About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1993
>>
[1993] ZASCA 94
|
|
S v Morgan and Others (644/91) [1993] ZASCA 94; [1993] 4 All SA 697 (A) (2 June 1993)
SAFLII Note:
Certain personal/private details of parties or witnesses have
been redacted from this document in compliance with the law and
SAFLII
Policy
Case No
644/91
IN
THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the
matter between:
JOHN
MORGAN
First
Appellant
XOLISWA
FALATI
Second
Appellant
NOMZAMO
WINIFRED MANDELA
.
Third
Appellant
and
THE
STATE
Respondent
CORAM
:
CORBETT, CJ, BOTHA, SMALBERGER, MILNE et
EKSTEEN, JJA.
DATES
OF HEARING
: 24, 25 and 26 March 1993
DATE OF
JUDGMENT
: 2 June 1993
JUDGMENT
CORBETT
CJ/
2
CORBETT
CJ:
Introductory
The
three appellants were charged before the
Witwatersrand
Local Division with four counts of kid
napping
(counts 1 to 4 inclusive) and four counts of
assault
with intent to do grievous bodily harm (counts 5
to
8 inclusive). They all pleaded not guilty to all
charges.
After a lengthy trial, which commenced,
effectively,
on 11 February 1991 and concluded on 14 May
1991,
the trial Judge (Stegmann J) found the first appel
lant
guilty on the four counts of kidnapping, but not
guilty
on the assault charges; the second appellant
guilty
on both the kidnapping and the assault charges;
and
the third appellant guilty on the kidnapping charges and guilty as an
accessory after the fact on the assault
charges.
The learned trial Judge sentenced the appel
lants as
follows:
3
First
Appellant: In respect of the four counts of
kidnapping
taken together, one year's
imprisonment,
suspended for five
years
on certain conditions.
Second
Appellant: In respect of the kidnapping counts,
taken
together, four years' imprison
ment;
and in respect of the assault counts, taken together, two years'
imprisonment; i e an effective
sentence
of six years' imprisonment.
Third
Appellant: In respect of the kidnapping counts,
taken
together, five years' imprison
ment;
and in respect of the assault counts, taken together, one year's
imprisonment; i e also an effective
sentence
of six years' imprisonment.
With the
leave of the trial Judge the appel-
4
lants
appeal to this Court against their respective con
victions
and against the severity of the sentences
severally imposed on
them.
The
Indictment
The
appellants were originally charged together
with
five other persons. Four of these, who included
one
K.C. (about whom more anon) and all of
whom
were out on bail, failed to appear at the trial.
Their
bail was cancelled and the Court authorized the
issue
of warrants for their arrest. A separation of
trials
was ordered and the prosecution proceeded against
the
appellants and a fourth person, Nompumelelo Falati,
the
daughter of the second appellant. In the case of the
last-mentioned
person an application for her discharge at
the
end of the State case succeeded and a verdict of not
guilty
on all eight counts was entered. Where appro
priate,
I shall refer to the original accused, apart from
5
the
appellants, as "the other persons".
The
alleged victims in both the kidnapping and
the
assault charges were Kenneth Kgase ("Kgase"), then about 29
years old, Barend Thabiso Mono ("Mono"), then
about
19, G.P.M. ("M."), then about 20,
and
J.M.S.Se. ("Se."), then about
14.
(Although Seipei was murdered shortly after the
kidnapping
I shall for convenience refer to all four
victims
as "the complainants".) In the Court a quo the gist of the
State case against the appellants was that
(i)
on 29 December 1988 and in pursuance of a common purpose (to which
they and the other persons and one
Jerry
Richardson were party) they took the complainants
against
their will from the Methodist Church manse, in Orlando West, where
they were living at the time, to a
house
referred to as 585 Diepkloof Extension, the
residence
of third appellant ("no 585"); (ii) there held
them
against their will and deprived them of their
6
liberty
of movement, in the case of Se., until he was
taken
away and murdered on about 1 January 1989, in the
case
of Kgase until 7 January 1989, and in the case of
Mono
and Mekwe until 16 January 1989; and (iii) at no
585
and on 29 December 1988 assaulted the complainants
with
intent to inflict grievous bodily harm. As regards
the
kidnapping, it was alleged that first and second
appellants,
the other persons and Jerry Richardson were
part
of a group that fetched the complainants from the
manse and
took them to no 585. The third appellant
was
not alleged to have been part of this group, but was
said to
have been party to the common purpose. As
regards
the assault charges, it was alleged that the
complainants
were assaulted by a group of persons which
included
the second and third appellants, the other per
sons
and Richardson. The first appellant was a member
of
this group, but it was conceded that he did not
actively
take part in the assault. In further particu-
7
lars
to the indictment it was specifically alleged that third appellant
took part in the assault by punching or
slapping
the complainants and by hitting them with a
sjambok.
Some
Background Facts
The
manse from which the kidnapping is alleged
to
have taken place is situated in Moema Street, Orlando
West,
next door to the Methodist church. It is a modest
dwelling
comprising a large living-room, three bedrooms,
a study, a
bathroom and a kitchen. At the material
times
the incumbent minister was the Rev Paul Verryn.
On
the initiative, it seems, of the Rev Verryn the manse
provided
accommodation, sometimes of a merely temporary
nature,
for a considerable number of young men (whose ages ranged from 12 to
29) from different parts of the
country.
This was in implementation of a programme
8
initiated
by the Witwatersrand Council of Churches for
providing
sanctuary for young people who for various
reasons
were homeless. According to second appellant,
and
her evidence in this regard seems to have been
accepted
by the trial Judge, when she came to live at the
manse
in November 1988 the number of persons staying there on a regular
basis was 23, but that at times
temporary
sojourners caused the number to swell to about
35.
These figures point to gross overcrowding in the
house.
The three bedrooms appear to have provided
sleeping
accommodation for six or eight of the residents
and
the remainder found what resting-place they could in
the
living-room and, on occasion, in the study. Those
sleeping
in the bedrooms shared the three available beds.
According
to evidence given by second appel
lant,
which is not in dispute, the Rev. Verryn, who
during
the week worked at the offices of the Methodist
Church
in Pritchard Street, Johannesburg, would normally
9
leave
the manse at between 07h30 and 08h00 and would not
return
until midnight or after. He was accordingly not
in
a position to supervise and maintain discipline at the
manse.
After she came to live there second appellant,
who
at the time was 35 years old, took these responsi
bilities
upon herself and saw to it that the residents
kept
the house clean, took turns at cooking, etc and
observed a
code of behaviour.
Third
appellant's residence, no 585, is em
attractive-looking
modern dwelling. The house itself
comprises
three bedrooms, a study, a dining-room, two rooms used as
sitting-rooms, a kitchen and a bathroom.
Attached
to the house is a double garage. To the rear
of
the house are two detached rooms, or outbuildings.
The
one was designed as a change-room for a Jacuzzi bath
situated
in the patio behind the house (I shall call this
"the
change-room"); and the other consists of a bedroom
with
lavatory attached ("the outside bedroom"). Against
10
one
of the walls of the outside bedroom is a tap, which
assumed
some importance in the case. During the
relevant
period the three bedrooms in the house were
occupied
respectively by third appellant, her daughter
Zinzi Mandela,
and a Mrs Gogo Mabuza. According to
third
appellant, and this evidence is not really in
dispute,
some 16 or 17 youths, mostly refugees or fugi
tives,
occupied the two outside rooms. They constituted
a
floating population, the composition of which varied
from
time to time, but the numbers remained fairly con
stant.
Amongst them was one S.B.M., the
son
of Mrs Gogo Mabuza. He was then 17 years of age.
He
was one of the persons who failed to appear at the
trial.
At
this point it is pertinent to make mention
of
the so-called Mandela United Soccer Club. According
to
the third appellant, prior to taking up residence at
no 585,
she had lived in a house in Vilakazi Street,
11
Orlando
West. There were three rooms at the back of this
house.
Third appellant permitted youths, "refugees from
one
thing or another", to occupy these rooms. She pro
vided
them with food. As a result of a suggestion by
third
appellant that they "formalize their games" the
aforementioned soccer
club was formed and Jerry Richard
son
was appointed as its coach. Distinctive track-suits
were
acquired for the team. Some, but not all, of the
members
of the team lived at the back of the third appel
lant's
house. In August 1988 third appellant's house in
Orlando
West was attacked and burnt down. It was then
that
she acquired and moved to no 585. At that stage the
soccer
club was defunct. The youths who came to live at
the
back of her new residence included one or two of the original soccer
players. In addition, towards the end of
November
1988 Jerry Richardson also came to stay there,
with
third appellant's permission, because his own house
had been
damaged "during a shoot-out".
12
The
State Case
The
State case was founded mainly on the evi
dence
of two of the complainants, Kgase and Mono. The
third
surviving complainant, M., was also to have
been
called as a State witness, but at the commencement
of
the trial the prosecution announced that he had dis
appeared,
the allegation being that he had been kidnapped
the night
before. Nothing further was heard of him during the course of the
trial.
Reduced
to its essentials, Kgase's evidence-in-
chief
was to the following effect. He went to live at
the
manse, at the Rev Verryn's invitation, on 3 November
1988.
After his arrival there second appellant and her daughter also moved
in; as also did Mono, M. and Se.. Another resident at
the time was
the afore
mentioned
K.C. ("K."). On the evening
of
Thursday, 29 December 1988 Kgase was sitting in the
13
living-room
at the manse, playing cards with three
others.
All of a sudden a man dressed in an army over
coat
(later identified by the name of "Slash" and also
known
as "Sledge") stormed into the room and ordered them
to
stand up and to go to the kitchen. They obeyed.
There
Kgase found a "well-built, middle-aged man" (later
identified as Jerry
Richardson), the second appellant,
her
daughter, C., and a number of strange men
(whom
he later identified by such names as Spokes, Scar,
Black
Sunday, Moss, Desmond, Isaac and Jabu). The house
was
searched and the residents rounded up. One Sello
who
tried to slip away was caught and slapped by Slash.
Mono,
M. and Se. were separated from the rest and
someone
said that they had to be taken away. As they
were
leaving Slash said "What about Kenny?" (referring to
Kgase); and second
appellant replied that he was "quite
clever" and
"might make some investigations". Slash
then
put his hand on Kgase's shoulder and ordered him to
14
come
along. He (the witness) complied but did not go
willingly.
He did not know where they were supposed to be going; nor did he ask.
At one stage Richardson said that they would be
brought back "sooner
or later". The
complainants
and their abductors went out of the house,
through
a hole in the back fence and walked for about two
blocks
to where a bus was parked. It is common cause
that
this bus, which is larger than a combi but smaller
than
the normal bus used for public transport, belonged
to
the third appellant. They all entered the bus and were driven to no
585. The driver of the bus was the
first
appellant. On the way there someone started sing
ing
and the complainants were ordered by Richardson to
join
in. Richardson also ordered them to sit separately.
Kgase
stated that at this stage he felt very nervous and
scared.
At
no 585 they were taken to the change-room.
There
they were given some food. Richardson told them
15
that
"they" were going to speak to them. In a private
conversation with the
witness Richardson told him that
they
had information that the Rev Verryn was interfering
sexually
with the young men staying at the manse and
asked
him about this. Kgase told him that he did once
share
a bed with Verryn and that after everyone was awake
he
found that the Rev Verryn was "tickling" him all over
his
body, but that there was nothing improper in this.
After
eating the complainants were ordered to hand over
their
watches. To Kgase it was then obvious that they
were going to
be beaten up.
Some
time thereafter third appellant came into
the
room. She looked displeased. She kept quiet for a
while
and then said that the complainants were "not fit
to
be alive" and ordered them to stand up and identify
themselves.
At the invitation of third appellant,
second
appellant then spoke and made various allegations
against
the complainants: in Kgase's case, mainly, that
16
he
was "protecting" the Rev Verryn, had reacted with
indifference when she
told him shortly before that K.
had
been "raped" by Verryn and had told her that he had
"gay"
friends and that it was normal for other people to
be
gay; in Se.'s case, that he was a police informer
and
a "sell-out"; and in the case of Mono and M.,
that
they had sexual relationships with the Rev Verryn.
The
complainants denied these allegations.
Then
all of a sudden, according to Kgase, the
third
appellant grabbed him by the hair and started punching him, one blow
landing below his left eye. She
then
punched the other complainants in turn, demanding that they tell the
truth about the allegations against
them.
This continued for some time and then there was
what
the witness described as "pandemonium" with Jerry
Richardson and others,
including K., joining in the
assaulting
of the complainants. It stopped for a while,
during
which time the third appellant hummed a tune and
17
danced
to its rhythm. She then produced a s jambok and
assaulted
the complainants by hitting them with this.
Others
joined in and the complainants were sjambokked, punched, kicked and
lifted and dropped to the floor. At
a
certain stage, while the assaults were still taking
place,
third appellant disappeared from the scene. As a
result
of the assaults Kgase felt humiliated and "just
terrible".
He was in great pain; there were a "lot of
wounds"
and a"lot of blood". His left eye was bloodshot
and
the eye-socket discoloured and swollen.
Thereafter
the complainants were ordered by
Richardson
to wash and then to make their beds with
blankets
provided in the change-room. Two people slept
with
them in the room. At that stage Se.'s condition
was bad. He
did not talk. The following day
Richardson
told them about "the rules of the house" and
warned
them about trying to run away. He said the posi
tion
of Kgase, Mono and M. was different from that of
18
Se.,
who had done something that was "very, very
wrong"
and who would eventually have to be "dumped"
(meaning
that he "had not long to live"). They were
also
instructed to wash away blood-stains from the walls
of the
room and elsewhere.
Kgase
further deposed to an incident which took
place
the following night (Friday 30 December 1988) when
Se.
was assaulted by a stranger in the presence of Richardson and as a
result of what Richardson told the stranger about Se.. The
next day
Kgase noticed that
Se.
had a lump on his head. On Sunday 1 January 1989
Se.
was taken away by Richardson. That was the last
that the
witness saw of him.
On
about 3 January 1989 the three remaining
complainants
were taken out by Richardson and others on
the
pretence that they were going to play soccer. In
the
end it turned out to be an expedition to capture and
murder
a man known as Ikaneng. After a search Ikaneng
19
was
located and apprehended. He subsequently evaded his
captors
and ran away, but was recaptured. He was taken
to
an open piece of land, where he was stabbed by
Richardson
and another with the blades of a pair of
garden
shears. He was left for dead in a small, ravine,
but
in fact survived the attack. Acting on orders from
Richardson,
Kgase helped to throw Ikaneng into this
ravine.
He stated in evidence that he was "devastated"
by
this episode.
On
Wednesday, 4 January 1989 the funeral of a
Mr
Mabuse, father of a well-known local musician, took
place.
Kgase and the other two complainants were told
by
Richardson that they had to attend the funeral and for
the
occasion wear track-suits of the Mandela United Soc
cer
Club, which were kept in the garage. Others from
the
house also wore such track-suits. They were driven
to
the funeral in the same bus that brought them to no
585 on the
evening of 29 December 1989. The bus was
20
again
driven by the first appellant. Third appellant
travelled
on the bus between the church and the grave
yard.
Kgase sang at the graveyard and helped to fill the
grave.
He did not attend the funeral willingly.
On
the next day Kgase and his fellow complain
ants
and two others were taken in third appellant's mini-
bus
to Richardson's house. Richardson and third appel-
lant
went with them and first appellant drove the mini-. bus. On arrival
there they were told to clean up out-
side
the house. Richardson worked with them, but after having a look
around third appellant went off in the mini-bus with first
appellant.
The latter later came to
fetch them.
On
the morning of 7 January 1989 at 04h00 Kgase
was
told to stand on guard to protect the house, together
with
one Isaac. Kgase took the opportunity that morning
to
escape from the house and run away. He took a taxi
to
the Central Methodist Church in Pritchard Street and
21
eventually
made contact with the Rev Verryn. He told
him
his story. He was then taken to a doctor, Dr Martin
Connell,
who examined him; and after that to see a lawyer.
To
complete this sequence of events, I might
add
that on 6 January 1989, the day before Kgase's
escape,
Se.'s dead body was found on an open piece of
land
in Soweto, about 4,8 kms from the third appellant's
residence.
Subsequently, in May 1990, Richardson stood
trial
in the_Witwatersrand Local Division on the charges
of
having kidnapped and assaulted the complainants, of
having
murdered Se. and of having attempted to murder
Ikaneng.
He was found guilty and sentenced in August
1990.
Kgase
was comprehensively cross-examined by
counsel
for the appellants. During the course of this
he
was revealed as a very unreliable witness. Between
the
time of his escape from no 585 and the time when he
22
gave
evidence in the Court a quo Kgase had, in relation
to
these events, given a number of interviews to the
Press
(which had resulted in published articles), had
written
an article for the English newspaper, the Sunday
Telegraph,
had deposed to an affidavit taken by his
attorney
and had given two witness's statements (one
originally
taken by his attorney) to the police. He had also given evidence in
the Richardson trial. Dr Connell
also
gave evidence of certain statements made to him by
Kgase at
the time of his medical examination. This
trail
of previous statements made Kgase particularly
vulnerable;
or, to put it another way, they provided
abundant
material by which to test the accuracy of his
evidence before
the Court a quo. Numerous contra
dictions
between his evidence and his previous statements
were
pointed out to him in cross-examination; in most
instances he
admitted that one or the other was inaccurate or untrue or simply
stated that he had no
23
answer
to the question. During the course of his cross-
examination
senior counsel for the prosecution, Mr
Swanepoel
SC, very properly made available to the defence
the
witness's statements made by him. Furthermore, in
re-examination,
Mr
Swanepoel
drew attention to the fact
that
whereas Kgase had stated in evidence that he had not received any
payment for the Sunday Telegraph article, he
had
told counsel for the prosecution in consultation that
he
had in fact been paid. He was then asked what the
correct
position was; and he admitted that he had been paid. This was
confirmed by Mr Peter Taylor, a defence
witness.
The
trial Judge made the following findings in
regard to Kgase's
evidence:
"Kenneth
Kgase was particularly thoroughly
discredited. Inter alia, he
departed from his statements.
By the end
of the trial it was quite clear
24
that
I could not possibly rely on any
proposition
by Kgase that was disputed by
any
other witness, unless it was specifi
cally
and reliably corroborated by other
dependable
evidence. Kgase, like every
other
witness, swore to tell the truth,
the
whole truth and nothing but the truth.
In
Kgase's case it remains possible that
his
evidence included the truth, and per
haps
even the whole truth, but what became
clear
beyond all question was that the
truth
alone was not nearly good enough for
him..
He added in a great deal that was
certainly
not the truth. The result has
been
that it is an impossible task to sort
out
his fabrications from his true state
ments.
With such a witness I find myself hesitant to place much reliance cm
even those of his statements which were not
specifically
controverted by any other witness, save where there is appropriate
corroboration."
The
other main State witness. Mono, also proved
to
be "a broken reed at best". His account of circum-
25
stances
at the manse, of the happenings on the evening of
29
December 1988, of the subsequent assaults to which
Se.
was subjected, of Se. being taken away on Sun
day
1 January 1989, of the Ikaneng episode, of the Mabuza
funeral
and of working at Richardson's house is in broad
conformity
with that given by Kgase in his evidence-in-
chief.
The trial Judge, nevertheless, made the follow
ing
findings as to his credibility:
"Thabiso
Mono was unreliable for
entirely different reasons. Whereas
Kgase's main vice was false
embroidery of
the truth,
Thabiso Mono's main shortcoming
was
suppression of aspects of the truth
which
must have been known to him and
which
he declined to disclose by claiming
repeatedly,
in ever less credible circum
stances,
that he could not remember. His
reluctance
to state aspects of the truth
that
must have been known to him, together
with
other more specific criticisms that
were
rightly made of his evidence, was
such
that I suspect his selective memory
26
of
producing misleading half-truths which
are
really no better than downright un
truths. In his case,
too, I consider
that I cannot
safely rely on any of his
propositions
which were controverted by
another
witness except only for such of
his
propositions as are supported by
appropriate corroboration."
In
his evidence Mono further described Kgase's
disappearance
on the morning of Saturday, 7 January 1989.
He
and M., however, remained at no 585. Richardson
told
them that should one of them leave, the other would
be
in danger. On a certain day (from the evidence it
seems
probable that this was 13 January 1989) Mr Attorney
Ismail
Ayob, the legal representative of the Mandela
family,
came to no 585 and saw the third appellant. Mono
and
M. were called to the main house by Richardson,
who
identified them to Mr Ayob. On another day there
was
also a visit by Mr Attorney Krish Naidoo. Richard
son
told him and M. to come to the house to speak to
27
Mr
Naidoo, but enjoined them to say nothing about the
assaults
and to tell Mr Naidoo that the reason why they
left
the manse was because "Paul used to sleep with us".
For
fear of Richardson they did as they were told. Mr Ayob came on a
second occasion (probably on 15 January
1989).
He spoke to second appellant and Richardson and told them that he had
come to fetch Mono and M..
Second
appellant and Richardson initially refused to
permit
them to go. Later they did take them to Mr Ayob,
but
eventually brought them back to no 585. On Monday 16
January
1989 Richardson took them to a Dr Nthato
Motlana,
who in turn took them to the offices of Mr
Naidoo.
Mr Naidoo telephoned Bishop Peter Storey, who
that
evening took them to a meeting in Soweto. At this
meeting
some 70 people were present and Mono told them
what had
happened to him, including the assaults.
M.
did likewise. On Wednesday, 18 January 1989 Mono
and
M. were taken to Dr Connell and examined by him.
28
Dr
Connell was called as a State witness and he provided very important
corroboration for certain aspects
of
the evidence of Kgase and Mono. At the same time he
deposed
to certain statements made to him by these
witnesses
which, it may be suggested, was at variance
with
their evidence before the Court a quo. Dr Connell
confirmed
that he medically examined Kgase on 7 January
1989 and Mono
and M. on 18 January 1989. In the
case
of Kgase he found 9 "tramtrack" injuries on the
back,
6 on the right arm and 4 on the left shoulder and arm. In a number of
instances the skin had been broken
and
there had been bleeding. A tramtrack injury is one
made
by a flexible linear object and, in the doctor' s
opinion,
the injuries could have been caused by blows
with a sjambok.
He also found a subconjunctival
haemorrhage
of the right eye (it seems likely that in
fact
it was the left eye), with peri-orbital haematoma, a
laceration
below the lower lip and swelling and bruising
29
of
the right side of the face. On Kgase's back he found
an
extensive haematoma, with lesser bruises over the left
hip
and left side of the chest. His findings were
consistent
with the injuries having been caused by an
assault on 29
December 1988.
In the
case of Mono, Dr Connell found 14 healing tramtrack abrasions
characterized by "new
slightly
pinkish scar tissue" and a circular healing scar
on
the left wrist, also with slightly pink scar tissue.
In
the case of M. he again found tramtrack abrasions,
six
in number; recently healed abrasions on the right
shoulder,
midback and left thigh; an almost healed
laceration
on the forehead and recently healed scars on
the
left hand and left arm. In both cases the appearance of the
injuries noted was consistent with their
having
been inflicted on 29 December 1988.
Dr
Connell stated in evidence that at the time
of
the medical examination Kgase told him, inter alia,
30
and
with reference to the assaults which caused his injuries, that third
appellant struck him on the face
with
her hand: he did not tell the doctor that the third
appellant
had struck him with a sjambok or with her fist.
Dr
Connell also testified that in Mono's case the latter
told
him that he had been assaulted by members of the
football
team; he did not say, however, that third
appellant had
assaulted him in any way.
The
remaining witnesses called by the State in
presenting
the case for the prosecution (I ignore for the
moment
certain evidence led in the attempted rebuttal of
third
appellant's alibi) were Dr Klepp, who performed the
autopsy
on the body of Se., Bishop Storey, Captain
Dempsey
of the South African Police, the investigating
officer,
and Major Claassens, a forensic expert.
When
the autopsy was performed by Dr Klepp
Seipei's
body was in an advanced stage of decomposition,
which to some
extent hindered the examination. The
31
doctor
found, inter alia, three penetrating incised
wounds
of the neck; a fractured left clavicle; exten
sive
contusion of the subcutaneous tissues of the lower
back,
buttocks, left thigh and right calf; and extensive
contusion
of the scalp. The cause of death was given as
"penetrating
incised wounds of neck, subcutaneous con
tusions".
The injuries to the head could have caused
swelling.
Bishop
Storey is the bishop of the south
western
district of the Transvaal of the Methodist Church
of
South Africa. In his evidence he dealt, inter alia,
with
the position of the Rev Verryn in the Church, the
situation
at the manse in Orlando West and the rumours of
alleged
sexual misconduct at the manse. I shall con-
sider
some of this evidence later in the context of the
issue
of alleged sexual misconduct involving the Rev
Verryn.
In addition, Bishop Storey stated that on 9
January
1989 it was reported to him that the complainants
32
had
been kidnapped from the manse on 29 December 1988.
Between
9 January and 16 January 1989, when Mono and
M.
were freed, Bishop Storey was active in seeking to
secure
their release. He had numerous discussions with the Rev Verryn, with
community leaders such as the Rev
Frank
Chikane and Dr Motlana, and with a body known as
the
"crisis committee"; and at one stage he took legal
advice
with a view to a habeas corpus application. Eventually on 16 January
1989 Mono and M. were re
leased
to him by Richardson at the offices of Mr Naidoo.
He
took them to a community meeting which was held that
evening
in Dobsonville at the instance of the crisis
committee.
At this meeting Mono and M. related what
had
happened to them. Neither second nor third appellant
attended
the meeting. I should here explain that the
crisis
committee was a body, consisting of community
leaders,
which was formed in order to deal with the
crisis
created by the destruction of third appellant's
33
home in
Vilakazi Street.
In
his evidence Captain Dempsey stated that he
had
been appointed investigating officer on 9 February
1989
as a result of media reports concerning the dis
appearance
of Se. and the kidnapping of the complain
ants.
He eventually traced the surviving complainants
and
took statements from them on 17 February 1989. Two
days
later he was part of a team of policemen which went
to
investigate and search the premises at no 585. A
number
of objects were seized and these were later pro
duced
in Court as exhibits. They included a sjambok and
a
stick ("kierie"), found under a mattress in the change
room; another sjambok,
found in the garage, and two
blankets and odd items of
clothing.
Captain
Claassens was also a member of the
investigating
team on 19 February 1989. He took from
the
premises objects and specimens which were later
scientifically
analysed. For present purposes his most
34
important
findings were: the presence of primatial blood
on
the walls and curtains of the change-room and the
outside
bedroom, and the presence on the two blankets
seized
of primatial blood which was of the same blood-
grouping
as a sample of blood taken from M..
This
medical and forensic evidence, and the finding of the two sjamboks on
the premises provided
irrefutable
corroboration of the evidence of Kgase and
Mono
to the effect that they were assaulted in the
outside
rooms at no 585 and that, inter alia, sjamboks were used in the
assaults. Moreover, it is not in dis
pute
that they were so assaulted shortly after being
fetched
from the manse on the evening of 29 December 1988
and
that Richardson and other members of the group,
loosely
described as "the football team", participated in
the
assaults. One of the big issues, however, is what
role,
if any, the three appellants played in this connec
tion.
35
As
far as first appellant is concerned, an
important
piece of prosecution evidence in the case
against
him was a written statement which he made and
subscribed
before Lieut-Col Oosthuizen of the South
African
Police on 22 February 1989 (exh "AA"). The
admissibility
of this statement was contested by the
defence
on the ground that the first appellant had been
coerced
by assaults and torture to make it. After
concluding
a trial-within-a-trial the Judge a quo ruled
the
statement to be admissible. This finding is not
challenged on
appeal. Of course, the statement is evidence only against first
appellant.
In
his statement first appellant said that he
was
employed by third appellant as her driver, but did
not
sleep at no 585. On a day in December 1988 Richard-
son
instructed him, in third appellant's presence, to
convey
Richardson, second appellant, Sledge and another
to
the Methodist Church in Orlando West. He did so and
36
remained
with the bus while the others went into the
manse.
After a short while they returned to the bus
accompanied by
Se. and three others. Everyone
entered
the bus and they returned to no 585. He then
described
how he was present while the complainants were
interrogated
and while three of them were assaulted in
turn
by Richardson and other persons present. He left
before
they turned their attention to the fourth victim.
He
said that he could no longer stand it. He stated that
third
appellant was present during part of the time when
the
interrogation and assaults took place and that she herself
interrogated and assaulted Se., who was the
second
person to be so treated. After that she left.
The
Defence Case
I
turn now to the defence case, as presented by
each
of the appellants; and I shall thereafter indicate
briefly
how the trial Judge dealt with each defence.
37
The
first appellant closed his case without
leading
or giving evidence. His general contention was that the State
evidence, including his statement to Lieut-Col Oosthuizen,
was not
sufficient to secure his
conviction
on either the kidnapping or the assault
charges.
The
second defendant gave evidence in her
defence.
In chief she stated that in 1987 she was doing
social
welfare work at the offices of the Anglican Church
in
Johannesburg. Through this work she met the third
appellant
and also the Rev Verryn. As a result of her house in Springs having
been "bombed" she and her 18-
year-old
daughter, Nompumelelo, were taken in at the
Methodist
manse in Orlando West by the Rev Verryn. In
her
evidence second appellant described conditions at the manse when she
arrived there at the beginning of November 1988 - the dirtiness
of
the place, the state of disorgan
ization,
the lack of discipline and the overcrowding -
38
and the
steps taken by her to try to rectify the
situation.
Prior to her moving to the manse she heard
from
the Rev Verryn himself that there were rumours in
circulation
to the effect that he (the Rev Verryn) was
misconducting
himself with young boys at the manse. She
described
how on one occasion after she had taken up
residence
in the manse Se. complained to her that Mono
and
M. and an unnamed third boy had made sexual
advances to him in
bed at night.
She
also described an episode involving K..
He
was then 20 years of age and a recent arrival at the
manse.
Because he was "a raw Zulu from Natal" the
others
laughed at him and he felt isolated and unhappy.
Second
appellant reported this to the Rev Verryn who
invited
him to share his (Verryn's) bed. This was two
days
before Christmas. The next day second appellant
found
K. in great distress. She could not discover
what
the problem was. She took him to Verryn, who made
39
him
a present of some shirts. The Rev Verryn went away
for
five days, returned briefly on 28 December 1988 and
then
went away again. K. was still in a distressed
and
emotional state of mind and was continuously saying
that he
would "kill a person". On 29 December 1988
second
appellant eventually discovered what was troubling
K..
He told her, with a certain amount of graphic
detail,
how while he was sleeping in the Rev Verryn's bed
the
latter attempted on three occasions to "rape" him.
Second
appellant was shocked and amazed. She consulted
Kgase who
appeared unsurprised. He said that this
happened
"to all of us here". He was not shocked because
he
was "used to it". -She also spoke to another resident
at
the manse, Aubrey Nxumalo (who figured as a defence
witness),
whose reaction was broadly the same.
Second
appellant decided to consult third
appellant
about this problem because the latter was a
social
worker and a community leader. During the after-
40
noon
of 29 December 1988 she found third appellant at no
585
and informed her about the position at the manse.
Third
appellant's reaction was to exclaim "Is the
reverend
still doing this thing?". Third appellant then explained to
second appellant that she was aware of a previous incident
with a
young boy aged 13-14. At third
appellant's
suggestion second appellant went to fetch
K. and brought him
to third appellant. He was confused and crying. Third appellant then
suggested
that they should take
him to Dr Asfat, third appellant's
personal
doctor. This was done. After examining K. Dr Asfat advised that they
should come back after 10 or
15
days so that he could arrange for K., as well as the Rev Verryn, to
see a psychiatrist. He said that
K.
was mentally disturbed and the Rev Verryn needed
treatment
because of what he was doing.
They
returned to no 585. Second appellant watched a video. She then went
to the outside toilet
41
because
the one inside the house was not functioning
properly.
There she ran into Richardson and she told him
about
K. and the Rev Verryn. They discussed the
matter
and she told him about "three others who do it
right
there" and about the incident involving Se..
She
then suggested to Richardson that "these kids" should
be
"taken away" from the manse and brought to no 585,
where
they would be kept by him until the return of the
Rev
Verryn and the problem of "sexual activities" had
been
solved. Richardson said that he would talk to "the
other
boys". Second appellant went back into the house
to
tell third appellant of her suggestion, but found that
she
had left the house. She and Richardson - then agreed
that
the children should be fetched, that the bus would
be
used for this purpose and that first appellant (who
happened
to be at no 585) would drive the bus.
The
expedition which then set off in the bus
consisted
of second appellant, Richardson, Slash, Moss,
42
K.
and the driver, first appellant. The bus stopped
in
a street which was not the street in which the manse
was
situated and they walked from there to the manse.
On
arrival at the manse second appellant called everyone
to
the kitchen and there she requested Kgase, Mono,
M.
and Se. to accompany her to the "leader' s
house"
and said that there was a problem which they were
going
to solve. They agreed and accompanied her back to
the bus. No
one was manhandled or assaulted. In the
bus
second appellant explained that they were going to
try
to solve "this Father Paul Verryn issue". On the
return
journey there was singing in the bus. At no 585 they went to the back
room and sat down. Second appel
lant
explained the reason why they had been brought there
and
requested Richardson to "keep" them, as third appel
lant
was away. She said that she would come back once
third
appellant returned. She then left them in the
back
room with Richardson. She went into the house and
43
for
a while sat and watched a video with her daughter.
The
two of them then returned to the manse. While she
was
at no 585 she did not see anyone assault the
complainants.
The only thing that happened was that
while
second appellant was explaining to Richardson about
"the
Paul Verryn issue", Kgase laughed and Richardson
grabbed
him by the shoulder and pulled him forward.
On
30 December 1988 second appellant returned
to
no 585, looking for third appellant, but failed to
find
her. She went to the back rooms and found that all
the
complainants were busy cleaning the windows. She
noticed
that Kgase's right eye was red and swollen. A
report
was made to her by one Sibonelo as a result of which she, on the
following day (31 December 1988),
admonished
Richardson not to assault "these children".
Later
that day (i e 31 December 1988) third appellant
arrived
back at no 585 from Brandfort (as the witness
later
discovered). After greeting her second appellant
44
apologised
to third appellant for having brought the
complainants
to her house, but explained that some of
them
were "the children who were being abused" and others
were
practising homosexuality amongst themselves. At
this
point Kgase was in the vicinity. Second appellant
pointed
out his red eye and told third appellant that she
had
been informed that he had been assaulted by Richard
son.
She further said to third appellant that "the
issue
of Father Verryn" had to be attended to and solved
and
that she (second appellant) had requested Richardson
to
keep the complainants at the house pending the Rev
Verryn's
return. Third appellant did not say much in
response
to these disclosures; she merely asked where
Richardson
was. Second appellant told her how she had
scolded
Richardson for what he had done. Eventually she
left.
At that
stage second appellant had left the manse and was living with a
cousin in Pimville. From
45
time
to time she returned to the manse looking for the
Rev
Verryn, but without success. On 13 January 1989 she
went
back to no 585. On arrival she was informed that
Kgase
and Se. had "left". In the house she found
third
appellant, who was not well. Among those present was Mr Ayob. At
third appellants request second appel
lant
explained to Mr Ayob what had happened at the manse
"with
the children" and how she had asked that they be
kept
at no 585. Mr Ayob told her to come back the next
day
and that he would arrange for the "ministers" and Dr
Asfat
to be present. She returned the next day (14
January
1989), but neither Mr Ayob nor the ministers nor
Dr
Asfat turned up. Dr Motlana did, however, arrive in the afternoon.
Second appellant gathered from him that the ministers had
been
meeting at his house, which was
just round the corner from no
585.
On
the following day (15 January 1989) second
appellant
was called to no 585. There she found Mr Ayob.
46
He
informed second appellant and Richardson that he was
going
to take the "children" (meaning Mono, M. and K.) away and
asked them whether they would accept
this. They refused to do
so. Second appellant took
the
children to Pimville, but later returned them to no
585. From
there they went to Mr Ayob's flat in
Braamfontein
where she further discussed the matter with
Mr
Ayob, stressed the misconduct of the Rev Verryn and accused him and
others of trying "to sweep this issue
beneath the
carpet". Eventually the children were
returned
to no 585 into the custody of Richardson. She
denied
ever having kidnapped or assaulted the complain
ants
or to having conspired with first or third appel
lants to
do so.
Second
appellant was cross-examined extensively
and
at length by counsel for the State. This cross-
examination
made very considerable impact upon her
credibility
and partly resulted in the adverse findings
47
thereon
by the trial Judge to which I will later refer.
During
cross-examination second appellant elaborated on
the
reasons why the complainants were taken away from the
manse
and kept at no 585. She contemplated a form of
enquiry
by the ministers of the Methodist Church and she
wished
the complainants to be available as witnesses in
that
enquiry and, in the interim, not to be subject to
the
influence of the Rev Verryn.
Three
other aspects of her evidence under
cross-examination
merit mention at this stage. Firstly,
it will be recalled that
she visited no 585 on 30
December
1988 and found the complainants at the back of
the
house cleaning windows. She was questioned about
this
visit by counsel for the State. She stated that apart from Kgase's
injured eye there appeared to be
nothing
wrong with the complainants. She did not speak
to
Kgase about his injury because she did not want to do
so
in the absence of Richardson and could not find the
48
latter
on the premises. Initially she stated - or at
any
rate conveyed - that she did not speak to Mono,
M.
and Se.; later she alleged that she asked them
whether they
were well and they replied in the
affirmative.
Secondly, she repeated under cross-
examination
by counsel for the State what she had said in
examination-in-chief
about what she reported to third appellant immediately after the
latter's return from
Brandfort
on 31 December 1988. During his cross-
examination
of her counsel for third appellant touched
upon
this topic, but did not in any way challenge the
correctness
of her evidence in this regard. And,
thirdly,
in answer to questions by counsel for the State,
she
said that on the way back to no 585, after having
taken
K. to see Dr Asfat on 29 December 1988, she did
not
tell third appellant what she had found out about
Kgase
and the other three. The reason she gave: "the
worry was
K.".
49
Third
appellant gave evidence and six other
witnesses
were called on her behalf. In essence her
defence
was an alibi. She stated in evidence-in-chief that in May 1977 she
was "exiled" to Brandfort in the
Orange
Free State and placed under house arrest. There
she
remained for nearly nine years. Nevertheless, while
there
she did form a number of friendships, one of her
friends
being a Mrs Nora Moahloli, a teacher at the local
school.
She also initiated and developed a number of
social
projects, including a mealie meal project, a soup
project, a
creche, which developed into a day-care centre, a sewing club, a
clinic and a scholarship
project.
Her banning order- forbade attendance at
gatherings
and consequently she used other persons to act
as
her representative in attending meetings of these organizations. Of
particular assistance to her in this
connection
was Mrs Moahloli. Towards the end of 1986 she
returned
to Johannesburg and lived in the Vilakazi Street
50
house
in Orlando West until the incident in August 1988
when it was
destroyed by fire.
Third
appellant had an office in Orlando East
where
she dealt with community problems referred to her
by
individuals and interviewed people who wished to see
her.
She had a secretary and "various employees". She
first
met the second appellant in about 1988 when the
latter
came to the office seeking assistance in regard to
accommodation
and her daughter's education. First
appellant
had been a neighbour in Vilakazi Street and she
had
known him for many years. Although not formally
employed
by her, first appellant did act as her driver
whenever
requested to do so. He drove a bus which had
been
donated to third appellant early in December 1988
and
was acquired for the purpose of conveying children to
school.
Third
appellant affirmed that she was a member
of
the Methodist Church, which had assisted with one of
51
her
projects in Brandfort. She had heard of the Rev
Verryn,
but did not know him personally. She knew of
the
programme for assisting refugees at the manse in
Orlando
West. In June 1987 a 13-year-old boy came to
see
her at her home in Vilakazi Street. (This boy later
gave
evidence and to protect him from general identifica
tion
he was referred to in the Court a quo as "youth
X".)
Youth
X
was at the time
staying at the manse and he
reported
to third appellant that he had been sexually
abused
by the Rev Verryn while sharing the latter's bed.
He
was emotionally disturbed. She provided youth
X
with
accommodation
at the back of her house; and she reported
the
matter to the Rev Frank Chikane, the general secre
tary
of the South African Council of Churches, which
organization
financed the programme for assisting refu
gees
at the manse and employed the Rev Verryn. The Rev
Chikane
appeared to be sceptical of the allegation, but
promised to
take it up. She left the matter in his
52
hands. She
herself took no further steps. Youth
X
stayed
at her house until the end of 1987, but did not
return
in 1988. In September of that year he came to
see
third appellant again. He told her that he had
returned
to the manse early in 1988 and that he had again
been
sexually abused by the Rev Verryn. Third appellant
again
reported the matter to the Rev Chikane. This time
he
was not as sceptical as he had been the previous year;
and
he indicated that he was in possession of other
similar
reports. He indicated that he was going to
refer
the matter to Bishop Storey. He subsequently
indicated
that the Church had advised the Rev Verryn to
adopt
certain -corrective measures. Youth
X
was again
provided
with accommodation at no 585.
On
25 November 1988 third appellant went to Brandfort to attend the
funeral of one Teacher Menega.
She
spent the night of the 25th at the home of Mrs
Moahloli and
attended the funeral on the 26th. Mrs
53
Moahloli
reported to her on the. projects which she had
helped
to establish in Brandfort during her period of
exile
there. From this report it appeared that several
of
them had "died off". Third appellant was concerned
to
hear this and she discussed with Mrs Moahloli the
possibility
of reviving them. To this end it was decided
to
have a meeting in Brandfort on the afternoon of 30
December
1988. Third appellant arranged to travel to
Brandfort
on 29 December 1988 and to return home on 31
December 1988.
On
the afternoon of 29 December 1988 second
appellant
came to see her at no 585 and reported that one
youngster
staying at the manse had told her that he had
been
"raped" by the Rev Verryn. Third appellant was
shocked
and exclaimed: "Is the Rev Verryn still doing
that?".
She asked second appellant to bring the
youngster
to her, which she did. He turned out to be
K..
Third appellant then proceeded to describe the
54
visit
to Dr Asfat, as already recounted. The reason for
the
delay in making arrangements for a psychiatrist to see K. was the
absence of most doctors on holiday
during the festive season.
After
their return to no 585 she made prepara
tions
to leave for Brandfort. She had planned to reach
Brandfort
between 19h00 and 20h00 in order to have dinner
with
Mrs Moahloli, with whom she was staying. It was a
drive
of 3½ to 4 hours. In the end, as a result of the K. affair,
she set off only at between 18h30 and 19h00. She was driven
in her
kombi by one Thabo Motau
(who also gave evidence). She arrived
there after 22h00.
For
reasons which will later emerge, I do not
propose
to narrate in any detail what happened on the
visit to
Brandfort. Suffice it to say that on the
morning
of Friday, 30 December 1988 she visited certain
persons
whom she had been assisting and in the afternoon
55
attended
the meeting. During the morning of Saturday,
31
December 1988 she made a few visits in connection with
the
scholarship project. Thereafter she, driven again
by
Motau, returned to Johannesburg, arriving home at
between
18h30 and 19h00.
At
no 585 she found second appellant, who
greeted her. There were
others present. Second
appellant
made the following report to her (to quote
third appellant's
own words):
"She
said something like she was sorry she
had
brought some children there and she
hoped that I would not
mind."
According
to third appellant, she could not recall second
appellant
mentioning anything about anyone's eye being
injured.
In reply to a question by her counsel specifi
cally
directing her attention to this matter, third
appellant
replied:
"No,
what I recall is her apologising for
56
having
brought some children in my absence
and
that was what was really uppermost to
her,
and I was in fact, I was very tired,
I
was arriving and the fact that she had
to
give me this report on my arrival,
right at the entrance I
really just
listened to the
apology she was making and
did
not attach any significance to any-
thing else
she said."
She did
not see anyone with an injured eye.
Generally,
in regard to the rooms at the back
of
the house, third appellant testified that she exer
cised
no control over them. She did not visit them or
look
to the needs of those sleeping there. She did not have to do any
housework, even in her own part of the house. She was aware
of the
fact that the young people
living
at the back of the house guarded the premises.
After
her return from Brandfort no one reported that
anyone
had been assaulted at the back of her house; and she had no reason to
believe that anyone was being kept
57
there
against his will.
She
attended the Mabuse funeral and saw the
group
from the back of the house dressed in the football club track-suits.
She did not know whether they included
any
of those brought to no 585 on 29 December 1988 by
second
appellant. She did not notice any injuries to
members
of this group. They danced and sang at the
funeral.
In
the second week of January 1989 (probably
about
the 9th) third appellant was visited at her home by
members
of the crisis committee. They told- her that
there
were allegations being made that she had kidnapped
"certain
children" from the Methodist manse in Orlando
West
and was keeping them at her house against their
will;
and also that these children had been badly
assaulted. They
further suggested that one had
"escaped".
Third appellant stated that her reaction to these allegations was
that she was "outraged" and
58
"furious";
and she denied that she knew anything about
this.
She asked who was making the allegations, but the
crisis
committee said that they could not disclose the
sources
of their information. This made her "more
infuriated".
She told the crisis committee that if the allegations had reference
to the children who had been
brought
to no 585 by second appellant, they (the members
of
the crisis committee) were free to go to the back
rooms
and speak to them directly; or to take them to a
venue
of their choice. That day the crisis committee
did
not avail themselves of this invitation. Third
appellant
herself decided after this meeting not to speak
to
the people at the back of the house. She explained:
"
I was so outraged at such false and
serious
allegations that I told the crisis
committee
that in the light of what they
had
alleged, I would have no contact whatsoever with them, and that they
were
free to have access
to those children so
59
that
they should not charge us as having
influenced
them, because of the serious
ness of the allegations."
After
this she kept away from the back of the house.
She
did, however, speak to Richardson, told him of the
allegations
and asked him what had happened. Richardson
replied
that when the children first came there were
"clappings
or slappings" (by him) when he was questioning
them. She
"pulled him up" for this. She did not ask
him
whether the children had been kidnapped. She had no
reason
to believe that force had been used to take the
children
away from the manse. She also tried to speak
to
her attorney, Mr Ismail Ayob, but he was away abroad.
Shortly
after the visit of the crisis commit
tee,
Dr Motlana, a family friend, one of the family
doctors
and a neighbour at the time, also came to see
her.
He told her that he was concerned about rumours to
the
effect that she had kidnapped four youths from the
60
Methodist
manse, that one (the youngest of the four) had disappeared and that
another had escaped. In reply she
told
him of the visit of the crisis committee and what her attitude to
them had been; and that she had decided
not
to have anything to do with these youths. She told
Dr
Motlana that he was free to go to see them at the back
of
her house. She also told him about the four youths
brought
to the house by second appellant and handed over
to
Richardson. She explained that she was going to have
nothing
to do with the youths, since if she went to see
them
it might be suggested ,that she was trying to
influence
them. She mentioned that she had been to the
Mabuse
funeral and seen no serious injuries on any one of
the boys.
On
13 January 1989 Mr Ayob came to see her.
She
was unwell at the time. Mr Ayob raised the question
of
the same rumours and said that he understood that a
habeas
corpus application was to be brought against her
61
to
produce the four complainants. She told him of the
visits
of the crisis committee and Dr Motlana and what
her
decision had been. She told him, too, that he was
free
to confirm that second appellant had brought the
children
to no 585 and that they were in the care of
Richardson; and
that she had decided not to have
anything
to do with them. By chance second appellant
then
arrived at the house and third appellant told Mr Ayob that he could
take up with her (second appellant)
the whole question as to
what happened. Acting on
advice,
third appellant instructed Mr Ayob to see to it
that
the remaining boys at the back of the house were
removed.
She subsequently heard that they had left.
Third
appellant was also comprehensively cross-
examined
by counsel for the State and on the whole fared
badly.
In her case, too, the trial Judge made adverse
credibility
findings to which I will later allude.
Two of the
six witnesses called on third appel-
62
lant's
behalf, Motau and Mrs Moahloli, were concerned
only with
the alibi defence; two, Mr Taylor and Miss
Devereau,
were journalists who had interviewed Kgase;
and two,
Aubrey Nxumalo and youth
X,
dealt mainly
with
the Rev
Verryn's alleged sexual malpractices at the
manse. It
is not necessary to review the evidence of
these
witnesses in any detail. There are, however,
three
points which should be mentioned. Firstly,
Nxumalo
deposed to having been present on the evening of
29
December 1988 when the complainants were taken away.
He was
residing at the manse at the time. He was
summoned
to the kitchen by a stranger. There he found
second
appellant and a number of strange people. Second
appellant
addressed those assembled in the kitchen and
"....
said she is going to take some of
the people amongst us."
She
then mentioned the names of the four complainants and
told
them to follow her. They would be taken
63
"somewhere".
She said that they would not "be long".
Later,
after her return to the manse, second appellant
told him
that the complainants had been taken to third
appellant's
"place" and that they would be back "as soon
as
possible". Secondly, youth
X
deposed
to the two
visits
which he made to third appellant in 1987 and 1988,
to the
reports he made to her on those occasions and to
his having
stayed at third appellant's home during part
of 1987.
This has been narrated in reviewing the
evidence
of the third appellant. Thirdly, the trial
Judge was
not impressed by either of these witnesses.
With
regard to Nxumalo's evidence as to the removal of
the
complainants from the manse on 29 December 1988 he
remarked:
"His
evidence .... was remarkably laconic.
I
gained the impression that he was not
prepared
to reveal all that he knew about
it."
64
As to
youth
X,
the learned Judge stated:
"Both
by reason of what he said, and by reason of his demeanour in the
witness-
box, I formed the
impression that youth
X
had been prevailed
upon to allow himself
to
be used as a puppet in these proceed
ings,
and that he was not trustworthy as a
witness to the truth."
Essential
Findings of the Trial Judge
I
come now to the findings of the trial Judge.
In
brief, he held that it had been established beyond a
reasonable
doubt that the four complainants were taken
from
the manse to no 585 against their will and that they
accompanied
second appellant because they realised that
resistance
would be unavailing; that at no 585 and on
the
evening of 29 December 1988 the complainants were
severely
assaulted by being hit with sjamboks, by being
kicked
and by being lifted and dropped on the floor; and
that
the complainants were kept at no 585 against their
65
will:
Se. until about 1 January 1989, when he was taken away and murdered;
Kgase until 7 January 1989,
when
he escaped; and Mono and M. until they were
released on 16
January 1989. The four counts of
kidnapping
and the four counts of assault with intent to
commit
grievous bodily harm were accordingly held to have
been
proved.
As
to the participation of the appellants in
these crimes, the
trial judge made the following findings:-
(1)
That at some stage during the afternoon of 29
December
1988 a number of persons, including
the
three appellants and Richardson, conspired
together
to mount an operation in terms of
which
first appellant was to drive second
appellant,
Richardson, Slash and Moss in third
appellant's
bus to the manse at the Methodist
Church in Orlando West,
there to seize such
66
youths
as second appellant might indicate and
to
bring them back to no 585, whether they were
willing
to come or not, and to hold them as
captives
in the back rooms at no 585.
That
it had not been established that this
conspiracy
contemplated from the outset severe
assaults on the youths.
That
it was reasonably possibly true that third
appellant
left no 585 for Brandfort between
18h30
and 19h00 on 29 December 1988, i e shortly before the
conspiracy to kidnap was put into
execution,
so that she was away when it was
carried out.
That
between 19h00 and 20h00 on 29 December
1988
first and second appellants, Richardson
and
others went to the manse and, as planned,
kidnapped
the complainants and brought them to
no 585.
67
That,
acting outside the scope of the afore
mentioned
conspiracy, second appellant,
Richardson
and others then assaulted the complainants with a degree of severity
that
established their
intent to do grievous bodily
harm.
That
third appellant returned from Brandfort to
no
585 at about 18h30 to 19h00 on 31 December
1988; and that by
1 January 1989, at the
latest,
third appellant had knowledge of the
serious
assaults on the complainants and of the
fact
that Richardson and others living on her
premises
were the culprits, or at any rate she
was
by then "being diligent in preserving her
ignorance".
That, in either event, by
continuing
to hold the complainants and by
continuing to give
accommodation to the culprits responsible for the assaults, she
68
"assisted
the culprits in a manner which showed
that
she associated herself" with the assaults
committed
by them; and that third appellant
was
accordingly guilty as an accessory after
the
fact to the assaults referred to in counts
5 to 8 inclusive.
(7) That first appellant was responsible for depriving the four
complainants of their
freedom
whilst driving them from the manse to
no
585 and whilst observing their interrogation
and
the assaults on them later that evening.
And
that second and third appellants were
responsible
for depriving Se. of his freedom
from
29 December 1988 to 1 January 1989; of
depriving
Kgase of his freedom from 29 December
1988
to 7 January 1989; and of depriving Mono
and
M. of their freedom from 29 December
1988 to 16 January 1989.
69
I
shall deal seriatim with the appeals of the three appellants against
their convictions. There are,
however,
certain findings by the Court a quo which are of
fundamental
importance in the case against each of them
and
which should first be considered. They relate to
(a)
the findings on the credibility of second and third
appellants
as witnesses; (b) whether the complainants were removed from the
manse and kept at no 585 against
their
will, i e whether there was a kidnapping; (c) what the motive for the
kidnapping was; and (d) third apppel-
lant's alibi.
The
Credibility Findings
Comments
and findings adverse to the credi
bility
of second and third appellants are scattered
throughout
the judgment of the Court a quo. I do not
propose to quote
them all. In essence he held that second appellant was an unreliable
witness given to
70
advancing
improbable propositions; that her evidence
showed
signs of "hasty and dishonest improvisation";
that
she was quick-witted, plausible, "a clever resource
ful
and therefore particularly dangerous liar"; that she
was
garrulous to the last degree; that particular
evidence
given by her was a "piece of brazen dishonesty";
that
she was vindictive towards the Rev Verryn; that in
certain
instances she lied in her evidence; and that she (and third
appellant) were "not unfamiliar with intrigue
nor above
dissimulation".
In
third appellant's case, the trial Judge
found
that parts of her evidence were disturbingly vague,
equivocal
and evasive; that she at times testified with
"wariness",
an "unwillingness to commit herself" and with
"a
remarkable absence of candour"; that awkward questions
often
elicited the meaningless reply "not necessarily";
that
in one instance she conceded some part of the truth;
that
her evidence was in some respects contradictory;
71
and
that one item was "patently false", another "brazenly
untruthful". As to
third appellant's demeanour in the
witness-box,
the trial Judge had the following to say:
"Mrs
Mandela is not of a shy or
retiring
nature. She is a mature woman,
evidently
experienced in the ways of the
world, and very much in command
of
herself. Throughout the
period of nearly five days that she spent in the witness-box she
maintained her dignity and self-possession.
She answered questions
with very little, if any hesitation and her answers were deliberate
and carefully
formulated,
though quite frequently
equivocal
or argumentative or otherwise
evasive.
She kept a pleasant expression
on
her face throughout, and generally
maintained
a reasonable tone of voice.
She
did not allow the expression on her
face,
or the tone of her voice, or any
body
language, to betray her feelings
about
the matter to which she testified.
She was in fact
poker-faced".
And in the
end he said that the -
72
"
conclusions which I set out
earlier
in
this judgment were in various instances
based
on my assessment of Mrs Mandela's
credibility
as a witness. That assess
ment
took into account the many untruths
that
have been brought home to her. She
showed
herself on a number of occasions
to
be a calm, composed, deliberate and
unblushing liar."
These
assessments are expressed in very strong
language
indeed. The trial Judge had the great advan
tage
over this Court of having seen second and third appellants, for
considerable periods of time, in the
witness
box. Accordingly his impressions of demeanour
and
his findings thereon are of considerable significance
and must
be respected. His findings based upon
inference
from the circumstances or the probabilities are
however,
matters of reasoning not solely dependent cm
seeing
and hearing the witnesses and this Court may for
73
good
reason differ therefrom.
Having
carefully read and analysed the recorded
evidence,
I think that there is much substance in the
learned
Judge's general strictures upon the evidence of these two witnesses.
I would not necessarily use exact
ly
the same language to express my criticisms; nor would
I
necessarily endorse every factual finding by the trial
judge
adverse to their credibility (as this judgment will
show).
But that both these witnesses were on occasion
evasive
, untruthful, contradictory and capable of
dishonest
improvisation is, to my mind, beyond question.
Instances
of this will emerge from my more detailed treatment of the evidence.
Neither can, therefore, be
regarded as a truthful, reliable
witness.
The
Kidnapping
It
is not in dispute that the complainants were
taken
from the manse to no 585 and that second appellant
74
played
a leading role in this operation. The essential
question
is whether the complainants went willingly or under duress. The trial
Judge, having observed that all the witnesses to
this event had been
unsatisfactory,
concluded:
"Nevertheless,
the circumstances which
preceded
Miss Falati's excursion from Mrs
Mandela's
house to fetch Kgase, Mono,
M. and Stompie; the state of mind
with which she set off; the fact
that she
took with her at
least Jerry Richardson,
Moss
and Slash; the fact that the bus did
not
approach the front entrance of the manse openly; the fact that she
did not
disclose to the
four where she wanted to
take
them or what problem she wanted to
solve;
and the fact that she either gave them a false assurance that they
would return, or failed to tell them that they
would
not return, are all circumstances
which,
taken together, serve to convince
me
beyond any doubt that Miss Falati
intended
to take them whether they agreed
or not; and that the manner
and the
75
circumstances
of her arrival, and her
request
to the four to accompany her, had
proclaimed
to them (as she had intended
that
it should) that she would disregard
any
refusal and would exercise forcible
compulsion
if necessary. These circum
stances
constitute corroboration which
makes
it easy for me to accept, as I do,
that
Kgase and Mono both spoke the truth when they said that they had
accompanied
Miss Falati
against their will and because
they
realised that resistance would be
unavailing.
Whatever other untruthful
embroidery
they may have added, the
fundamental
fact that they were taken
against
their will is unquestionably the
truth."
This
finding was attacked on appeal, particularly by counsel for
second appellant. I do not propose
to
recount all the arguments advanced by counsel. I have considered them
carefully, but I remain unpersuaded that the trial Judge's
conclusion
and, for the most part, his
reasoning on this issue was
incorrect. To the extent
76
that
second appellant's state of mind embraces the motive
for
the kidnapping, I do not agree with the findings of
the
trial Judge, for the reasons to be stated when I deal
with
that aspect of the matter. But otherwise his
reasoning
appears to me to be unanswerable. I consider,
too,
that although assaulting the complainants was right
ly
excluded from the conspiracy which the trial Judge
found,
the treatment meted out to the complainants after
their
arrival at no 585 is indicative of the frame of
mind
in which second appellant, Richardson and the others
set
off upon this expedition and lends support to the
inference
that they intended to remove the complainants
from
the manse nolens volens. Moreover, in all the
circumstances
it seems extremely unlikely that the complainants would have
willingly agreed to a "request"
to accompany this
militant group at night to an
undisclosed
destination, for an undisclosed purpose and
for
an undisclosed period of time. Second appellant's
77
denial
that the complainants were removed from the manse
against
their will must be weighed in the light of the
aforegoing
factors and her merits as a witness, as
evaluated above.
As
I have indicated, the trial Judge found that the detention of the
complainants at no 585 endured until
they,
in their respective ways left those premises. It was argued, inter
alia, that the complainants stayed
willingly
and that this was demonstrated by their
attendance
at the Mabuse funeral and their behaviour
there
and by the fact that they had ample opportunity to
escape.
I do not think that there is any substance in
these
arguments. I cannot imagine that after the very severe beatings to
which they had been subjected the
complainants
would have wished to stay at no 585 under
the
menacing supervision of Richardson. Moreover, Kgase
did
escape and immediately went to complain about what
had
happened to him. The others did not, but this
78
should
not be attributed to a willingness to remain. It
seems
probable that after Kgase's escape the remaining
two
were subjected to increased surveillance and there
appears
to be no reason to reject Mono's evidence that
Richardson
threatened that if one of them left the other
would be "in
danger".
For
these reasons I hold that the trial Judge's
findings
as to a kidnapping having taken place and as to
the duration
thereof cannot be faulted.
The
Motive for the Kidnapping
According
to second appellant the mainspring
for
the removal of the complainants from the manse was
the
belief, based upon various reports, that the Rev
Verryn
sexually abused young boys staying there and that
homosexuality
was being practised there by other inmates
as well. Much of
the cross-examination of State
witnesses
and some of the evidence led by the defence was
79
directed
at establishing the correctness of this belief.
In a sense the
Rev Verryn was put on trial. As the
trial
Judge correctly pointed out, however, he was not
called
upon to decide the guilt or innocence of the Rev
Verryn
in regard to the various allegations made against
him:
all that was relevant in the case which he had to
try
was whether the second appellant, or the third appel
lant,
bona fide believed that the Rev Verryn had com-
mitted the
acts of which he was accused. Subsequently in
his
judgment the learned trial Judge posed the relevant
issue in
somewhat different terms, viz, whether the
appellants
".... had credible grounds for believing that
Mr Verryn
had done so". In so far as the credibility of
the
grounds for believing is relevant to the question
whether
the belief was in
fact
held, this statement is
unexceptionable;
but it must be borne in mind that the
real issue
is not whether the appellants had credible
grounds
for their belief, but whether they in truth
80
harboured
the belief.
Having
analysed the evidence, the trial Judge
came
to the conclusion (as expressed in the findings at
the
end of his judgment) that second and third appellants
did
not have any honest belief in the allegations of
sexual
misconduct levelled against the Rev Verryn, but
that
they both identified themselves with a rumour
campaign
one of the objects of which was to oust the Rev
Verryn,
for other reasons, from his position as the
resident
minister of the Methodist Church in Orlando
West.
It is of importance to see how the learned Judge
developed
the finding of this "alternative motive".
Initially
he put it forward as a "hypothesis"
in
order to test the veracity of the "high-minded motive"
put
forward by second and third appellants. He did so
partly,
it would seem, on the strength of other cases in
his
personal experience where ministers had been unseated
for
ulterior, undisclosed reasons; and because in the
81
present
case it was -
".
.. . by no means impossible that the
campaign
to discredit Mr Verryn is a smoke
screen
emitted in an attempt to disguise
and
conceal the true motives for the
campaign
and the true responsibility for
both
the kidnapping and assaults .... and
the
death of Stompie (Se.)".
Having
considered the evidence of Bishop Storey concerning the rumours about
the Rev Verryn being
involved in
homosexual conduct (to be referred to
shortly), the learned
Judge stated that -
" it
is realistic to postulate the
existence
in Orlando West of an ambitious person or group, as yet unidentified,
who
were faced with a
dilemma. On the one
hand,
their manse was being misused, and
they
wanted to see Mr Verryn and his
houseful
of refugees replaced with a
minister
who would live at the manse and
minister
to the needs of the congregation
on
a full-time basis. On the other hand,
82
they
could not openly criticise Mr Verryn
and
the use to which he was putting the
manse,
because to have done so would
obviously
have given offence to powerful
people
in the S A Council of Churches and
to
those who supported its programme to which Mr Verryn had for the time
being
dedicated the
manse. Such a person or
group,
if it existed, might be expected to
pursue
its ends by secret and devious
means.
It might, for example, promote a
malicious
campaign of false rumours aimed
at
discrediting and dislodging Mr Verryn
from
the manse, and also aimed at ensuring
that
the manse would at the same time be
cleared
of the riff-raff which Mr Verryn
had
allowed to accumulate within it.
I
must make it clear that I do not
suggest
that the validity of this hypothe
sis has been proved. It
certainly has
not. Nevertheless
I intend to keep it in
mind when evaluating the high-minded
motive claimed by the defence
for Miss
Falati and Mrs
Mandela, simply for the
purpose
of assisting me to determine
whether
there is not room for some such
alternative
motive which would explain the
83
facts as
well as, or better than, the
motive
claimed by the defence."
Although
the trial Judge here makes it clear
that
this hypothesis had not been proved, at the end of
his
judgment, as I have indicated above, it figures as
one of his
findings.
In
the course of his evidence Bishop Storey
stated
that in October 1988 the Rev Verryn, an ordained
minister
of the Methodist Church in charge of the church
at
Orlando West, approached him and told him that there
were
rumours circulating that there was "some kind of misconduct"
in the manse. No one else came forward at
the
time with such or similar information. They dis
cussed
the matter. It transpired that the Rev Verryn
had
also reported the rumours to the Rev Frank Chikane,
had
discussed them with him and had been given some
advice.
Recognising that the Rev Verryn, as a single
84
person,
was "vulnerable", Bishop Storey advised him,
firstly,
to make his bedroom a "no-go area"; and,
secondly,
to involve leaders in his congregation in the
management
of the young people at the manse. In mid-
November
1988 Bishop Storey spoke to the Rev Verryn and
was
told that there had been a "considerable change"
because
second appellant and her daughter had come to
stay there. The
Rev Verryn said he felt "more comfortable" and he seemed
"very happy".
Bishop
Storey further described the community
meeting
which took place at a Catholic church in
Dobsonville
on the night of 16 January 1989. At this
meeting
the Rev Verryn was confronted about the allega
tions of
sexual misconduct. He responded, and the
meeting
unanimously expressed confidence in him. Subse
quently
the Church investigated the allegations by means
of
a pastoral commission. The commission came to the
conclusion
that they were unfounded.
85
The
true motive for the kidnapping is not
directly
relevant to the guilt or innocence of the
appellants. Clearly
the motive put forward by the
defence
would not in law justify the forcible removal and
detention of
the complainants. Nevertheless it is
relevant
to the question of the credibility of witnesses
and
it could also have a bearing on the gravity of the offence. Moreover
a careful reading of the judgment of
the
Court a quo shows that this finding as to the alter
native
"true" motive for the kidnapping permeates much of
its
reasoning. It is, accordingly, necessary to examine
the
correctness of this finding.
The
first point to be noted is that, as the
judgment
candidly concedes, there is no evidence whatever
to
substantiate the existence of this alternative motive
or
to identify the "ambitious person or group" which
promoted
the "campaign of false rumours aimed at dis
crediting
and dislodging Mr Verryn from the manse".
86
Secondly,
this alternative motive was never part of the
State
case in the Court below. This is common cause.
Thirdly,
the possible existence of this alternative
motive
was never put by the learned trial Judge to any of
the
relevant witnesses, including second and third appel
lants.
It would seem to have been a theory evolved by
the trial Judge
at some later stage. Fourthly, the
theory
appears to have been founded, to some extent at
any
rate, on the learned Judge's personal experience in
certain
totally unrelated matters: with respect, an
impermissible
approach. And, fifthly, I am not able to
agree
that the evidence established that second and third
appellants
had no bona fide belief in the allegations of
sexual
abuse on the part of the Rev Verryn. This last
point requires
elaboration.
Taking
the events chronologically, the evidence
relevant
in this regard commences with that of third
appellant
in regard to the visits of youth
X
in 1987 and
87
1988
and the confirmation thereof by youth
X
in the
course
of his testimony. It is true that youth
X
proved
to
be an unsatisfactory witness, mainly because of the
inconsistencies
in his evidence as to the months of the
year
during which he visited third appellant and the fact
that
he described having visited third appellant and having stayed with
her at no 585 in 1987, which was an
impossibility.
The corrections to his evidence which he
made
after a luncheon adjournment also did not redound to
his
creditworthiness.
I have
already quoted the trial Judge's
recorded
impression of youth
X
as a witness. In
the
findings summarized
at the end of his judgment the
following paragraph appears:
"3.
Youth
X
testified before
me. He was
an untruthful
witness. The circum
stances
surrounding his lies, and Mrs
Mandela's
unsatisfactory evidence of
her
own handling of the matter,
88
satisfied
me that Mrs Mandela cannot
have had, and did not have, any
honest belief in the allegations
made
by youth
X
against Mr
Verryn."
I
infer from this that the trial Court's finding was not
that
the visits and reports by youth
X
never took place,
but that third appellant
did not at the time believe in
the
truth of these reports. This finding appears to be based on the
"circumstances surrounding his lies" and
third
appellant's "unsatisfactory evidence of her own
handling
of the matter". The "lies" referred to were
those
which youth
X
was said to have
told in the course
of his
evidence. There is no suggestion that when youth
X
made reports to
third appellant any such mendacity was,
or
should have been, apparent to her. Indeed the main
criticisms
of the evidence of youth
X,
viz his
incon
sistency about
the dates, his evidence of visiting third appellant and staying with
her at no 585 in 1987 and the
89
post-adjournment
corrections of this evidence, are of necessity matters which could
not have been apparent to
third
appellant in 1987 and 1988. Accordingly, the
proposition
that because youth
X
proved himself to
be an
"untrustworthy"
witness in Court in these respects, third
appellant
should not have believed him, and did not
believe
him, when he reported to her in 1987 and 1988, is
a
manifest non sequitur. Another criticism levelled
against
the evidence of both third appellant and youth
X
by the trial Judge
is that their respective versions at
the
trial of what was reported by youth
X
in regard to
sexual abuse on the
occasion of his first visit did not
tally.
And here I might interpolate to point out that
their
versions of what was reported on the second occa
sion
did tally. I do not think that great importance
should
be attached to the inconsistency in their evidence
as
to what was reported on the first occasion. Obviously
one of
them was wrong about this; and there are many
90
possible
explanations for the error. Whichever is the correct version, this
does not appear to me to have any
bearing
on the question as to whether or not third appel
lant
should have believed or did believe whatever report
was in
fact made.
Third
appellant's evidence of her response to
these
reports to her by youth
X,
viz her approaches
to
the Rev Frank Chikane,
appears to have been accepted by
the
trial Judge, for in para 2 of his summarized findings
he
states that third appellant "identified herself" with
the
rumour campaign against the Rev Verryn -
".
. . . in terms of her evidence that she
had
received a report about Mr Verryn from
(youth
X)
and
had passed it on to the Rev
F Chikane."
I
agree with the acceptance of this evidence. I can
hardly
think that third appellant could have been so
brazen
as to fabricate this evidence, knowing that it
91
could be
refuted by the Rev Chikane himself.
The
trial Judge's finding that third appellant's "unsatisfactory
evidence of her own handling of
the
matter" was indicative of a lack of an honest belief
in
the allegations by youth
X
does not, however,
appear
to me to be
well-founded. The very facts that on each
occasion
she reported the matter to the Rev Chikane and arranged for youth
X
to come to live at
no 585 indicate
to me
that she believed at least that there might well be
substance
in the allegations. On the first occasion the
Rev
Chikane' s scepticism may have sown a doubt in her
mind,
but his reaction on the second occasion, as already
detailed,
would have tended to strengthen her belief in
the
truth of the allegations. It is true that, accord
ing
to Bishop Storey, the Rev Chikane did not speak to
him
about the allegations by youth
X,
but this is not
sufficient ground for rejecting third appellant's
evidence
as to the Rev Chikane's reaction on the second
92
occasion.
The third appellant was criticized by the
trial
Judge for not having done more, such as, for
instance,
reporting the matter to Bishop Storey on the
first
occasion. Bearing in mind the reaction of the Rev
Chikane
on that occasion, I do not think that any adverse
inference
can be drawn from her admitted failure then to
report the
matter to Bishop Storey.
Second
appellant was not in any way privy to
the
disclosures made by youth
X.
She did, however,
depose to various reports
made to her while she was
staying
at the manse which indicated sexual abuse by the
Rev
Verryn and homosexuality being practised by certain
persons
living at the manse. It is true that one of her
informants,
Kgase, denied having said what she attributed
to him, but even
he deposed to an incident (the
"tickling"
episode) while sharing a bed with the Rev
Verryn
which smacks of a sexual advance. The most
significant
factor, as far as second appellant's state of
93
mind
was concerned, was clearly the K. episode. The
evidence
of second and third appellants in regard thereto
has
been outlined. The trial Judge appears to have
accepted
as facts that K. did on 29 December 1988
make
(to second appellant) accusations of homosexual
conduct
against the Rev Verryn; that second appellant
reported this to
third appellant; that K. was
fetched
from the manse; and that together they took
K.
to see Dr Asfat. If the learned trial Judge's
conclusion
is to be upheld, then this expedition was
undertaken
not because second and third appellants had
any
belief in K.'s accusations, but as part of an
elaborate
charade designed, presumably, to give colour to
the
"rumour campaign". I find this far-fetched and
lacking
in substantiation. In this connection it is also
important
to note that in par 12 of his findings the
trial Judge stated:
"After
the consultation with Dr Asfat, Mrs
94
Mandela
and Miss Falati, according to
their
own evidence, had reason to believe
both
that K.C. had imagined
the
homosexual attack by Mr Verryn which
he
had alleged, and that he should be seen
by a psychiatrist."
This
finding evidently refers to third appellant's
evidence
to the effect that Dr Asfat concluded -
"....that
even though the Rev Paul Verryn
may
have made those advances, there was no
penetration
because K. had imagined
that
this is what happened to him and he
was almost hysterical "
Par
12 of the Court's findings appears to suggest that Dr
Asfat
had discounted the possibility of any sexual
misconduct.
This is ill-founded, as the quoted evidence
shows.
This apparent misconception on the part of the
trial
Judge affects his findings on the state of mind of
the
second and third appellants and the question of
motive.
95
I
do not propose to dwell on the evidence of
Nxumalo
at any length. There are significant discrepan
cies
between his evidence and that of second appellant,
but
it does clearly appear from his evidence, for what it
is
worth, that on one occasion he found K. crying and
threatening
to stab someone to death and that later
K.
told him that the Rev Verryn had made sexual
advances to him.
For
these reasons I am of the opinion that it
was
not established that second and third appellants had
no
belief in the allegations of sexual misconduct on the
part
of the Rev Verryn made to them. I am also of the
view
that it is reasonably possible that such a belief
motivated
the kidnapping. I find no support for the
alternative
motive found by the trial Judge.
It
may be asked what the actual object of the
kidnapping
was: what the kidnappers hoped to achieve.
Second
appellant, though obviously not conceding that
96
there
had been a kidnapping, indicated in evidence that
the
complainants were taken from the manse to be kept there until the
return of the Rev Verryn so that they
could
testify against the Rev Verryn in an enquiry by the
Church
into the allegations of sexual abuse against him. Once the
"alternative motive" is discarded there does not seem
to be
any valid ground for rejecting this evidence.
Third
Appellant's Alibi
I
have described, in very broad outline, the
third
appellant's evidence as to her visit to Brandfort,
which,
if accepted, meant that she had an alibi for the
period
± 18h30/19h00 on 29 December 1988 to about the
same
time on 31 December 1988. Without giving full rea
sons the
trial Judge found that it was reasonably
possibly
true that third appellant did go to Brandfort
over
that period and that she left no 585 prior to the
assaults
on the complainants taking place. I think it
necessarily
follows, too, that it is reasonably possible
97
that
third appellant was not present when the kidnapping
expedition
set forth at (as found by the trial Judge)
between 19h00 and
21h00.
The
acceptance by the Court a quo of this
alibi
naturally created a significant breach in the
State
case against third appellant. It added to the
general
unreliability of the State witnesses, who deposed
to
her having taken part in the assaults upon the com
plainants,
and it removed her from the scene at the time
when
the crimes were committed. It did not affect the
verdict
on the kidnapping counts because, as I have
indicated,
the trial Court found that prior to her
departure
for Brandfort third appellant had become party
to
a conspiracy to kidnap the complainants. But it did
affect
the verdict on the assault counts. In effect the third appellant was
acquitted on the charges of being a
co-perpetrator
of these assaults and, on a largely
different set of facts,
was found guilty of being an
98
accessory
after the fact to the assaults.
On
appeal counsel for the State asked this
Court
to reverse the decision of the trial Judge on the
alibi
and to change the convictions on the assault
charges
to ones of guilty as charged. Counsel submit
ted
that this Court was empowered to do so on the
authority
of the case of
S v E
1979 (3) SA 973
(A). In
the
Court's judgment in that case the following statement
appears
(at 977 D-F):
"Hoe
dit ook al sy, meen ek dat waar 'n
Appelhof
oortuig is dat die verhoorhof,
weens
of 'n verkeerde feitebevinding of 'n
regsdwaling,
die appellant skuldig bevind
het
aan 'n minder ernstige misdaad as die
waaraan
hy, ingevolge die akte van
beskuldiging,
skuldig bevind behoort te
gewees
het, die Appelhof die bevoegdheid
het,
kragtens die huidige Strafproseswet, om die skuldigbevinding
dienooreenkomstig
te verander. In so 'n geval het die
Appelhof
ook die bevoegdheid om die
tersaaklike
vonnis tersyde te stel en of
99
om
die saak na die verhoorhof te verwys
vir
die oplegging van 'n gepaste vonnis of
om
self vonnis op te lê. Dit sal van die
omstandighede
afhang watter een van
hierdie
twee keuses in 'n besondere geval
deur
die Hof uitgeoefen sal word."
This
statement was founded on certain previous decisions
of
this Court and on the provisions of
sec 322
of the
Criminal
Procedure Act 51 of 1977
, the relevant portions
of which read:
"(1)
In the case of an appeal against a
conviction
or of any question of law
reserved,
the court of appeal may -
(a)
allow
the appeal if it thinks that
the
judgment of the trial court
should
be set aside on the ground of
a
wrong decision of any question of
law
or that on any ground there was a
failure of justice; or
(b)
give
such judgment as ought to have
been
given at the trial or impose
such
punishment as ought to have been
imposed at the trial; or
(c)
make
such other order as justice may
100
require:
Provided
that, notwithstanding that the
court
of appeal is of opinion that any
point
raised might be decided in favour of
the
accused, no conviction or sentence
shall
be set aside or altered by reason of
any
irregularity or defect in the record or proceedings, unless it
appears to the
court of
appeal that a failure of justice has in fact resulted from such
irregular
ity or defect.
(6)
The powers conferred by this section
upon
the court of appeal in relation to
the
imposition of punishments, shall
include
the power to impose a punishment
more severe than that imposed
by the
court below or to impose
another punish
ment,
excluding the sentence of death, in
lieu
of or in addition to such punish
ment."
The
previous decisions of this Court must be
101
seen
against the background of the pertinent legislative
enactments.
The formula in
sec 322
(1) that the court of
appeal
may, inter alia -
"give
such judgment as ought to have been
given at the trial" -
is one of
long standing. It may be traced back as far,
at least,
as sec 36 of the Better Administration of
Justice
Act 35 of 1896 (Cape) and was incorporated in sec
374(d) of
the Criminal Procedure and Evidence Act 31 of
1917. In
1935, by the General Law Amendment Act 46 of
1935, the
formula was expanded by the addition of the
following:
"....or
impose such punishment (whether
more
or less severe or of a different
nature
than the punishment imposed by the
court
below) as ought to have been imposed
at the trial "
In
1948, however, and in terms of the Criminal Procedure
Amendment
Act 37 of 1948 sec 374 of Act 31 of 1917, as
102
amended,
was reformulated. In the result the formula
was
amended by the omission from sec 374(1)(b) of the
words
in parenthesis; and in sec 374(5) the court of appeal was expressly
prohibited from imposing "any
punishment
more severe than the sentence imposed by the
court
below". This change in the law was criticized by
this
Court in
R v Naicker
1950 (3) SA 721
(A), at 722 A -
C.
Despite this criticism, sec 374 of Act 31 of 1917, in
its
amended form, was re-enacted (with minor non-relevant
differences)
when the Criminal Procedure Act 56 of 1955
was
passed: see sec 369 thereof. In 1963, however, sec
369(5)
was amended so as to empower the court of appeal
to impose -
"
a
punishment more severe than that
imposed
by the court below or another
punishment
in lieu of or in addition to
such punishment."
Sec 322 of
the current Criminal Procedure Act reproduces
103
the
formulae formerly contained in secs 369(1)(b) and
369(5),
save that by sec 13(c) of the Criminal Law
Amendment
Act 107 of 1990 the sentence of death was
expressly
excluded from the other punishment which the
court was
empowered to impose.
Prior
to the enactment of Act 51 of 1977 the
Magistrates'
Courts Act 32 of 1944
contained in sec
98(2)
,
read with
sec 103(4)
, provisions conferring on the
"court
of appeal" (which included the Appellate Division,
see
R v Theunissen
1952 (1) SA 201
(A) ) in criminal
matters
commencing in the magistrate's court the power to give such judgment
or impose such sentence (including the power to increase
the sentence
or impose another sentence
in
lieu or in addition thereto) as the magistrate's court
ought
to have given. In 1977 these powers were incor
porated
in Act 51 of 1977 (see secs 304 and 309).
One
of the cases referred to in the judgment in
5 v E
(supra) was
R v
V
1953 (3) SA 314
(A). In this
104
case
the appellant had been charged in the magistrate's court with, inter
alia, the offence of sodomy (the main
charge) or alternatively
with a statutory offence
relating
to aiding or being party to the commission by
any
male person of any act of gross indecency with another male person.
The magistrate acquitted the
appellant
on the main charge, but convicted and sentenced
him
on the alternative charge. On appeal this Court (a
five-judge
bench presided over by Greenberg ACJ) held
that
the evidence did hot support the conviction on the
statutory
offence and that the magistrate's verdict
should
be set aside. The Court, nevertheless, held
(acceding
to a contention by the prosecution) that the
evidence
did establish at least an attempt by the appel
lant
to commit sodomy and that a verdict to this effect
(on
the main charge) should be substituted. It so held
in
pursuance of the powers conferred by sec 103(4), read
with sec
98(2), of the Magistrate's Courts Act 32 of
105
1944,
which, in addition to the powers referred to above,
also
authorized the court of appeal when quashing a
conviction
on one count to convict the appellant on an
alternative count.
It
was argued by counsel for the appellant in
that
case that it was not competent for the Court to do
this
where the appellant had been acquitted in respect of
the
charge on which the prosecution sought a conviction;
it
could only do so where the magistrate had returned no
verdict
on this charge. Counsel based his argument on
the
contention that it is "a fundamental principle" of
our
law that once an accused person has been acquitted on
a
charge the matter is finally concluded and no court of
appeal
can alter that acquittal to a conviction. On
this
argument Greenberg ACJ (who delivered the judgment
of
the Court) passed the following comment (at p 322 G):
"But
this sacrosanctity of an acquittal
has
been encroached upon by the Legisla-
106
ture;
sec 104 of the Act entitled the
Court
of appeal to reverse a decision on a
point
of law which has resulted in an
acquittal
by a magistrate, and sec 103(4)
provides
that on an appeal on facts, the
Court
of appeal may increase the sentence
which,
apart from special legislation, had enjoyed the same security, in
regard to an
increase as
an acquittal. The reason
advanced
therefore affords no ground for
not
giving the passage in regard to alter
natives
their plain meaning and this
meaning
does not justify the distinction
contended for."
This
"fundamental principle" was recently
adverted
to by this Court in the case of
Magmoed
v Janse
van
Rensburq and Others
[1992] ZASCA 208
;
1993 (1) SA 777
(A), at 815 J -816 J. in the passage from the
judgment referred to a
dictum
of Solomon JA in
R v
Gasa and Another
1916
AD 241
,
at 246, is
quoted. This dictum includes an allusion to -
"....
the long-established practice that
107
an
acquittal by a competent Court in a
criminal
case is final and conclusive, and that it cannot be questioned in any
subse
quent proceeding."
In
Gasa
's
case (supra) this Court presumed that this practice would have been
present to the mind of the
Legislature
when it enacted sec 1 of Act 1 of 1911 and on
this
basis interpreted the enactment restrictively. This general approach
was endorsed by this Court in
Magmoed
's
case with reference to
the interpretation to be placed on
sec 319
of the
Criminal Procedure
Act 51 of 1977
.
Just
as it was held in
R v
V
(supra) that this
practice, or principle,
relating to acquittal had been
encroached
upon by the Legislature when it enacted secs
103(4)
and
98
(2) of the
Magistrates' Courts Act, so
also
must
it be acknowledged that a similar encroachment
results
from the provisions of
sec 322
of Act 51 of 1977.
However,
in determining the extent of the powers of the
108
court
of appeal under sec 322, the background presence of
this
principle must be borne in mind. It is true that
in
the technical sense the Court a quo did not acquit the
third
appellant on any of the charges preferred against
her;
but the Court's verdict in respect of the assault
charges
(based on an acceptance of her alibi) did, as I
have
said, amount in effect to an acquittal on the
charges
as formulated in the indictment and to the return
of
competent (but lesser) verdicts on those charges on
the
strength of different facts. It seems to me that in
such
a case, too, one should not lose sight of the
aforementioned
practice.
I
return now to
S v E
(supra). In that case
the appellant had been charged, firstly
with the
kidnapping, or
alternatively the abduction, and, secondly
with
the rape, of a 10-year-old girl. The evidence
clearly
established - and the trial Judge found - that
the
complainant had been kidnapped and raped by the same
109
man. The
appellant disputed the identification of
himself
as the guilty party and also raised the defence
that
on the night in question he was so drunk that he
acted
involuntarily and as an automaton ("willoos en soos
'n
outomaat"). The trial Judge found that the appellant
had
been correctly identified as the culprit in respect
of
both charges, but held that it was reasonably possible
that
owing to intoxication the appellant acted involun
tarily.
He was accordingly found guilty of kidnapping
and
of indecent assault (and not rape since, the Court
reasoned,
that required a specific intent).
Prior
to the hearing of the appeal the appel
lant
was notified that this Court wished to hear argument
on
the questions whether the conviction for indecent
assault
should not be altered to one of rape and in any
event
whether the sentence in respect of this conviction
should not
be increased.
At the
hearing of the appeal the appellant
110
raised
the same defences of mistaken identity and auto
matism.
This Court upheld the trial Judge's identi
fication
of the appellant as the guilty party, but
overruled
the finding that the appellant acted involun
tarily
and as an automaton. The Court further held that by reason of this
latter conclusion and in pursuance of
the
powers accorded to it under sec 322(1)(b) and (6) it
should
find the appellant guilty of rape; and that an
increased
sentence should be imposed.
As
to this Court's finding that the appellant
did
not act involuntarily during the period in question,
the
appellant had, it is true, testified to having
consumed
a large quantity of liquor that evening and to
being
unable to remember anything after a certain point. The judgment of
this Court pointed out, however, that an
averment
of amnesia is not sufficient proof that the
person
concerned acted as an automaton during the period
of
amnesia. The judgment further emphasized that auto-
1ll
matism
was a defence which should be carefully scruti
nized
and should usually be supported by expert medical
evidence;
and that no such supporting evidence had been
adduced.
Further reasons for rejecting the defence of
automatism
included:-
the
actions and operations carried out by the
appellant
during the relevant period which were not in dispute and which
appeared to belie both
the
allegation of automatism and also his
evidence
as to the amount of liquor he had
consumed that evening; and
the
evidence of persons who saw him at various
times
during the relevant period and gave their impressions as to his
state of sobriety.
This
Court's finding was thus based upon a consideration of what must in
law be established in order to raise the
defence
of automatism and inferences to be drawn from
evidence
which was substantially not in dispute.
112
In
the present case the position is very
different.
A number of witnesses gave evidence relevant to the third appellant's
alibi defence. Some of this evidence was mutually
contradictory. In
order to decide
the issue
the trial Judge had to consider the relative
credibility
of these witnesses, the cogency of certain documentary evidence
placed before the Court, and the
effect
thereon of certain expert evidence led by the
State
in rebuttal; he had to weigh the various proba
bilities
and improbabilities; and he had to decide in
all
the circumstances whether there was a reasonable
possibility
that the alibi was true. If this Court were
to
accede to the State's invitation to re-open the
question
of the alibi, it would have to re-assess the evidence of all these
witnesses, resolve evidential
conflicts
and consider the probabilities. It would have
to
do so without the assistance of the trial Judge's full
reasons
for accepting the alibi, his impressions of the
113
witnesses
concerned, his views of the cogency of the evidence for and against
the alibi and his weighing of
the
probabilities. In my view, the Court should be loath
to
undertake such a task; and I am not persuaded that
the
powers conferred by sec 322(1)(b) and (6) were ever
intended
to be exercised in such a case.
I
have examined all the decisions of this Court
which
appear to be pertinent to this question (viz
R
v
Sanderson
1941 AD 121
;
R v Von
Elling
1945 AD 234
;
R
v Mkwanazi and Others
1948 (4) SA 686
(A);
S
v
V
,
supra;
S
v Du Toit
1966 (4) SA
627
(A) ). In all of them the
Court
substituted a conviction for a different (and often more serious
offence) generally on the basis of the facts
found
by the trial Court, or the undisputed facts or the
appellant's
own evidence. In no case did the Court (or
was
it asked to) completely overturn the trial Court's findings of fact,
its assessment of the credibility of
witnesses and its
weighing of the probabilities. The
114
furthest
the Court went was, in the case of
R
v Mkwanazi
and
Others
, supra, to
draw a different inference from the
evidence as a whole. And
that is essentially what
happened
in
S v E
(supra). In
R v
Sanderson
(supra) the
Court exercised its
powers under sec 374(d) of Act 31 of
1917
to alter a finding of guilty as an accessory after
the
fact to theft to one of guilty of receiving stolen
property
well knowing it to have been stolen. Centlivres
JA said (at p
124):
"In
my opinion this is clearly a case
where
the Court should exercise the power conferred on it, for on the
accused's own
showing, as
appears from the extracts from his evidence given above, he was
guilty of
receiving
stolen property well knowing it
to have been stolen."
For
these reasons I do not regard the present
case
as one appropriate for the exercise by this Court of the powers
accorded it in terms of sec 322(1)(b) and (6).
115
The
trial Court's finding in respect of third appellant's
alibi
must consequently stand.
The
Appeal of First Appellant against his Convictions
Postulating,
as I have held, that the evidence
established
a kidnapping, the essential question in first
appellant's
case is whether he became party thereto to
the extent found by
the Court a quo. He was, of
course,
acquitted on the assault counts. First appel
lant's
participation as the bus-driver in the expedition
to
the manse and back is not in dispute. In his state
ment
(exh "AA"), the details of which are set forth
above,
he admitted that he was. He, therefore, played
an important
role in the initial kidnapping. The
crucial
enquiry is whether he knew from the start, or at
some
stage during the expedition became aware of, what
the
true nature of the expedition was. His statement
does
not deal with this explicitly, but the trial Judge
116
interpreted
it (probably correctly) as suggesting that when he drove the bus he
was innocent of any knowledge
that
the complainants were being taken away from the
manse against
their will.
First
appellant was at the time a man of 61
years
of age. He had been a friend of third appellant's
family
for over 30 years. He was evidently a frequent
visitor
to no 585 and would sit and watch television
there.
The trial Judge rightly rejected as false the suggestion in his
statement that he was no more than a
servant,
employed by third appellant from time to time as
a
driver. He was present at no 585 when the conspiracy
to
kidnap was formed and the trial Court was of the view
that
it would have been "far too risky" to employ as
driver
a mature and independent man who was unaware of
the
essentials of the plan. Taking into account the
first
appellant's failure to testify, the Court concluded
that it
was not reasonably possibly true that first
117
appellant
drove the bus without knowing from the start
the
full purpose of the expedition; and that in any
event,
even if he was ignorant at the beginning, the
clandestine
manner in which the operation was conducted,
the
number of persons who accompanied second appellant
and
the circumstances generally must have alerted him to
the
truth. The case on the kidnapping charges was
established,
so held the Court, beyond a reasonable
doubt.
On
appeal first appellant's counsel argued that
his
client' s complicity in the kidnapping was not the
only
reasonable inference to be drawn from the circum
stantial
evidence. I cannot agree. It seems to me
that,
having regard to all the circumstances attending
this
expedition and the manner in which it was carried out, as detailed
above, it is extremely unlikely that first appellant was
unaware of
the true purpose of the
expedition
from the start or at any rate that he did not
118
become
aware of it during the course of the expedition.
He,
after all, was instructed to fetch the bus and drive
the
second appellant and her co-conspirators to the manse
at
a fairly late hour that evening; to park the vehicle
some
blocks away from the manse; and to drive them all,
together
with the complainants, back to no 585. It
seems
extremely unlikely that he would have done all this
without
at some stage asking: "Why? What are we doing?"
If
in such circumstances he was not told the truth, then
he
should have informed the trial Court of this.
Indeed,
his failure to enter the witness box to explain
his
role in the kidnapping and to establish his innocent
state
of mind is, in my view, the fatal weakness in his
case.
Another matter which called for an explanation
from
him was his presence in the outside rooms while the
complainants
were being interrogated and assaulted. It
must
by then have been crystal clear to him that the
complainants
were being held against their will. The
119
fact
that he then did not protest or in any way query the conduct of
Richardson, second appellant and the others or
actively
disassociate himself from it, suggests willing
complicity
in the kidnapping from an earlier stage.
Again
there was no evidence from first appellant to
gainsay this.
The
argument of first appellant's counsel
tended
to take each damning factor by itself and seek to
explain
it or reconcile it with innocence or show that
guilt was not
the only reasonable inference. But, in my view, it is the cumulative
effect of all these
factors,
together with the circumstances as a whole, and
importantly,
the first appellant's failure to give
evidence, that must be
weighed. Having done so, I
conclude
that the trial Judge correctly held that the
case
against first appellant in regard to counts 1 to 4
inclusive
had been established beyond a reasonable doubt,
but
that his complicity and responsibility were limited
120
to
the period while he drove them from the manse to no
585
and observed the interrogation and assaults. First
appellant's
appeal against these convictions must accord
ingly be
dismissed.
The
Appeal of Second Appellant against her convictions
I
have already dealt fully with the issue as to
whether
the removal of the complainants from the manse constituted a
kidnapping and whether their continued presence at no 585 constituted
a continuation of their
detention, and have concluded that
they did. It
necessarily follows
that second appellant as one of the
instigators
and leaders of the whole operation was guilty
of
kidnapping, as found by the trial Judge. It is true
that
second appellant did not stay at no 585 and did not personally
participate in keeping the complainants under
surveillance
and ensuring that they did not escape from
their
detention, but the evidence, as recounted above,
121
satisfies
me that she was well aware of such continued
detention,
that this was part of the scheme which she had
devised
and that those who actually detained the
complainants
acted with her approval and on her behalf.
Her
appeal against the kidnapping charges can, therefore,
not
succeed.
The
position in regard to her conviction on the
assault
charges is, however, not so straightforward.
Kgase's
evidence is that second appellant was present
throughout
the interrogation (in fact she conducted most of it) and most of the
period during which the complain
ants were assaulted. He
could not remember whether
second
appellant actually assaulted him, but he saw her
beating Se.
with a sjambok. Mono confirmed that second appellant was present when
the assaulting
commenced, but
could not recall whether she participated
therein.
Their evidence was, of course, found by the
trial
Judge to be unreliable and unacceptable without
122
corroboration.
As
I have indicated above, second appellant's
evidence-in-chief
was to the effect that she simply went
to
the back room with the complainants and the others,
that
she explained to them why they had been brought
there,
that she requested Richardson to keep them there, as third appellant
was away, and that she thereafter left
the
back premises and went and watched a video inside the
house.
She did not witness any assault, save that
Richardson
grabbed Kgase by the shoulder and pulled him because he laughed while
second appellant was speaking
about
"the Paul Verryn issue". Under cross-examination she
deviated somewhat from this by saying that she was
also
present while Richardson interrogated each of the
complainants
to obtain details from them of the sexual
abuse
by the Rev Verryn. The trial judge categorized
this
deviation as a lie and from this and other factors,
such
as the fact that second appellant was "an effective
123
disciplinarian
by nature", that she was disgusted by homosexual conduct, and
that she "wanted evidence that
would
serve to discredit Mr Verryn", drew the inference
that
she was lying in order to conceal her guilt. He
accordingly
found that her lies provided the corrobora
tion
that enabled the Court to conclude that -
"....
unsatisfactory witnesses though
Kgase
and Mono were, their evidence that
Miss
Falati [second appellant] partici
pated
in the assaults on them was beyond
doubt the truth".
And,
as I have indicated, in summarizing his conclusions
the
learned Judge stated that acting outside the scope of
their
conspiracy with third appellant, second appellant
and
others assaulted the complainants with a degree of
severity
that established their intent to do grievous
bodily harm.
Second
appellant's counsel attacked the
124
validity
of this finding and argued that there were
insufficient
grounds for inferring the guilt of the
second appellant.
It seems
to me that there are reasons
additional
to those mentioned by the trial Judge for
concluding
that, at least, second appellant was present
while
the complainants were being seriously assaulted. I
have
referred to the Court a quo's adverse findings in
regard
to the general credibility of second appellant's
evidence,
with which I am in broad agreement. Moreover,
in
my view, her evidence in regard to the question of the
assaults
upon the complainants was particularly bad and is indicative of her
guilty knowledge in this regard.
Second
appellant claimed not only not to have been
present
when the complainants were assaulted on 29
December
1988, but also to have been unaware at the time
that
this had taken place. There are improbabilities in
both these
claims. As I understand the evidence the
125
assaults
followed on the interrogation of the
complainants.
I find it passing strange that second
appellant
should have chosen that moment of transition
from
interrogation to violence to remove herself from the
scene.
I would have thought that she would have stayed
until
the end of whatever was to happen in dealing with
the
complainants, whom she had brought there, before
leaving.
The medical evidence indicates how prolonged
and
violent the assaults must have been. It seems to me
to
be improbable that second appellant sitting in the
house
a few yards away could have remained oblivious of
what
was happening. The noise of the assaults and the
cries
of the victims must surely have penetrated the
ambit
of her awareness. These improbabilities suggest
that
she was where the assaults were taking place and not
in the
house.
But
the improbabilities do not end there.
Second
appellant testified that on the following day she
126
came
to see the complainants and found that there was
"nothing
wrong with them". They, including Se., were
cleaning
windows. In view of the injuries inflicted by
the
assaults I find this evidence improbable. If they
were
cleaning windows, then one imagines they would have
looked
unhappy or uncomfortable and would have voiced
their
complaints, had second appellant not been present
when
they were assaulted. The one exception was Kgase,
whose
eye was bloodshot and swollen. She ascertained
from
one Sibonelo that Richardson had hit him. Although
this
caused her to be "foaming", or "furious", she did
not speak to Kgase about
this. Questioned about this she explained, unconvincingly, that
Richardson was not there
and
she wanted to talk to Kgase in the presence of
Richardson
and added (referring to Kgase):
"I
did not want to trouble him, I know
that if a person has been
troubled,
worried by something,
if another person
should
afterwards come and ask you about
127
that, you
become even more troubled."
The
absurdity of this reply alone speaks volumes. After
seeing
Kgase's injured eye she also did not ask the other
complainants
whether they were still happy about staying
there
or ascertain whether they perchance had also been
assaulted.
The reason given (equally absurd) was:
"I
saw them being busy, they were cleaning
and I decided not to
trouble them and
decided that I
will call them once Jerry
is present."
At this
stage of her evidence second appellant appeared
to be
improvising from question to question, for shortly
after
giving the above-quoted reply she contradicted
herself by
alleging (with reference to Mono, M. and
Se.) -
"I
did ask them: Are you well? They said, yes, we are well, that was
all."
This
appears to be a blatant lie, compounded by her
128
answer to
the next question:
"This
is something new now?â You did not ask me in details. This is the
first time that you said, in details, in finer
details."
Moreover,
I cannot believe that second appellant, who
emerges
from the record as being a strong, forceful,
outspoken,
voluble and impulsive person, would not have investigated the whole
question of Kgase's injury - and
the
possibility of the other complainants also having
been
injured - on the spot, if this was her first intima
tion
that anyone had been assaulted. I think that the
simple
answer is that it was not her first intimation:
she knew all
about it.
According
to second appellant, she did, on 31
December
1988 confront Richardson with the assault on
Kgase in the
presence of all the complainants. He admitted the assault; but she
did not speak to Mono,
129
M.
and Se. because they showed no injuries. If
this
confrontation did take place (significantly it was not put to either
Kgase or Mono by second appellant's
counsel),
it seems most improbable that none of the other
three
(Mono, M. or Se.) would have complained
about
his own injuries; and that second appellant would
not
otherwise have become aware that one or more of them
had
suffered injury. The inference is strong that this
evidence
is untrue and that second appellant was well
aware
of their injuries and the cause thereof.
For
these reasons I am satisfied that second
appellant
was indeed present while the complainants were
being
assaulted and was well aware that they had suffered
injuries.
It is possible that she left shortly before
the
assaults ended, but that is of no great moment. The
State
evidence as to her actual participation is weak
and,
in my view, cannot be relied upon. Nevertheless,
having
regard to the leading role played by her in the
130
kidnapping,
the fact that she had taken charge of the
complainants and had
brought them there and her
personality
generally, it is to be inferred beyond a
reasonable
doubt either that the assaults were part of a
pre-conceived
plan to which she was party or that, at any
rate,
she approved of and associated herself therewith.
In
the circumstances she rendered herself guilty on
counts
5 to 8 inclusive and her appeal against these
convictions must
fail.
Appeal
of Third Appellant against her Conviction
on the Kidnapping
Charges
As
I have stated above, the third appellant was
convicted
on the kidnapping charges on the basis that
before
she left for Brandfort she became part of the
conspiracy
to remove the complainants from the manse and
keep
them at no 585. It was third appellant' s case -
and she
testified to this effect - that prior to her
131
departure
for Brandfort on 29 December 1988 she was not
told about
the plan to "fetch" the complainants from the
manse and
was in no way party to this conspiracy. In
this she
was corroborated by second appellant who stated
in
evidence that in mounting the operation to fetch the
complainants
she acted without the prior knowledge and
consent of
third appellant.
The trial
Judge rejected this evidence,
remarking
that -
"To
imagine that all of this took place
without
Mrs Mandela as one of the moving
spirits,
is like trying to imagine Hamlet
without the prince."
His
conclusion was:
"At
some stage during that Thursday
afternoon a number of persons,
who
included Mrs Mandela, Miss
Falati, John
Morgan and
Jerry Richardson, conspired
together
to mount an operation in terms of
which Morgan was to drive
Miss Falati,
132
Jerry
Richardson, Slash and Moss in Mrs
Mandela's bus to the manse
at the
Methodist Church in
Orlando West, there to seize such youths as Miss Falati might
in
dicate, and to
bring them back whether
they
were willing or not, to be held
captive
in the back rooms at Mrs Mandela's
house."
One
of the factors pertinent to this issue (and
relied
on by the learned trial Judge) is the evidence
given
by second and third appellants as to what informa
tion
was conveyed by the former to the latter about the
position
at the manse on 29 December 1988. It will be
recalled
that in her evidence second appellant stated
that
on this day she told third appellant only about
K.,
what was alleged to have been done to him by the
Rev
Verryn and K.'s reaction. She was asked by
counsel
for the State whether at the same time she told
third
appellant about the other evidence of sexual abuse or malpractice
arising from what she had previously been
133
told
by Se., K. and Kgase and she replied that she
"did
not tell her a thing". She was cross-examined at
length
about this, but stuck to her guns.
The
trial Judge held that there was "grave
improbability"
in her "claim to reticence" about these
matters. I
fully agree. On the two occasions when
second
appellant saw third appellant on 29 December the
whole
question of sexual abuse and sexual malpractice at
the
manse was very much on her mind. In fact that very
morning
Kgase had indicated to her that these practices
were
widespread at the manse. Her emotional reaction to
these
disclosures was profound and she was determined to
take
action. It is true that her immediate attention
was
concentrated on the plight of K., but his case
was
merely a manifestation of a more generalized evil.
In
the circumstances it seems improbable that she would not have fully
unburdened herself to third appellant at some stage during
the
considerable time they were
134
together
on 29 December. Indeed, third appellant's
initial
reaction to second appellant's allegations about K. on the occasion
of her first visit on 29 December
("Is
the reverend still doing this thing?") would seem
almost
to have compelled, or at least invited, disclosure
of
the general position at the manse. Furthermore, as I
shall
show, second appellant's evidence in this regard
was,
in the end, refuted by that of the third appellant.
Third
appellant's evidence on this topic is
most
revealing. I must preface reference thereto by
pointing
out that a statement made by her in terms of sec
115
of the
Criminal Procedure Act (exh
"A") contained,
inter
alia, the following three paragraphs:
"3.
During the end of December 1988 I was
approached
by Xoliswa Falati (Accused
No
6). She informed me that she was
looking
after a number of youths at
the
Methodist Church Mission House in
Orlando
West; that the Reverend Paul
Verryn
was sexually abusing a number
135
of
the youths that had taken refuge
at
the Mission; that some of the
youths
were following Paul Verryn's
example
in indulging in homosexual
practices;
that one of the youths, K.C. (Accused No 3) had,
as
a result of indecent assault by
Verryn
on him, become mentally
disturbed;
that Paul Verryn had gone away and that she (Xoliswa) required
assistance from me.
4.
I
suggested to Xoliswa Falati that
she
should bring the youth (K.
C.)
to me and that I would make
arrangements
for him to consult a
doctor.
5.
-
On 29 December 1988 Xoliswa Falati,
K.C.
and I visited the
rooms
of Dr Abu Bakar Asfat, who
examined
K.C. and recom
mended
that both he and Paul Verryn
should
seek psychiatric treatment as
soon
as it could be arranged."
136
And in his opening address senior
counsel appearing on behalf of third appellant stated:
"She will confirm the
contents of her statement Exhibit "A". What is said in
paragraphs 3 and 5 occurred on the same
day,
December 29, but separated in time by
Ms Xoliswa Falati having
gone to fetch K.C.."
At the commencement of her
evidence-in-chief the third appellant did indeed confirm the
correctness of exh "A" in general
terms. Later she was
asked by her counsel (with reference to 29 December) whether second
appellant told her (third appellant) that
K. was an isolated problem
or whether she said there were other people at the manse about whom
she was concerned. To this pointed
question third appellant replied:
"No, we did not discuss
anything else. We discussed the question of K.."
137
Under
cross-examination on this topic third appellant
prevaricated,
vacillated and contradicted herself.
Having
been questioned about what was discussed on 31 December 1988, third
appellant was asked whether there
was
any "other occasion" (i e other than 31 December
1988)
on which second appellant informed her that the
four
complainants were involved in "certain things"
(clearly
a reference to the sexual malpractices) at the
manse. To this
third appellant replied:
"I
think that was on the 29th, when she
could
have made reference to that. I am
not
sure if she did also refer to that on
the 31st."
Counsel
followed this up:
"So
on the 29th, she spoke about K.
and
she mentioned that other youths were
also involved in the
sexual abuse?â
That was just
in passing. There was no
concern
at that stage over the others."
138
The
contradiction of her evidence-in-chief contained in
these
answers is obvious. The cross-examination as to
what
she was told about the position at the manse
continued
for some time. During the course of it third
appellant
was asked whether second appellant, after being
told
about the youth
X
incidents, then
told her that
K. was not
an isolated incident but that there was other information of sexual
abuse. She replied that it
was
possible, but she could not say so definitely. She
was
asked whether there was any other occasion on 29
December
when second appellant could have told her this;
to
which she replied: "To my recollection we concentra
ted
on K. at that stage". Second appellant's
version
was put to her and her response was: "That is
why
I am not absolutely certain at what stage she told
me, if that
is what she said".
Third
appellant was then confronted with exh
139
"A"
and by what her counsel had said in his opening
address.
She continued to prevaricate and to suggest
that
it was merely "possible" that on 29 December she was told
about K.
and
about sexual abuse of other youths.
When
asked whether her evidence was that the events
described
in paras. 3 and 5 occurred on the same day (as
stated
by her counsel and as is obvious from exh "A"
itself)
she sought refuge in the formula "not necessarily". Later
she conceded that the two paragraphs could be "read
together".
Third
appellant later stated several times that
second
appellant's report about sexual abuse of a number
of
other youths was merely "mentioned in passing"; that -
she
did not remember her mentioning on 29 December that
some
of the youths were following the Rev Verryn's
example
and indulging in homosexual practices (cf par 3
of
exh "A"), but that this could have occurred on 31
December
when second appellant -
140
"
rattled off a lot of information
about
youths she had brought home".
She
followed this up by saying that this could only have
occurred
on 31 December. She also stated that on 29
December
second appellant did not request third appel
lant's
assistance in regard to the other youths (cf par 3
of
exh "A"); and that they did not discuss her allega
tions
of sexual abuse of the other youths because she
(third
appellant) "concentrated on K.". This seems
improbable.
Moreover, she was questioned about her
statement
that homosexual practices amongst the youths
were mentioned
only on 31 December:
"And
are you
sure
now that the homo
sexual
practices
amongst
the youths was
only
mentioned on
the
31st, definitely not
on the 29th?â I
did
not say that.
Well,
I am
asking
for your version
once again?â My version remains
the
same.
And what
is
it?â It may have been
141
mentioned
slightly on the 29 th and it
could
have been mentioned also on the
31st.
You
are sure now that it could have
been
mentioned on one or the other of the
occasions,
or on both, or not?â I have
stated
it could have been mentioned on the
29th
and could have been mentioned on the
31st as well.
Now
this was obviously a serious new
allegation.
What you knew at that stage
was
that Verryn allegedly abused the
youths.
This was something new, is that correct?â I do not understand, what
was
new?
The
allegation that the youths them
selves
were now practising homosexual
acts?â I do not recollect
hearing of that on the 29th.
You
only recollect hearing that on the
31st?â Yes."
This
evidence in regard to information about
homosexual
practices (upon which exh "A" is quite
explicit)
well illustrates the third appellant's capacity
142
for
being evasive, equivocal, vacillating and contradic
tory
in her testimony. Moreover, it seems clear from
exh
"A" that second appellant did cm 29 December convey
to
third appellant all the information referred to in par
3
thereof; and that her attempts to suggest that some of
this
information, viz that concerning youths other than
K.
and concerning homosexual practices amongst the
youths
themselves, was conveyed only on 31 December were
deliberately
untruthful. One then asks oneself why did
third
appellant deviate in this way from exh "A" and tell
these
untruths? Third appellant's counsel spoke of her
having
"fudged" her evidence in this regard. According
to
the Oxford Dictionary the verb "fudge", when used
transitively, means -
"To
fit together or adjust in a clumsy,
makeshift
or dishonest manner; to patch
or
'fake' up; to 'cook' accounts."
I am not
sure that this is what counsel intended to
143
convey,
but on reflection it seems to me that "fudge" is
indeed
a good description of third appellant's evidence
on
this aspect of the case. And to answer the question
posed
at the beginning of this paragraph, it seems to me
that
this evidence shows that third appellant was
desperately
anxious to distance herself from the "other youths" (i e
the complainants) and from any knowledge of a general
problem
affecting them prior to her departure
for
Brandfort. I think, too, that it may be inferred
that
the probable reason for this attitude on third
appellant's
part is the realisation that if she admitted that the position of the
other youths had been discussed
on
29 December, the next logical questions would be:
what
did you and second appellant then decide to do about
them?
and did you not agree to and plan this "rescue"
operation,
spearheaded by second appellant and Richard
son?
This possibility was canvassed with her in cross-
examination:
144
"So
Mrs Falati did not, she came to
you
for assistance relating to K. but
she
did not require assistance relating to
the
others?â She did not request our
assistance
for the others on the 29th.
And you
took no initiative by saying:
well,
Verryn has done it before, let us
hear from
all five; you are taking my
Combi, you
might as well bring them all?â
No.
Did
she say to how many other youths
it had been done?â No.
Did
she say what had been done to
them?â No.
Did
you ask any questions about her
allegation
relating to the other youths?â
No.
Why
not?â I was dealing with the
question
of K.. I had my own things
to attend to."
To
say the least, this evidence is not convincing.
According
to second appellant homosexuality is completely
alien
to the African culture and strongly disapproved in
145
African
society. In a media interview given well after
the
event (see par 1 of exh "AE") third appellant stated
that
she had spoken to " the youths" involved in the
assaults
and that they had admitted "clappings" when
questioning
a boy about "indulgence" in what they regarded as -
"...
utter filth, the fact that the
situation
in Paul Verryn's house had so
deteriorated
that they were now sleeping
with
each other, and that is alien to our
culture,
we thought something was drasti
cally wrong."
Under
cross-examination third appellant stated that this
reflected
the views of the youths, but there is no reason
to
believe that she did not share them. In the circum
stances
one would have expected her reaction to the
information
conveyed to her by second appellant on 29
December
to have been more interested, positive and
constructive than
the above-quoted evidence seeks to
146
suggest.
Another
factor, or series of factors, empha
sized
by the trial Judge were the circumstances (i) that the vehicle used
to transport the expedition to and from the manse belonged
to third
appellant; (ii) that the bus
was
driven by first appellant who from time to time drove
for
third appellant; and (iii) that the complainants
were
brought to third appellant's home and "accommodated"
there.
Bearing in mind third appellant's political and
social
position within the community and the fact that,
according
to third appellant, second appellant did not
know
her well, it would have been extremely presumptuous for second
appellant to arrange and do all this without
any
prior permission from third appellant. Moreover,
one
wonders why first appellant and Richardson should have agreed to
participate in this expedition at the
behest
of second appellant who at the time does not
appear
to have known first appellant and whose
147
acquaintanceship
with Richardson was slight (she did not
even
know his surname) . The same goes for Slash and
Moss.
It would have been different had they received
orders
from third appellant. It is true that when it
came
to the eventual release of Mono and M. second appellant and
Richardson appear to have adopted an
independent
and unyielding attitude, contrary to that of
the
third appellant and contrary to instructions given by
her
to Mr Ayob for the release of the youths. By that
stage,
however, they had become partners in crime and had
reason
to be reluctant to see Mono and M. released
and
able to tell their story to the world.
The
trial Judge expressed scepticism about the
series
of "curious chances" which, according to second appellant,
led to the expedition taking place, viz the
faulty
inside toilet; the chance presence of Richardson
and
the conversation with him which led to the sudden
decision
to remove the complainants from the manse; the
148
prior,
unannounced departure of third appellant for Brandfort; Richardson's
willing co-operation; the ready
availability
of the bus and its driver, first appellant,
and
his willingness to assist; the fact that Slash and
Moss
wished to come for the "pleasure of the ride"; and
so
on. I tend to share this scepticism. The whole
story
sounds contrived. Third appellant's evidence as to
what
she was told by second appellant on her return from
Brandfort
on 31 December 1988 is also very unsatisfac
tory.
Her laconic version in evidence-in-chief has been
quoted
above. It was simply to the effect that second
appellant
said she was sorry that she had brought some
children
to no 585 and hoped third appellant would not
mind. This is
patently untrue. It conflicts sharply
with
what second appellant stated in her evidence and, as
I
have indicated above, second appellant's evidence in
this
regard was not challenged in cross-examination by
third
appellant's counsel. More importantly, however, it
149
is
irreconcilable with par 7 of exh "A", which reads:
"On
my return home from Brandfort on 31 December 1988 Xoliswa Falati
informed me
that she had
in my absence arranged with
Jerry
Richardson who, together with other
youths,
had been staying in rooms at the
back
of my house, to bring 4 of the youths
from
the Mission House to prevent Paul
Verryn,
upon his return, from frustrating
an
investigation into the truth of the
allegations
that homosexual practices were
taking
place at the Mission House, and to
prevent
the spread of homosexual practices
amongst
the youths staying there."
Under
cross-examination she slowly conceded, bit by bit,
that
what was stated in par 7 was correct. Initially
she
was only prepared to admit that par 7 was to some
extent
correct, but later, and with slow and painful
reluctance,
she conceded that second appellant had told her that she had arranged
with Richardson to bring the youths to no 585;
that there were four
youths; and that
150
they
had been brought to prevent the Rev Verryn, on his
return
to the manse, from frustrating an investigation
into
the truth of the allegations about homosexual
practices
at the manse and to prevent the Spread of
homosexual
practices amongst the youths staying at the
manse.
Again one
asks oneself: why the initial
untruths,
why the conflicts with the evidence of second
appellant,
why the reluctance to admit to the correctness
of
the document which was drawn up on her instructions
shortly
before the trial? No ready answer springs to
mind.
It certainly may be inferred that third appellant
was
attempting, falsely, to distance herself from the
complainants
and to disclaim knowledge at that stage of the reasons why the
complainants had been brought to no
585
and were being accommodated there. Possibly she
thought
that the less she knew, or admitted to knowing,
about
them, the more difficult it would be to establish
151
complicity
on her part in the continued detention of
the
complainants at no 585. At all events, one can with
justification
say that this aspect of third appellant's
evidence
displays on her part a serious lack of candour
and
a willingness on occasion to resort to untruths.
The
undisputed facts of what happened after 31
December
1988 reveal a curious attitude and course of
conduct
on the part of third appellant. In the first
place,
she never had any contact with the complainants
from
the day she returned from Brandfort until the day
that
the last of them, Mono and M., were removed from
no
585. She saw Se., briefly and from a distance,
washing
himself at the tap attached to the outer wall of
the outside
bedroom on the day she returned from
Brandfort.
That was all. A question to her in cross-
examination,
whether she ever went to "those back rooms",
elicited
the curious response, "Not necessarily". Asked to explain,
third appellant said that there was no need
152
for
her to do so and that she "respected the privacy" of
those
living there. Be that as it may, I find it
strange
- and indeed improbable if her story is true -that third appellant,
having been informed on her return
from
Brandfort (as she eventually admitted) that the
complainants
were youths from the manse who were involved
in
the allegations of homosexuality against the Rev
Verryn
and that they had been brought there to prevent
the
Rev Verryn from frustrating an investigation and to
prevent
the spread of homosexual practices at the manse,
would
not have been interested to speak to these youths
and
to hear what they had to say, if not there and then,
-at
least during the ensuing few days. She had taken a
keen
interest in K.'s case; second appellant
intended
an investigation into this whole matter to take
place
and wanted third appellant to take part in it and she conveyed this
to third appellant; and third appel
lant
herself wanted an investigation into the affair,
153
though
her concept of the type of investigation required
may
have differed somewhat from second appellant's.
Third
appellant was cross-examined about her apparent
lack
of interest in the complainants after her return
from
Brandfort. Her replies were unconvincing: all that
she
was prepared to say was that "there was no need" and
that
she "was waiting for Paul Verryn to return".
Secondly,
second appellant's statement in evidence
(referred
to above) that on third appellant's return from
Brandfort
on 31 December she pointed out Kgase's injured eye and told her that,
according to a report, Richardson
had
assaulted him, was put to third appellant in cross-
examination.
Third appellant initially reacted by
saying
that second appellant "may" have told her this;
then
confirmed that she heard second appellant saying this; immediately
thereafter she stated that second
appellant
"possibly said words to that effect"; and some
time
later testified that "if she said so, I did not
154
hear"!
So at that stage, according to third appellant,
she
"did not know that an assault had taken place".
This
cross-examination, read in its full context, is a
good
illustration of third appellant's capacity for
evasiveness
and self-contradiction. It also, together
with
the evidence of second appellant, satisfies me that
the
third appellant was informed of the injury to Kgase.
In
the circumstances it seems odd that she did not seek
out and
speak to Kgase about this.
Thirdly,
when third appellant was visited by
the
crisis committee and told of the allegations of kidnapping and
serious assault, she still did not make
any
contact with the remaining complainants to hear for
herself
what their story was. Her explanation, as
quoted
above and as elaborated in cross-examination, was
that
she was "outraged" and knew that the allegations were
untrue, but did not wish to be accused of having "influenced"
the complainants. Assuming ignorance of
155
the
original plan to kidnap on the part of third appel
lant,
I find this explanation to be plausible, but
improbable.
The same comment applies to her explanations for inaction after the
visits of Dr Motlana and Mr Ayob.
And,
I might add, when cross-examined about the visit of
Dr
Motlana third appellant contradicted herself badly.
During
evidence-in-chief, in answer to a question, she
stated
that Dr Motlana had told her that he had heard
that
"the youngest of the four" (obviously a reference to
Se.)
had disappeared about a week before he (Motlana)
came
to see her. Under cross-examination she stated
twice
(in answer to plain questions) that Dr Motlana had
not
indicated when the one youth was supposed to have
disappeared.
Confronted by the conflict with her
evidence-in-chief,
the third appellant then said that she
had not understood the
questions. After further questioning she agreed that Dr Motlana had
said "something like that".
156
To sum up
the position, I am of the opinion:
(1)
That the evidence establishes beyond a
reasonable
doubt that at some stage during
the
afternoon of 29 December 1988 second
appellant
conveyed to third appellant the
information
referred to in par 3 of exh
"A"
and detailed above. This indicated
that
K.'s case was not an isolated one
but
that there was a general problem
concerning
homosexuality at the manse.
(2)
That in her evidence second appellant lied
about
this; and that third appellant lied
about
it in her examination-in-chief and
to
some extent under cross-examination.
It
was only after prolonged cross-
examination
that third appellant conceded
that
certain of the information in par 3
157
of
exh "A" indicating a general problem
may
have been "mentioned in passing" or
"mentioned
slightly", on 29 December.
That
when the information contained in
paras
3 and 5 of exh "A" was conveyed by
second
appellant to third appellant the
probabilities
indicate that they would
have
discussed the problem and how it
should be tackled.
That
the general circumstances and the
nature
of the expedition to fetch the
complainants from the manse
reveal a
strong probability
that second appellant
could,
and would, not have acted on her
own
initiative but only in pursuance of a
plan
evolved by (at least) the two of them and authorized by third
appellant.
158
That
the probabilities are reinforced by the improbable and apparently
contrived
account given
by second appellant as to
how
the operation originated and was
carried out.
That
third appellant initially lied about
what
information was conveyed to her by
second
appellant on her return from
Brandfort
on 31 December 1988 and again
only
after lengthy cross-examination
admitted
the correctness of par 7 of exh
"A".
That
third appellant's conduct and general
attitude
towards the complainants and
their
presence at no 585 after 31 December
1988
and until their release (as detailed
above)
is, to say the least, very strange.
159
It
indicates a determination on her part
to
distance herself from the complainants,
even
after the visits of the crisis
committee,
Dr Motlana and Mr Ayob and
after
she had been informed about the
assault on Kgase. This is
readily
explicable if she was
party to their
kidnapping,
but is difficult to explain or
understand
if she was innocent of any
complicity
in their removal from the manse
or detention at no 585.
I
come now to the critical question: does all
this
establish beyond a reasonable doubt that third
appellant
was party to the plan to kidnap the complain
ants? The
fact that third appellant's denial of
complicity
is backed by second appellant does not, in my
view,
carry any weight. Second appellant was, as I have
160
indicated,
shown to be a totally unreliable witness and
she
lied blatantly in regard to what she told third
appellant
on 29 December about the situation at the
manse.
On the other hand, there is no direct evidence
of
third appellant's complicity. The State case against
her
and her conviction by the Court a quo rested on
inference.
And, of course, in a case which depends upon inference the well-known
rules of logic for the drawing
of
inferences as expounded in
R
v Blom
1939 AD 188
,
at
202-3 come into play.
The
seven points which I have summarized above
consist
of (a) certain findings of fact beyond a reason
able
doubt, (b) probable inferences to be drawn from
these
findings or from the undisputed circumstances and
(c)
instances where the third appellant gave untruthful
evidence.
In determining the question of the third
appellant's
complicity it is not necessary that each such
finding
or inference or circumstance should establish
161
such
complicity beyond a reasonable doubt. The cumu
lative
effect of a number of probabilities pointing in the same general
direction may be such as to establish
the
guilt of an accused beyond a reasonable doubt (cf
R
v
Mtembu
1950 (1) SA 670
(A), at 680, per Schreiner JA; S
v
Smith en Andere
1978
(3) SA 749
(A), at 755 A - B).
The
consequences of, and the inferences to be drawn from
the
fact that an accused has given untruthful evidence
are
difficult matters (see
S
v Mtsweni
1985 (1) SA
590
(A), at 593 I - 594
E, and the authorities there cited).
Much
depends upon the particular facts and circumstances
of
each case. In the present case, as I have explained,
the
untruthful evidence referred to in the above-stated
seven
points has in each case a bearing upon the third
appellant's
complicity in the operation to fetch the
complainants
from the manse and to keep them at no 585.
Furthermore
the untruthful evidence does not stand alone.
It
is reinforced by the various probabilities to which I
162
have
referred.
For
these reasons, I have come to the conclu
sion
that the evidence did establish beyond a reasonable
doubt
that on the afternoon of 29 December 1988 second
and
third appellants did discuss, inter alia, the
situation
at the manse in general terms in the light of the information
conveyed to third appellant by second
appellant
(see finding (1) above); that together (and
possibly
with others) they formulated the plan to remove
the
complainants from the manse and bring them to no 585;
that
they contemplated the possibility that the
complainants,
or some of them, might object to leaving
the
manse, but decided that the operation would proceed regardless of
whether the complainants were willing to
come
or not. It was suggested in argument that while
the
third appellant may have planned or sanctioned a
rescue
operation, it was not shown that she had been
party
to a scheme to remove the complainants from the
163
manse
and detain them against their will. This argument is not
well-founded. Firstly, there is no evidence to
support it, nor
is it capable of reasonably being inferred. It is true that third
appellant's general
line of
defence precluded her from throwing any light on
this
aspect of the matter, but this should not redound to
her
benefit (cf
R v Mlambo
1957 (4) SA 727
(A), at 738 B
-
D). Secondly, as I have held, the operation was
certainly
executed on the basis that the complainants
were
to be brought to no 585 nolens volens and the
natural
and logical inference is that it was executed
according
to plan. Thirdly, the argument postulates, as it was put, that second
appellant "had an agenda of her
own",
which she concealed from third appellant. Having
regard
to the relationship between the parties and third
appellant's
general status this seems improbable.
Fourthly, if, as I have
held, third appellant's complicity and assistance was probably
necessary to
164
secure
the participation of Richardson, Slash and Moss,
third
appellant must have known that they were to be part
of the
expedition and that their function was to
"persuade"
the complainants to do what they were told,
should
they prove uncooperative. Fifthly, third appel
lant's
general attitude to the complainants after 31
December
1988 seems more consistent with the belief that
they
were being detained rather than that they were
willing
sojourners.
For
these reasons I am satisfied that the Court
a quo correctly
convicted third appellant on the kidnapping counts.
Appeal
of Third Appellant against her conviction
on the Assault
Charges
In
the Court below the acceptance of third
appellant's
alibi meant the failure of the case which the
State
presented against her on the assault charges. The
165
State did
not press for a conviction of being an accessory after the fact to
assault. Indeed I
understand the
position to be that the question of
criminal
responsibility on this basis was raised for the
first
time by the trial Judge during the argument of
third
appellant's counsel at the end of the case. It
was
consequently not canvassed in evidence. In the
circumstances
it seems to me that the Court should be cautious about drawing
inferences adverse to the third
appellant
in order to establish a case against her of
responsibility
as an accessory after the fact.
The
authors Burchell and Milton in their work
Principles
of Criminal Law
define an accessory after the
fact as -
"....
someone who unlawfully and inten
tionally,
after the completion of the
crime,
associates himself or herself with
the
commission of the crime by helping the
perpetrator or
accomplice to evade
166
justice."
As
the authors point out, the case law would seem to
indicate
two different approaches to the definition of an
accessory
after the fact: a wide approach which merely
requires
that the accessory should have associated
himself
in a broad sense with the offence committed; and
a
narrower approach which requires that the association
takes
the form of helping the perpetrator to evade
justice. The
authors appear to favour the latter
approach
and the definition which they give is based on
it.
These two different approaches were described by
Preiss
AJA in
S v Nkosi and
Another
1991 (2) SACK
194 (A)
and the learned
Judge there referred to most of the
leading
cases on the subject. He did not, however, find
it
necessary to consider whether there is any real
conflict
between the authorities or whether the wider or
narrower
approach should be adopted. The topic is
167
discussed
by Snyman
Strafreq
,
3 ed, at 294-5, who also expresses a preference for the narrower
approach and
defines
accessory after the fact ("begunstiger") as -
"....
iemand wat wederregtelik, opsetlik
en
met die doel om die regspleging te
verydel
of te belemmer, iemand anders wat
reeds
die misdaad gepleeg het, help om
aanspreeklikheid
vir sy daad te ontduik."
In
so far as it may be necessary in this case
to
do so I would express a preference for the so-called
narrower
approach and would endorse the definitions
compiled
by Burchell and Milton and Snyman. (See also
De
Wet en Swanepoel
Strafreq
,
4 ed, at 202.)
As
the above-quoted definitions show, intention
or
dolus is an essential element of the offence of being
an
accessory after the fact. It follows that it must be
shown
by the prosecution that the accused, the alleged
accessory,
knew that the person whom he helped had
168
committed
a crime; and I shall for the purposes of this
case accept that
in this connection dolus eventualis
is
sufficient to render the accused criminally responsi
ble
(see
R v Jonqani
1937 AD 400
, at 405, 406;
S
v
Jonathan en
Andere
1987 (1) SA
633
(A), at 643 I - J).
This
would mean that if the accused had knowledge of
facts
which indicated to him the possibility that a crime
had
been committed by
X,
and the accused
proceeded to
help
X,
reckless of what
the position was and with the
required
object, he would be guilty as an accessory after
the fact.
The trial
Judge found:
(a)
that third appellant knew by 1 January 1989, at
the
latest, that Richardson and others living
in
the outside rooms had on 29 December 1988
committed
the assaults referred to in counts 5,
6, 7 and 8 of the
indictment;
169
that she
knew that the victims of these
assaults,
the complainants, were being held cm
her
premises against their will by Richardson;
that
she knew that she could order Richardson
to
release the complainants and that he would
have no choice but
to obey her;
that
she knew that, but for their captivity,
the
complainants would have been free to pursue
remedies
of the criminal and civil law against
Richardson
and the others who assaulted them;
that
by continuing to cause or allow Richard
son to hold them
captive third appellant
assisted
Richardson and the other assailants to
escape
(at least for a time) the consequences
of their crimes;
that by
continuing to allow Richardson and the
170
other
assailants to live on her property, she
assisted
them to postpone or avoid discovery of
the
crimes of assault they had committed; and
(g)
that in the circumstances third appellant was
guilty as an
accessory after the fact in
respect
of the assaults charged in counts 5 to
8 inclusive.
With
regard to third appellant's knowledge of
the
commission of the offences, the trial Judge's
conclusion
was that she either knew well, from informa
tion
conveyed to her, that the assaults had occurred and
that
Richardson and the other assailants had committed
them; or
else -
"....
she noticed enough to appreciate the
nature
of the crimes and the identity of
the
criminals which inquiry would have
been
bound to reveal, and she then delibi-
rately
forebore to make the obvious
inquiries
which any reasonable man would
171
have
felt bound to make in the circumstances, and by that sedulous
avoidance of all
avenues
to the truth she may have managed
to
preserve what she now represents as ignorance on her part of the
crimes in
question."
He
further held that it made no difference which of these
two
situations was the truth: in either case the third
appellant
was criminally responsible. He stated:
"You
cannot escape your responsibilities
in
law by the stratagem of deliberately
avoiding
knowledge which you would gain in
the
ordinary course. For the answer of
the
law is to treat you in the same way as
if
you had the knowledge which you took
care to avoid."
It
is not clear to me what principle or legal
concept
the trial Judge intended to express in the two
passages
I have quoted. If he intended dolus eventualis, then I would prefer
the formulation which I have essayed
172
above.
If he intended some form of imputed knowledge not
subsumed
by dolus eventualis, then, with respect, I am
not
aware of any valid basis for such principle.
The
learned trial Judge listed a number of
grounds
or circumstances for his conclusion as to the state of third
appellant's knowledge in regard to the
assaults.
I shall consider these seriatim.
1. While
the assaults were being administered in
the
outside rooms the probabilities are that
persons
in the main house would have become
aware
of the noise and commotion associated
therewith
and would have realised that assaults
were
taking place. I agree as regards persons
in
the rooms at the back of the main house, but
it
does not necessarily follow that they would have known who the
assailants and who the vic
tims were.
173
Present
in the house at the time were third
appellant's
daughter and grandchildren and Mrs
Gogo
Mabuza. As regards third appellant's
daughter,
this finding is not in accordance
with the evidence:
according to third
appellant
she was elsewhere "preparing to write
some
examination". Third appellant did say
that
when she left for Brandfort Mrs Mabuza and
her
three grandchildren were in the main house.
There
is, so far as I am aware, no evidence to
show
that they were still there, and if so in
what
part of the house they were and what they
were
doing, when the assaults took place.
Mrs
Mabuza's son, S.B.M. (otherwise known
as
"Scar"), was one of those alleged to have
participated
in the assaults. Indeed he was
one
of the original accused in the case.
It was
likely that Mrs Mabuza, third
174
appellant's
daughter and the grandchildren
would
have heard the sounds of the assaults;
that
this would have excited their curiosity;
and
that they, or at least Mrs Mabuza, would
have
enquired from B. next morning what had
happened.
5.
On 31 December 1988 the wounds suffered by the
complainants,
or some of them, would have been
visible
even though the complainants were
clothed;
and their wounds would have made them
sensitive
to clothing so that they would have
tended
to carry themselves carefully and not to
move
with "care-free abandon". The learned
Judge
conceded that there was no evidence to
establish
this and that in so concluding he
was
drawing on his own experience. I would
respectfully
suggest that it ventures into the
realms of speculation.
175
6. Third
appellant would have become aware of the
assaults
from these various sources of infor
mation.
Third
appellant's evidence was that, apart from
Kgase's
injured eye (which I have dealt with above), her
first
intimation that the complainants might have been
assaulted
was when she was told of this allegation by the
crisis
committee. She then invited the members of the
crisis
committee to go to speak to the two remaining
complainants.
After this visit she spoke to Richardson
(and
S.B.M.) and received their versions of what
happened.
By that stage the allegations of assault were
common
knowledge in the community. Kgase had escaped
and
told his story to the Rev Verryn and others; Bishop
Storey,
Dr Motlana, Mr Ayob and many others were aware of
the
situation and they were endeavouring to secure the
release
of Mono and M.; and there were the
176
subsequent
visits by Dr Motlana and Mr Ayob, who were
also
invited to speak to Mono and M.. After the
visit
of the crisis committee there was, therefore, no
question
of third appellant's conduct, or inaction,
helping
to conceal the crimes committed by Richardson and
others or of
her intending to do so. The critical
question,
therefore, is whether between the time of her
return
from Brandfort and the visit of the crisis
committee
the third appellant became aware that the
assaults
had taken place or had acquired sufficient
knowledge
to found dolus eventualis on her part.
Reduced
to its essence the finding of the trial
Court
is that there were two possible sources of such
knowledge,
viz (i) information passed on to her by Mrs
Mabuza,
her daughter and/or her grandchildren and (ii)
her
own observations of the injuries sustained by the
complainants;
and that, despite her denials, it is to be
inferred beyond a
reasonable doubt that she had the
177
knowledge.
I
have carefully considered this line of
reasoning
and have come to the conclusion that it is ill-
founded.
There may well be grounds for suspecting that
third
appellant might have acquired such knowledge at
some
stage between 31 December 1988 and 9 January 1989
(probable
date of visit of crisis committee); but
suspicion
is not proof beyond a reasonable doubt. As I
have
indicated, third appellant's daughter was probably not on the
premises at the time. As regards Mrs Mabuza,
one
has to postulate that she herself acquired the
knowledge
(probably from S.B.M.) and that she
passed
it on to third appellant. As to both of these
postulates,
B.'s possible involvement in the assaults
could
have constituted an inhibiting factor. I do not
think
that the grandchildren, whose ages are not on
record,
can be taken seriously as potential informants.
The other
source of knowledge, third appellant's own
178
observation
of the injuries, is, in my view, equally
uncertain.
It is common cause that third appellant did
not
visit the back quarters of no 585 during the relevant
period.
On the one of two occasions shortly after the
assaults
(on 4 January 1989) when third appellant must
have
seen the complainants, viz the Mabuse funeral, they
were
dressed in track-suits and they danced and sang.
Apart
from Kgase's injured eye, there was evidently
nothing
to be seen. On the other occasion, the trip to Richardson's house to
work in the garden (on 5 January
1989),
there is no evidence to suggest that injuries were
obvious.
Nor do I think that any clear inference can be
drawn
from the evidence that third appellant saw Se.
washing himself
at the tap.
For
these reasons, I am of the view that the
evidence
falls short of establishing the requisite know
ledge
in regard to the assaults to render third appellant
liable
as an accessory after the fact, even on the basis
179
of
dolus eventualis. It is accordingly not necessary to
consider
the further problems as to whether mere inaction
could
in the circumstances found criminal responsibility;
and
as to whether third appellant's object in conducting
herself
as she did was to help the parties guilty of
assaulting
the complainants to evade justice. In regard
to
this latter problem, the question could arise as to
whether
her object was not to protect herself and, if so,
whether
this would exculpate her from criminal respons
ibility as
an accessory after the fact.
Third
appellant's convictions on counts 5 to 8
inclusive
as an accessory after the fact must conse
quently
be set aside. I turn now to the question of
sentence.
Sentence
First
appellant did not appeal against sentence
and
so his case need not be considered. Second
180
appellant's
appeal against her convictions having failed
in
respect of all eight counts, her appeal against the
sentences
imposed in respect of the kidnapping and the
assaults now
arises for decision; as also does the
appeal
against the sentence imposed in respect of third
appellant's
conviction on the kidnapping counts.
The
kidnapping in this case is of a very
unusual
nature. This is emphasized if one has reference
to
the precedents mentioned by the learned trial Judge in
his
judgment on sentence, viz
R
v Lentit
1950 (1) SA
16
(C);
S v Levy and
Another
1967 (1) SA
351
(W);
R v Long
(2)
1969 (3) SA 713
(R);
S
v Naidoo and Others
1974 (3)
SA 706
(A). In
the last-mentioned three cases the
kidnapping
was committed with the object of extorting
large
sums of ransom money. In each case a child was
involved, in
one case a mother and child. In these
cases
substantial prison sentences were imposed. In
Lentit
's
case, supra, no extortion was involved. A 17-
181
year-old
girl was the victim and she was removed from the
custody
of her parents and detained for about three
weeks. The object
of the kidnapping appears to have
been
relatively innocent and a fine of
â¤
20
was imposed.
In another
case,
S v F
1983 (1) SA 747
(0), the accused
kidnapped
a child aged 2 years and 10 months in order to
commit
an immoral act with her and detained her for about
40
minutes. On appeal his sentence was increased to
twelve
months imprisonment, half of which was suspended
on
appropriate conditions.
In the
present case the purpose of the
kidnapping
was - so it has been held - to remove the
complainants
from the manse where homosexuality was being
practised
so that they could give evidence of what was
happening
there and so that in this way a stop could be
put
to this evil. It is true that the kidnappers rode
roughshod
over the wishes of the complainants, but the
initial
kidnapping was not accompanied by violence. It
182
is
also true that some of the persons who carried out the
kidnapping
viciously and callously assaulted the
complainants
once they had arrived at no 585, but the assaults were not part of
the original kidnapping plan
and
formed the subject of separate criminal charges.
The
occurrence of these assaults should not, therefore, be allowed to
colour the original kidnapping or enhance
its
gravity. The assaults did, of course, provide an
additional
reason for those who had participated therein
to
extend the period of detention in order to prevent or
postpone
detection of their crimes; and this applies
specifically
to second appellant and Richardson, but not
to third
appellant.
Kidnapping
is always a serious offence since it
involves
deprivation of liberty, particularly freedom of
movement,
freedom to be where one wants to be, freedom to
do
as one wishes. The degree of seriousness of the
deprivation
nevertheless depends on the period of
183
detention,
the conditions of detention and the circumstances generally. In the
present case the
periods of
detention varied from about 2 days (Se.) to
about two weeks
(Mono and M.). The living
conditions
at no 585 do not appear to have differed much
from
those at the manse. Although the complainants were
generally
confined to no 585, this was not always so (e g
the Mabuse
funeral); and, in any case, they were
apparently
all unemployed and even life at the manse was
probably
for the most part uneventful and confined
largely
to the church premises. Apart from the initial
assaults
(and leaving aside the case of Se.) and apart
from
being confined, the complainants do not appear to
have
been maltreated in any way at no 585. Indeed, they
seem
to have been generally absorbed in the little
community
which lived in the outside rooms.
In his
judgment on sentence the trial Judge
referred
very briefly to the aim of the kidnapping in
184
this
case. This reference must be seen against the background of his
finding of an "alternative motive",
discussed
and overruled above. This alternative motive
is
a discreditable one and would render the offence
substantially
more serious than is actually the case.
The
sentences imposed for the kidnapping by the trial
Judge
are consequently vitiated by this incorrect finding
and
this Court is at large on the question of sentence.
In his
judgment on sentence the trial Judge stated the following:
"The
thrashings constituted distinct
crimes
for which separate punishments are to be. imposed. I shall not
duplicate the
punishment for the assaults by also
allowing
for them in the punishment for the kidnappings. Nevertheless, it is
important to recognise
that after the
assaults, the purpose for which the
victims
were held captive was no longer
merely
to give evidence of what they knew:
thereafter
they were held captive to give
185
'evidence'
in which they were to repeat
what
they had said under interrogation
whilst
being thrashed. As a result of the
thrashings,
therefore, the captivity
acquired
a new and more sinister dimension
which
must be taken into account at this
stage."
In
view of the Court' s finding that it has not been
established
that third appellant knew of the assaults prior to the visit of the
crisis committee, this factor
would
not seem to have any relevance in third appellant's
case.
As
regards the assaults, the trial Judge found
that second
appellant had actually participated
personally
in the severe thrashings administered to the
complainants.
As I have already indicated, the evidence
in
fact falls short of proving actual participation.
This
difference in findings makes it necessary for this
Court also
to determine punishment for the assaults
186
afresh.
For convenience I shall start with the third
appellant's
sentence on the kidnapping counts.
In
appropriate cases, the Court should always consider the possibility
of alternative sentences to imprisonment. After careful and
anxious
consideration I
have come
to the conclusion that this is such a case.
And,
in my opinion, a punishment consisting of a substan
tial
fine, coupled with a sentence of imprisonment suspended on condition
that, inter alia, the third
appellant
pay substantial amounts in compensation to the
surviving
victims of the kidnapping, would at the same
time
achieve a measure of social justice and fit the
crime. I have
no reason to believe that in this
instance
it would be futile to impose a fine and a
condition
for the payment of compensation because of inability on the part of
third appellant to pay these
amounts. The amount of the
compensation for the
wrongful
detention of the complainants cannot be
187
calculated;
it is at best an estimate and I consider
that
this Court has before it all the information
necessary
to make that estimate. There is one practical
problem
in this connection. I do not know the present whereabouts of Kgase,
Mono and M. or how easy, or
difficult,
it may be for the payment of the compensation
to
be made to them. Because of this I propose to order
that
the amounts in question be paid to the Registrar of the Witwatersrand
Local Division to be held by him until
payment
can be made to the complainant concerned; that
the
Registrar immediately take all reasonable steps
possible
to locate the individual complainants and to
effect
payment of the compensation to them; and that in
the
event of it proving impossible to achieve a particu
lar
payment within a period of three years, the amount in
question
be forfeited as bona vacantia to the State.
I
turn now to the position of second appellant.
As
regards the kidnapping, her culpability was in some
188
respects
more serious than that of the third appellant.
She
(the second appellant) actually led the expedition to
fetch
the complainants from the manse and set the general
tone
thereof. Whereas third appellant merely contem
plated
the possibility of the complainants being fetched
against
their will, second appellant translated this possibility into
reality. And second appellant proved
particularly
recalcitrant when it came to releasing Mono
and
M.. As regards the assaults, account must be
taken,
on the one hand, of the viciousness thereof and,
on
the other hand, of the fact that she did not per
sonally
participate. Nevertheless an effective sentence
of
imprisonment is imperatively called for. Having
regard
to the close interrelationship between the kid
napping
and the assaults I think it would be appropriate,
in
this Court, to take all the counts (both kidnapping and assault)
together for the purposes of sentence and
that an appropriate
punishment would be four years'
189
imprisonment.
In view, however, of her clean record
and
other personal circumstances two years will be sus
pended.
The
following order is made:
First
appellant's appeal against his conviction
on
counts (1) to (4) inclusive is dismissed.
Second
appellant's appeal against her convic
tion on counts (1)
to (8) inclusive is dismissed.
Second
appellant's appeal against her sentence
is
allowed in part, the sentences imposed by
the
trial Judge are set aside and there is
substituted
a sentence on all counts taken
together
of four years' imprisonment of which
two
years' imprisonment is suspended for five
years
on condition that she is not convicted of
190
any
of the following offences committed during
the
period of suspension: kidnapping or an
offence
involving violence to the person of
another
for which she is sentenced to a term of imprisonment without the
option of a fine.
(4)
Third
appellant's appeal against her conviction
cm
counts (1) to (4) inclusive is dismissed,
but
her appeal against her conviction as an
accessory
after the fact in respect of counts
(5)
to (8) inclusive is allowed and her
conviction
and sentence on counts (5) to (8)
are set aside.
(5)
Third
appellant's appeal against her sentence
on
counts (1) to (4) inclusive is allowed in
part,
the sentence of the trial Court is set
aside
and the following sentence is substi
tuted:
191
"(a)
A fine of R15 000 or in default of payment
thereof
one year's imprisonment; and 2
years'
imprisonment suspended for 5 years
on the following
conditions:
(i)
that third appellant is
not
convicted
of the crime
of
kidnapping
committed during
the
period
of suspension; and
(ii) that
third appellant pays to
each of
Kenneth Kgase, Barend Thabiso Mono and G.P.M.
("the complainants")
compensation in the sum of
R5
000 (i e R15 000 in all) in
accordance
with the requirements
of
par (b) of this order.
The
aforesaid compensation (totalling
R15
000) shall be paid to the Registrar of
the
Witwatersrand Local Division of the
Supreme
Court ("the Registrar") within 30
days
of the date of this order.
The
Registrar is to hold the aforesaid
compensation
until the individual amounts
of
R5 000 have been paid to each of the
complainants.
Immediately
upon receipt of the aforesaid
compensation
the Registrar shall take all
192
reasonable
steps possible to locate and
identify
the individual complainants and
to
effect payment of compensation to each
of them.
(e)
Should it prove impossible to effect
payment
of the compensation to one or more
of
the complainants within a period of
three
years after the receipt of such
compensation
by the Registrar, the sum or
sums
in question shall be forfeited to the
State."
M M
CORBETT
BOTHA
JA)
SMALBERGER
JA)
CONCUR
MILNE
JA)
EKSTEEN
JA)