About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1990
>>
[1990] ZASCA 141
|
|
S v Francis and Another (95/89) [1990] ZASCA 141; [1991] 2 All SA 9 (C) (26 November 1990)
95/89
N V H
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
JUDE
FRANCIS
First Appellant
BAFO BAWANA NGUQU
Second
Appellant
and
THE STATE
Respondent
CORAM
: SMALBERGER, STEYN, JJA, et PREISS, AJA
HEARD
: 2 NOVEMBER 1990
DELIVERED
: 26 NOVEMBER 1990
JUDGMENT
SMALBERGER, JA :-
Twelve accused, including the two appellants, were arraigned in the Natal
Provincial Division before THIRION J and two assessors on
a main count of
terrorism in contravention of section 54(1) of
/2
2
the Internal Security Act 74 of 1982 ("the Act"). In
addition there were
various alternative counts against
all but two of the accused. The appellants
were
respectively accused 5 and accused 10 at the trial.
For the sake of
convenience I shall refer to them
individually as such. At the end of the
State case
accused 7 and 8 were discharged; accused 1 was
acquitted at the
conclusion of the trial. The
remaining accused were all convicted on the main
count
and sentenced to varying terms of imprisonment. The
appellants were subsequently granted leave by the court a q
uo
to
appeal to this Court against their convictions
only. Hence the present appeal.
Section 54(1) of the Act provides:
(1) Any person
who with intent to -
(a) overthrow or endanger the State authority in the Republic;
/3
3
(b) achieve, bring about or promote any constitutional, political, indus= trial,
social or economic aim or change in the Republic;
(c) induce the Government of the Republic to do or to abstain from doing any act
or to adopt or to abandon a particular standpoint;
or
(d) put in fear or demoralize the general public, a particular population group
or the inhabitants of a particular area in the Republic,
or to induce the said
public or such population group or inhabitants to do or to abstain from doing
any act,
in the Republic or elsewhere -
(i) commits an act of violence or threatens or attempts to do so;
(ii) performs any act which is aimed at causing, bringing about, promoting or
contributing towards such act or threat of violence,
or attempts, consents or
takes any steps to perform such act;
/4
4
(iii) conspires with any other person to commit, bring about or perform any
act or threat referred to in paragraph (i) or act referred
to in paragraph (ii),
or to aid in the commission, bringing about or performance thereof; or
(iv) incites, instigates, commands, aids, advises, encourages or procures any
other person to commit, bring about or perform such
act or threat,
shall be guilty of the offence of terrorism and liable on conviction to the
penalties provided for by law for the offence of
treason."
At the time of the the
alleged conduct giving
rise to the appellants' convictions, the African
National Congress ("the
ANC") and its so-called
military wing, Umkhonto We Sizwe ("MK"), were
unlawful
organizations in terms of the provisions of section 1
of the Act.
The preamble to the main count in the
indictment alleged that at all relevant times "the aims
/5
5 of the ANC included
inter alia
the overthrow or
coercion of the Government of the Republic and/or the endangering of the State
authority in the Republic by means
of violence or threats of violence or by
means which include or envisage violence and/or threats of violence", and that
the accused,
being members or active supporters of the ANC, "associated
themselves with the aims, obj ects and activities of the ANC and furthered
or
attempted to further the aims, objects and activities of the ANC". The gravamen
of the main count was that the accused, acting
alone or in furtherance of a
common purpose with each other, and with intent to achieve one or more of the
objects set out in section
54(1)(a) to (d) of the Act, unlawfully conducted
themselves in one or more of the respects listed in section 54(1)(i) to (iv) of
the Act. Details were furnished of the specific conduct alleged
/6
6 against each accused.
The indictment sets out, in
certain annexures thereto, the acts of accused 5 and 10 on which the State
relies to prove their guilt.
It is not necessary to detail these. Nor is there
any need to analyse the indictment and further particulars thereto. At the
hearing
of the appeal it was common cause that the convictions of accused 5 and
10 were dependent upon proof, against each personally, of
their alleged conduct.
That conduct will in due course become apparent when I deal with the evidence
against them. The conyiction
of accused 5 was based on the acceptance by the
trial court of the evidence of an accomplice referred to at the trial as D (to
whom
I shall continue to refer as such). The conviction of accused 10, on the
other hand, was based on inferences drawn by the court from
certain pointings
out which it accepted had
/7
7 been made by accused 10. Neither accused 5 nor accused 10
gave evidence in his defence. Because their respective convictions were
based on
totally different facts and considerations I propose dealing separately with the
appeal of each.
The appeal of accused 5
The gist of D's evidence, insofar as it
relates to accused 5, is as follows. He (i e D), a recognised political
activist, was recruited.
as a member of the ANC and MK by accused 3. The latter
was a doctor at the King Edward VIII Hospital ("the Hospital") in Durban.
After
joining MK (which had been described by accused 3 as the "underground structure"
of the ANC) D was told by accused 3 to recruit
a cell of "reliabie people". He
considered accused 5 a suitable candidate, and approached him in a
/8
8
bus when returning from a meeting of the United Democratic Front at Natal
University. He arranged with accused 5 to meet accused 3
at the Hospital the
following morning. The meeting took place at the Hospital cafeteria. D was
present at the meeting. Accused 3
told accused 5 that he was recruiting Indians
for the ANC. Accused 5 was apparently willing to join the ANC. He was told by
accused
3 that ANC operators do not function under their own names. Accused 5
chose the code-name "Lantis". (D had previously been given
the code-name
"Revelano Singh" alias "Rev"; accused 3's code-name was "Mike".) They were
thereafter joined by one Lincoln. It is
commón cause that Lincoln at the
time was the commander of MK for the Natal region. They accompanied Lincoln to a
room in
the Hospital where he proceeded to give them theoretical training in the
use of explosives (grenades
/9
9 and limpet mines) and the maintenance of "dead letter
boxes" ("DLB's"), the latter being a depository for arms and explosives. He
also
instructed them on surveillance, discipline and the use of code names. They
later returned to the cafeteria. They had lunch
with accused 3; thereafter
accused 3 gave them money for their bus fares and they went home. There had
earlier been some discussion,
initiated by accused 3, about recruitment. Accused
5 had mentioned that he had two persons in mind to recruit.
On the following
Wednesday a further meeting took place between accused 3, accused 5 and D at the
Unit 2 swimming pool. Accused 5
reported that he had been unsuccessful in
enlisting the persons he had attempted to recruit. On a later date accused 3
telephoned
D. He asked D to contact accused 5, and arranged for them to meet him
that same night at the
/10
10 Unit 2 Shopping Centre. They met as arranged. Accused 3
was accompanied by Lincoln. D and accused 5 were blindfolded. They were
then
driven to a house where they were taken into a room. There various explosive
devices were taken out of a bag. Lincoln instructed
them in the use of grenades
and the operation of limpet mines. After the training session they were again
blindfolded, and were then
taken home. An arrangement was made to reconnoitre
the house of Mr Rajbansi (the then chairman of the House of Delegates) the
following
evening. The reconnaissance was duly carried out. Accused 5 was
present. In the car on the way back it was decided to attack Rajbansi's
house on
the following Sunday (4 August 1985). D asked accused 3 for a limpet mine for
that purpose. On the Sunday evening at about
6 p m D and his cell members met
accused 3 and Lincoln at
/11
11
the Unit 2 swimming pool. Accused 5 was not present. They were offered the
choice of two limpet mines. They eventually decided to
use the smaller one. D,
accused 3 and Lincoln then drove to the Lakehaven Children's Home where the
larger limpet mine was entrusted
to accused 5 for safe-keeping. Later that night
D and the members of his cell placed a limpet mine on the sidewalk outside
Rajbansi's
house. Accused 5 was not present when this occurred. (It is common
cause that a limpet mine exploded outside Rajbansi's house at
approximately
10.35 p m on 4 August 1985.)
The next meeting involving accused 5 took place in November 1985. D met
accused 3 and 5 at the Hospital. Accused 3 advised D to get
a code 8 driver's
licence, and accused 5 to get a code 11 licence. He gave D R40-00 to enable him
to book
/12
12 lessons for a driver's licence. Subsequently it was
decided by accused 3 and D to target the Chatsworth House of Delegates' office
for a bomb attack. On Friday 13 December 1985 accused 3 met D at the Unit 2
swimming pool. From there they drove to the Lakehaven
Children's Home. There D
called accused 5. Accused 5 handed accused 3 a packet containing a limpet mine.
Accused 3 and D left accused
5 and returned to the swimming pool. D and his cell
members were later that evening thwarted in their attempt to bomb the Chatsworth
House of Delegates' office because of the presence of security guards. They then
switched their target to the Chatsworth Court House
building. (It is common
cause that an explosion occurred there at 6.15 p m on 13 December 1985.) D did
not give any further evidence
implicating accused 5.
/13
13 Although, as previously mentioned, accused 5 did not
testify, his version was put to D by his counsel. It was to the following
effect. In the bus on the way home from the United Democratic Front meeting at
Natal University he was approached by D. He was asked
by D to join him (D) at a
meeting the following day with someone who wished to discuss political matters
with them. Accused 5 met
D the following morning at D's house. D told accused 5
that they were going to receive political lessons in relation to,
inter
alia
, the ANC and the history of the political struggle in South Africa. D
said that in order to protect their identity they should adopt
fictitious names.
Accused 5 adopted the name "Lantis" and D that of "Rev". They then proceeded to
the Hospital cafeteria where accused
3 was introduced to accused 5 as "Mike".
Later Lincoln
/14
14 arrived. Thereafter accused 3 left. Lincoln took accused
5 and D to a small room in the Hospital where he lectured to them on various
political topics including the history of the ANC. In a later discussion about
their political views D said he favoured violence;
accused 5 disagreed. They
eventually returned to the cafeteria where they were given money by accused 3
for their bus fares. Towards
the end of 1985 accused 5 approached D and asked
him how best to contact accused 3 as he needed money to obtain a driver's
licence.
As D also wished to see accused 3, they proceeded to the Hospital
tpgether. Accused 3 promised to assist accused 5, and advanced
him R10-00 to
book for his learner's licence. In response to a request for a loan by D in
order to pay certain accounts, accused
3 gave D R30-00. This was claimed to be
the full extent of accused 5's
/15
15 involvement in the matters testified to by D. What was
put to D under cross-examination constitute admissions made on behalf of
accused
5 (
S v W
1963(3) SA 516(A) at 523 C - F).
It is common cause that D' s
evidence, if accepted as true, would render accused 5 guilty of terrorism as
charged, as his conduct
would fall within the provisions of s 54(1) of the Act.
This appeal consequently turns on the question whether D's evidence was rightly
accepted by the trial court. Although, because accused 5 failed to testify, D's
evidence implicating accused 5 stands uncontradicted,
it does not follow that
such evidence is necessarily true (
Siffman v Kriel
1909 TS 538
at 543) or
that the trial court was bound to accept it (
Nelson v Marich
1952(3) SA
140 (A) at 149 A - B). As stated by GREENBERG, JA, in
Shenker Brothers v
Bester
1952(3) SA 664 (A) at
/16
16
670 G, "the circumstance that evidence is uncontradicted is no justification
for shutting one's eyes to the fact, if it be a fact,
that it is too vague and
contradictory to serve as proof of the question in issue". It was therefore
incumbent upon the trial court
to properly evaluate the evidence of D in the
light of its alleged deficiencies, and the criticisms voiced against it, in
order to
determine whether it measured up to the standard reguired for its
acceptability. If it did not measure up to such standard, it would
not avail the
State in the discharge of the onus of proof upon it that accused 5 failed to
testify. While an accused person's failure
to testify may in appropriate
circumstances be a factor in deciding whether his guilt has been proved beyond
all reasonable doubt,
this is only so where the State has
prima facie
discharged the onus upon it. A failure
/17
17 to testify will not remedy a deficiency in the State case
such as the absence of apparently credible implication of the accused
(
S v
Masia
1962(2) SA 541 (A) at 546 E - F). The thrust of the argument of Mr
Magid (who appeared for the appellants) was that the trial court
failed to
evaluate D's evidence properly -had it done so it would have found his evidence
totally unacceptable. Consequently there
would have been no basis on which to
convict accused 5, notwithstanding his failure to give evidence.
The trial
court delivered itself of a careful and well-reasoned judgment. It is apparent,
both from the terms of the judgment and
the treatment of the evidence, that the
court was at all times aware, when considering D's evidence, that it was dealing
with an
accomplice who was also a single witness. It was fully conscious of the
dangers inherent in such
/18
18
evidence and the need to exercise caution in the consideration and evaluation
thereof. It was alive to the shortcomings in D's evidence.
It was also aware of
the criticisms directed at D's evidence. (It is common cause that the arguments
advanced on appeal relating
to the non-acceptability of D's evidence were raised
at the trial.) Many of these have, been specifically dealt with in the judgment.
The fact that some have not been mentioned does not mean that they were not duly
considered. As has frequently been said, no judgment
can be
all-embracing.
This Court's powers to interfere on appeal with the findings
of fact of a trial court are limited (
R v Dhlumayo and Another
1948(2) SA
677 (A)). Accused 5's complaint is that the trial court failed to evaluate D's
evidence properly. It is not suggested
that the court misdirected itself in any
respect. In
/19
19
the absence of any misdirection the trial court's conclusion, including its
acceptance of D's evidence, is presumed to be correct.
In order to succeed on
appeal accused 5 must therefore convince us on adequate grounds that the trial
court was wrong in accepting
D's evidence - a reasonable doubt will not suffice
to justify interference with its findings (
R v Dhlumayo
(
supra
);
Taljaard v Sentrale Raad vir Koöperatiewe Assuransie Bpk
1974(2) SA
450 (A) at 452 A - B). Bearing in mind the advantage which a trial court has of
seeing, hearing and appraising a witness,
it is only in exceptional cases that
this Court will be entitled to interfere with a trial court's evaluation of oral
testimony (
S v Robinson and Others
1968(1) SA 666 (A) at 675 G - H).
In an attempt to convince us that the trial court was wrong in accepting the
evidence of D, Mr
/20
20
Magid analysed D's evidence in considerable detail. In doing so he pointed
out what he claimed were contradictions, inconsistencies
and improbabilities in
D's evidence. He also referred to other features in D's evidence which he relied
upon as reflecting adversely
on D's credibility. The cumulative effect of these
criticisms, he contended, was to render D's evidence unacceptable, thereby
obviating
the need for any reply by accused 5.
I do not propose to deal with each of the points of criticism advanced
against D's evidence. It will suffice to refer at random to
some in order to
illustrate their nature and substance (or lack of it). In his evidence-in-chief
D had stated that when he first
made contact with accused 5 in the bus they were
seated some distance from each other; under cross-examination it transpired that
at a certain stage he
/21
21
had asked the person sitting next to accused 5 to move to enable him to speak
to accused 5. There was confusion in his evidence whether
the question of
recruitment arose on the occasion of the first meeting between himself, accused
3 and accused 5, or the following
Wednesday. He contradicted himself on whether
Lincoln joined him and accused 5 in the cafeteria before or after accused 3 left
them.
He was criticised for stating in his evidence-in-chief that he
made
a statement to the police before being moved to Scottburgh gaol, whereas under
cross-examination he claimed to only have
signed
his statement after his
removal to Scottburgh gaol. To deal with these briefly. There is a distinct
difference between making and
signing a statement. D was never asked whether he
had the same incident in mind when he spoke of making and signing his
statement.
/22
22
He may well have made an oral statement before his removal to Scottburgh, and
have subsequently signed a prepared written statement.
The alleged contradiction
may therefore not be one at all. The bus incident assumes little importance in
view of accused 5's admission
(during cross-examination of D) that contact
between them took place on the bus which led to the meeting with accused 3 the
following
day. There was no reason for D to lie as to how that admitted contact
took place. The simple explanation for this so-called inconsistency
is that the
full picture only emerged under cross-examination. Likewise the contradiction
concerning whether accused 3 left before
or after Lincoln joined D and accused 5
in the Hospital's cafereria is of no moment in view of accused 5's admitted
presence at the
time. On the question of recruitment the trial court held that
D's differing
/23
23
evidence could not satisfactorily be reconciled. The contradiction is,
however, not one of any great substance. It must be borne in
mind that D was
testifying to a series of events which had occurred a long time previously. The
fact that he had been kept in solitary
confinement for some time could also have
had an effect on his memory - a consideration to which the trial court at all
times was
alive. Of the improbabilities raised in argument, most of them were
effectively dealt with in the judgment of the trial court. One
such
improbability was that accused 3 would have given D and accused 5 R40-00 with
which to obtain learner's licenses. As the trial
court correctly pointed out, to
the extent that D's evidence was improbable in this regard, the defence version
of the incident (that
accused 5 approached a comparative stranger to borrow
money from him and D seized the
/24
24
opportunity to borrow money to pay his accounts) is no less improbable.
I
have given anxious consideration to the individual points of criticism raised
against D's evidence as well as their cumulative effect.
In my view D's evidence
has not been shown to be substantially flawed. There are no material
contradictions or inconsistencies in
his evidence. Nor are there improbabilities
in his evidence of such a degree as to render his veracity suspect. He has not
been shown
to have been a deliberately untruthful witness. At best for accused 5
it can be said that D was not a perfect witness who gave unblemished
evidence.
It is not necessarily expected of an accomplice, before his evidence can be
accepted, that he should be wholly consistent
and wholly reliable, or even
wholly truthful, in all that he says. The
/25
25
ultimate test is whether, after due consideration of the accomplice's
evidence with the caution which the law enjoins, the court is
satisfied beyond
all reasonable doubt that in its essential features the story that he tells is a
true one (
R v Kristusamy
1945 A D 549
at 556).
There are, in my view,
a number of safeguards which reduce the risk of D falsely implicating accused 5.
The initial contact between
D and accused 5 in the bus, the meeting with accused
3 at the Hospital the following day, the introduction to Lincoln and the time
subsequently spent with him, are all admitted by accused 5, albeit in a
different context. Accused 5 also admits accompanying D to
accused 3 in
November, but for a different reason from that advanced by accused 5. The
significance of accused 5's admitted involvement
with D is that it reduces the
risk of D
/26
26
falsely implicating accused 5 in order to shield the real culprit. It leaves
the question, however, whether D may be falsely implicating
accused 5 by (1)
distorting otherwise innocent or lawful events, or (2) involving him in events
which did not occur. The risk of
(1) is substantially reduced by the admitted
fact that code-names were agreed to before the meeting with Lincoln. If the
meeting
was for an innocent or lawful purpose there would have been no need for
D and accused 5 to hide their true identities. The need for
code-names is
consistent only with their involvement in some nefarious or unlawful conduct,
and to that extent is corroborativé
of D's evidence. The danger of (2) is
lessened by the fact that D and accused 5 were apparently on a good footing with
each other,
and D has no particular ground for rancour against accused 5. In
addition, if D had deliberately sought to falsely
/27
27 implicate accused 5 by involving him in events in which
he had played no part he could have, and probably would have, gone much
further
in incriminating him than he did. A further safeguard is the absence of
gainsaying evidence from accused 5 (
S v Hlapezula and Others
1965(4) SA
439 (A) at 440 D - H).
D's evidence, on a proper appraisal thereof,
establishes a strong
prima facie
case against accused 5. His evidence
directly implicates accused 5 in criminal conduct. If accused 5 were innocent he
could, with
apparent ease, have refuted D's evidence under oath. He failed to do
so. Whatever the reason therefor might have been, such failure
ipso facto
strengthened the State case and rendered D's evidence conclusive of his
guilt (
S v Mthetwa
1972(3) SA 766 (A) at 769 B - E). I am accordingly
satisfied that the trial court was correct in accepting D's evidence as
/28
28 true beyond all reasonable doubt. It follows that accused
5 (in view of the concession that D's evidence, if accepted, establishes
his
guilt) was rightly convicted. In the result his appeal must fail.
The appeal of accused 10
The evidence establishes conclusively that
accused 10 made two pointings out after his arrest in conseguence of which a
quantity of
arms and explosives was discovered. The first occurred on 11
February 1986 behind 4028 Mpanza Road, Lamontville - the house where
it is
common cause accused 10 resided with his family ("the first pointing out"). The
second took place on 10 April 1986 at KwaGijima,
where accused 10 pointed out an
area in which two landmines were subsequently found ("the second pointing
out").
The circumstances surrounding the first
/29
29
pointing out were the following. Accused 10 directed
the police to 4028
Mpanza Road. After alighting from
the police vehicle he led the police along
a footpath
to the rear of his house. There, a short distance off
the footpath, he pointed out a spot between two small
banana trees. This
is depicted on the photograph,
Exhibit D 19. The area in question was
overgrown with
fairly lush vegetation. Quite obviously the
vegetation had
not been disturbed for some time. The
spot pointed out by accused 10 was
marked "D" on the
plan, Exhibit C. The subseguent events are
succinctly
set out in the judgment of the court a
quo
as follows:-
"A spade was obtained and accused 10 started digging at the place which he had
pointed out. He dug superficially and in the process
dug up an area which
eventually measured about 5 x 3m. After accused 10 has been digging for about 15
minutes one of the members
of the police party discovered a plastic bucket in
the ground at the point
/30
30
marked as E, about 5 paces from the point marked as D on exh C. This bucket
contained a number of books and also the reference book
of accused 10. After the
bucket had been inspected accused 10 resumed his digging and after having dug
for about 1 1/2 hours accused
10 eventually went back to the spot which he
originally pointed out and on digging deeper there he unearthed a plastic bag
there.
In this bag were found inter alia a handgrenade, a 158 mini limpet mine,
a box of detonators, 4 MUV2 pull switches and 35 rounds
of
ammunition."
The second pointing out
occurred as follows.
Accused 10 directed the police to a spot in the
vicinity of the KwaGijima
sports grounds. He moved
about between some ruins and carefully surveyed
the
area. He then pointed out a certain area with a
sweeping movement of his arms. He also pointed to an
embankment on the
opposite side of the road from where
he was standing. He then crossed the
road, mounted
the embankment and, after turning to his left,
proceeded to
walk along it. By then one of the
/31
31 policemen at the scene was on the embankment walking
towards accused 10. When they were about 15 metres apart the policeman
discovered
two TM 57 landmines. By then accused 10 had proceeded about 40 - 50
paces along the embankment. While walking along the embankment
accused 10 had
been looking in the adjoining grass. It is appropriate to mention at this stage
that accused 10 was arrested by one
Sgt Moodley on 24 October 1985 some 300
metres from the KwaGijima sports grounds. At the time of his arrest he was in
possession
of an empty trunk. On later examination the inside of the trunk was
found to contain traces of RDX, an explosive substance found
in TM 57
landmines.
To revert to the first pointing out. The fact that accused 10
pointed out the precise location of the weapons' cache justifies an
inference of
knowledge on his part that the weapons were buried
/32
32 there (
R v Tebetha
1959(2) SA 337 (A) at 346
D).
Such knowledge may have been acquired in a number of ways. Accused 10 may
personally have concealed the weapons there; or he may have
observed someone
else do so; or he may have been told that they were buried there. Knowledge by
accused 10 cannot therefore
per se
be equated with possession of the
weapons by him. But knowledge may, depending upon the circumstances, lead to an
inference of possession
and, ultimately, guilt (
S v Tsotsobe and Others
1983(1) SA 856 (A) at 864 D;
S v Shezi
1985(3) SA 900 (A) at 906 A). In
this regard it should be emphasised that possible innocent explanations of
knowledge will rarely
merit serious consideration if they are not put forward
under oath (cf.
S v Kanyile and Another
1968(1) SA 201 (N) at 202 E -203
B).
/33
33
The trial court concluded, on the evidence, that accused 10 had possessed the
weapons discovered behind his house. It was justified
in arriving at such
conclusion. The weapons were found in relatively close proximity to the house
occupied by accused 10. He knew
the precise spot where the weapons were buried
even the fact that the area was overgrown with vegetation did not prevent him
from
accurately pointing it out. This renders it unlikely that he was merely
told where the weapons were hidden. In any event, it is unlikely
that an
innocent outsider would have been told of the whereabouts of a weapons' cache of
that nature. The finding of a bucket containing
accused 10's reference book
close to where the weapons were discovered is a highly incriminating piece of
evidence linking him to
the area in question. It strongly suggests that accused
10, and not someone else,
/34
34
concealed the weapons there. Had accused 10 innocently acquired knowledge of
the presence of the weapons one would have expected him
to testify accordingly.
It is not for this Court to speculate about possible innocent explanations not
specifically advanced by accused
10 (
S v Rubenstein
1964(3) SA 480 (A) at
487 H - 488 A). In the circumstances the proved facts coupled with accused 10's
failure to testify, justify
the inference, as the only reasonable one, that he
was responsible for concealing the weapons where they were later found (
S v
Letsoko and Others
1964(4) SA 768 at 776 C - E). This in turn, in the
absence of any explanation from accused 10, leads to the inference that he
possessed
the weapons in guestion. It is common cause that such possession,
having regard to the circumstances and the nature of the weapons
concerned,
justified the trial court in
/35
35
holding that accused 10 possessed the weapons with the intent set out in s
54( 1) (a) to (d) of the Act, and that he was guilty of
a contravention of s
54(1)(ii) and (iii) of the Act.
Different considerations apply as far as the
second pointing out is concerned. The circumstances of that pointing out,
although indicative
of knowledge of the landmines by accused 10, are less
susceptible of an inference of possession by him. Mr Schonfeldt, for the State,
fairly (and in my view correctly) conceded that unless it were established that
the trunk, when found in accused 10's possession
by Moodley, contained traces of
RDX in it, an inference of possesion would not be the only reasonable one. I do
not propose to analyse
the evidence relevant to this issue. Suffice it to say
that such evidence is inconclusive on the question of when (and how) the
/36
36
traces of RDX in the trunk first found their way there. The reasonable
possibility that the trunk only became contaminated with RDX
after accused 10's
arrest cannot be excluded. In the result no inference of possession should have
been drawn against accused 10
as a consequence of the second pointing out. This
does not affect the verdict of guilty, as the inferences drawn from the first
pointing
out suffice to render accused 10 guilty as charged.
Accused 10 did not note an appeal against his sentence of 8 years
imprisonment. He was, however, sentenced on the basis of having
been in
possession of the weapons discovered in consequence of the first pointing out,
as well as the two landmines discovered at
KwaGijima. The conclusion that he was
not proved to have been in possession of the latter must needs have an
ameliorating effect
on his sentence. Mr
/37
37
Schonfeldt conceded that we were entitled, in the circumstances, to interfere
with the sentence. An appropriate sentence will be one
of 6 years'
imprisonment.
In the result the following order is
made:
1.
The appeal of the first appellant (accused 5) is
dismissed.
2.
The appeal of the second
appellant (accused 10) against his conviction is dismissed, but his sentence is
altered to one of 6 year's
imprisonment.
J W
SMALBERGER JUDGE OF APPEAL
STEYN, JA )
PREISS, AJA ) CONCUR