. Thabane obliged and as the
passenger alighted from the vehicle on its left side he said that
his companion
would pay the fares of both passengers. Thabane saw the man walking to the front
of the vehicle, but turned to face
the other passenger still in the vehicle who
was 'fiddling' with his fob-pocket from which a R5,00 note protruded. Thabane
suddenly
heard the driver's door open. As he looked round, he saw the accused
with a fire-arm standing on the ground next to him. The fire-arm
was a hand-gun
about seven inches in length; the accused pointed it at him. Thabane said he
could clearly see the face of the accused,
he wore a balaclava rolled up on his
head above his eyes. The accused said to him: 'Give me the vehicle' and told him
to get out.
Thabane did so, leaving the vehicle with its engine still running
and his headlights on and the key in the ignition switch. Once
outside the
vehicle Thabane backed away but kept his eyes on the accused, who climbed into
the driver's seat but kept the f ire-arm
pointed at Thabane. As Thabane alighted
from the vehicle he noticed that
-7-
Jwalane Molabe climbed out of the front seat on the left side of the car and
walked or ran towards the rear of the vehicle. Thabane
stated that as he tried
to escape he was very frightened; he cóuld feel his legs trembling.
Before he reached the edge of
the road on the far side, he stumbled and fell. At
that moment the accused fired at him. The bullet struck the tarred surface of
the road about two feet from where he landed on the road. It caused a bright
spark. Thereupon the accused pulled off in the bus."
Later that
evening the police and Thabane and his girl-friend
searched the area where
Thabane had been shot at and Thabane
found a spent 7,65 mm Selluer and Bellet cartridge case ("the
Toyota
doppie"). The Toyota doppie and the Nissan doppie
were fired from the same
fire-arm. There is a strong
possibility that that fire-arm was a 7,65 mm
Walther or
Manhurin automatic pistol. In April 1988 the appellant's
uncle
was at the taxi rank in Empangeni in Natal when he saw
the appellant driving
a white Nissan minibus which looked
new. The evidence of an employee of the
owner of the Nissan
was that it was new when it was the subject of the
robbery.
-8-
The appellant's uncle was furthermore shown a photograph of the Nissan and
said that the white Nissan that the appellant was driving
in April ".. het soos
hierdie een gelyk . .". On 27 May 1988 the appellant was found by Detective
Constable Koekemoer sitting in
the Nissan which was parked in a street in
Empangeni. He questioned the appellant and arrested him and parked the Nissan in
a fenced-off
area adjoining the Empangeni Police Station. On 30 May 1988 he
searched the Nissan thoroughly and next to the right-hand bolt securing
the
driver's seat to the floor of the Nissan he found the Nissan doppie.
It appears that the weapon from which the bullet was fired which killed the
deceased was never found.
As already mentioned, the appellant (a) gave an explanation which was
rejected by the trial court as to how he came to be in possession
of the
-9-
Nissan;
(b) denied that he had ever been to the place where the deceased was killed;
(c) denied that he had shot at Thabane or ever been in possession of any
fire-arm of any description
whatsoever;
(d)
denied that he had robbed Thabane of the
Toyota.
The appellant said furthermore
that he did not
obtain possession of the Nissan until May 1988 and that until
very shortly
before that he was driving his uncle's Toyota
minibuses. There is one passage
in the appellant's evidence
under cross-examination which suggests that he
admitted that
he was driving the Nissan during April. He was asked
"But anyway where were you stationed at the stage when, did you see your uncle
last year, during April, when you were driving the
Nissan E-20 bus, the one here
on Photo 1, Exh E? --- Yes, my Lord, I saw
him."
-10-
Subseguent questioning of the appellant, however, revealed that he was
denying that he could have been seen driving the Nissan in
April. It was not his
case that if his uncle saw him in April in possession of a white Nissan minibus
in Empangeni it was some vehicle
similar to but not the Nissan the subject of
the robbery. He said that when he was driving the Nissan in Empangeni he did, on
one
occasion, see his uncle but that this had taken place in May. The trial
court however rejected the appellant's evidence on this point
and accepted the
evidence of his uncle. It follows that it was in April that the appellant was
seen driving the Nissan.
Furthermore, no explanation was advanced by the appellant for the presence of
the Nissan doppie under the driver's seat notwithstanding
that his attention and
that of his counsel was pertinently drawn to the significance of the evidence
adduced by the State relating
to this doppie. It is
-11-
true that in theory a number of explanations could have been
advanced as
to how it got there which would be consistent
with the appellant's innocence,
but the absence of evidence
laying the foundation for such explanations would remove them
from the range of reasonable possibility. The following
remarks of
Schreiner J in
Ex Parte Slabbert & Prinsloo. In re
Rex v
Slabbert & Prinsloo
1944 TPD 327
at 330 set out the
circumstances in
which it is legitimate to reject an
explanation because no evidentiary
foundation therefor has
been laid by the accused
"In cases turning mainly or wholly on circumstantial evidence the Court has to
explore the possibility that there may be an innocent
explanation of apparently
damaging facts. It will depend on the circumstances whether the fact that any
particular explanation was
not advanced by the accused is important or not.
Sometimes defence evidence would be required to make an explanation appear
reasonably
possible. The cases relating to the recent possession of stolen goods
provide freguent examples. To take a related sort of case,
if the accused's hat
wére found in a house that had just been burgled it would theoretically
be possible, even in the absence
of defence evidence
to
-12-
imagine circumstances explanatory of the hat's presence there consistently with
the accused's innocence. The hat might have been
lost by or stolen from the
accused or he might have lent it to someone. It might be one of a number of hats
belonging to the accused
and might simply have disappeared. But unless he gave
evidence laying the foundation for one or other of these explanations the
possibility
that one of them might be the true explanation would presumably be
regarded as remote and not reasonable. In such cases the accused
would fairly
certainly have been alive to the explanation if true and so his failure to
propound it would remove it from the range
of reasonable possibility. Lapse of
time may introduce the factor that the accused may have forgotten the facts
which might provide
an innocent explanation. Whether that might reasonably
explain his failure to propound the facts will depend on their nature and
on the
length of time involved. Unless at the time when an explanation is to be
expected of him, i.e. at the trial or earlier according
to the circumstances, it
is reasonably certain that the accused is aware of the facts and appreciated
their importance there is no
reason to reject the explanation merely because no
evidentiary foundation therefor is laid by the accused."
As I
have already mentioned, it is clear that the accused was
pertinently made
aware of the facts by the cross-examination
and that he, or at least his
counsel, must have appreciated
their importance. There is no question of lapse of time
-13-
having introduced the factor that he may have forgotten the facts which might
provide an innocent explanation. In these circumstances
it is legitimate to hold
that it was proved that the Nissan doppie was ejected from the murder weapon
when it was fired at and killed
the deceased and that it lodged under the
driver's seat where it remained until it was found by the police on 30 May 1988.
As already
mentioned, it was proved beyond reasonable doubt that eight days
after the deceased was killed the appellant was in possession of
the weapon that
produced the Nissan doppie and that he fired it at Thabane. That means that on
22 April the appellant was in possession
of the murder weapon. It does not, of
course, necessarily follow that he was in possession of it when the deceased was
killed, still
less that he fired the shot that killed the deceased. It is,
however, necessary in considering whether that is the only reasonable
inference
to evaluate the effect of the appellant's false explanation as
-14-
to how he came to be in possession of the Nissan in April 1991, the very
month in which the deceased was murdered, and
his false denial that on 22 April 1991 he was in possession of the murder
weapon. There is a clear distihction in our law between
the failure of an
accused to give evidence where the case against him is based on circumstantial
evidence and such failure where
there is direct evidence implicating him. See
S v Mthetwa
1972(3) SA 766 (A) at 769B-F. The same applies where the
accused gives false evidence. Even where there is no direct evidence of
what
happened "at the vital stage of the drama" however and the trial court has to
reason by inference, the circumstances may be
such that the falsity of
appellant's explanations may tend to strengthen the inferences which can be
drawn. See
S v Holshausen
1984(4) SA 852 (AD) at 861D-I.
The fact that the appellant was seen driving the
-15-
Nissan within (at most) a couple of weeks after the deceased was robbed of it
and murdered, coupled with the fact that eight days
after that murder the
appellant was in possession of the murder weapon may, in the words of Eloff AJA
in
Holshausen
's case supra, "... in the absence of an acceptable
explanation attract an adverse inference" namely, that it was the appellant who
shot the deceased. The fact that he gave a false explanation of his possession
of the Nissan and no explanation at all of his possession
of the murder weapon
strengthens that inference. Mr
Gertsch
on behalf of the appellant
submitted that the distance between Boksburg, where the murder took place, and
Empangeni, where the appellant
was seen and subsequently found in possession of
the Nissan, was a factor which weakened any inference sought to be drawn from
such
possession by the State. This contention cannot, however, be sustained. In
the first place, what was stolen was a minibus which is
by its very nature
highly mobile and
-16-
capable of traversing that distance in substantially less than a day.
Secondly, on his own version it was the appellant's work to
drive a minibus taxi
between Empangeni and Johannesburg. His work, in other words, toók him to
the Reef. It is necessary,
of course, to bear in mind that there may be a number
of reasons other than guilt of the offence charged for an accused person giving
lying evidence. See
S v Mtsweni
1985(1) SA 590 (A) at 594A-E and the
cases there referred to. In this case it is a real factor to be taken into
account that the
appellant may have lied about his possession of the fire-arm
and ammunition in order to distance himself not from the robbery and
shooting of
the deceased but from the second robbery and shooting (counts three and four).
That cannot, however, explain away his
false explanation of his possession of
the Nissan nor the absence of any explanation for the presence of the Nissan
doppie. In the
circumstances of this case, unlike
Mtsweni
's
-17-
case, the finding that the deceased was robbed of the Nissan is a necessary
inference from the proved facts - indeed it was common
cause - and, for the
reasons set out above, the trial court was justified in finding that it was the
appellant that committed that
robbery. I am satisfied also that the trial court
was, in the particular circumstances, also justified in finding that it was the
appellant who shot and killed the deceased. Furthermore, he fired the shot at
more or less point blank range at a vital part of the
deceased's anatomy and the
intention to kill cannot be doubted. It follows that he was correctly convicted
of the murder and robbery
(counts 1 and 2).
It remains to consider the question of sentence.
I
deal first with the sentence of death imposed in
respect of
the murder charge. At the time when the appellant was
sentenced
the death sentence was mandatory, no extenuating
-18-
circumstances having been proved. The position has been substantially altered
by the amendments effected by the Criminal Law Amendment
Act, No 107 of 1990. It
is unnecessary to recapitulate the principles which have been laid down in a
series of decisions in this
Court. There are undoubtedly aggravating factors
namely, that the deceased was deliberately killed to enable the appellant to rob
him and his body callously left lying in the road. No evidence was adduced in
extenuation. Although the appellant went into the witness
box because he said he
wanted to say something to the court after the court a quo had held that there
were no extenuating circumstances,
he simply repeated his denial of guilt and
did not seek, in any way, to extenuate his conduct. The concept of mitigating
factors
is wider than that of extenuating circumstances and the fact that the
appellant had no previous convictions is undoubtedly a mitigating
factor. It
may, in appropriate cases,be an indication that there is a
-19-
reasonable prospect that a long sentence of imprisonment would reform the
accused. This is one of the main objects of sentence. As
against that, however,
is the f act that the appellant, scarcely a week after murdering and robbing the
deceased of the Nissan, robbed
Thabane of the Toyota and shot at him intending
to kill him - at a stage when the appellant was already in exclusive control of
the
Toyota and Thabane was making no effort to interfere with the appellant: on
the contrary, he was trying to escape from the appellant.
The prospects of
reform are therefore remote. A further factor which must operate against the
appellant is the fact that this kind
of offence is on the increase and the
deterrent aspect of the sentence to be imposed must, in the circumstances, loom
large. I am,
therefore, driven to the conclusion that this is one of those
exceptional cases where the death sentence is imperatively called for.
Mr
Gertsch, rightly in my view, did not seek to argue that the sentence
-20-
imposed by the trial court in respect of the robbery charge was vitiated by
any misdirection or that it was in the circumstances excessive.
The appeal is accordingly dismissed.
A J MILNE
Judge of Appeal
NESTADT JA ]
] CONCUR F H GROSSKOPF JA ]