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[1994] ZASCA 134
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S v Khala (441/92) [1994] ZASCA 134 (27 September 1994)
CG CASE NUMBER: 441/92
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
SITHEMBELE KHALA
Appellant
and
THE STATE
Respondent
CORAM:
JOUBERT, F H GROSSKOPF et VAN DEN HEEVER JJA
HEARD ON:
26 AUGUST 1994
DELIVERED ON:
27 SEPTEMBER 1994
J U D G M E N T
VAN DEN HEEVER JA
2
On 1 March 1990 in broad daylight Mr D Meadows was robbed at gunpoint by
a group of black men of his blue-grey Volkswagen Caravelle
Kombi, in
Dornfontein.
Three-quarters of an hour later an armed gang arrived
at Standard Bank in Germiston in this Caravelle. They threatened the bank
employees
with handguns and assault rifles, shouted instructions, took almost
R200 000 in cash as well as a wristwatch belonging to a Mr Sher,
and made
off.
On 28 March there was a repeat performance at the Nedbank Branch at the
coner of Fox and Simmonds streets in Johannesburg. This time
the booty taken was
R 102 051,90 from the bank, R200 from Mrs Moyce, Rl 879 in a brown school
suitcase from Mrs Gray, and a watch
from the Nedbank security guard. The robbers
arrived in the Caravelle which however now had new number-plates. They had been
carefully
chosen since they reflected the lawful number belonging to a vehicle
which in appearance matched this one,
3
stolen from Meadows. The robbers wore gloves, pulled down balaclavas as
they entered the bank, and knew exactly whom and what to look
for where.
Estimates of the time it took them to do what they had come for, ranged from
two-and-a-half to five minutes, after which
they rejoined the waiting driver who
drove off as they climbed into the vehicle.
Police patrolling in the
area, alerted by radio, hastened towards the bank. As fate would have it, the
oncoming Caravelle passed them
on the route they had taken. Sergeant Ludick
noticed that one of those in the Caravelle had a firearm in his hand. The police
car
turned around and a wild chase followed, until the Caravelle was held up by
a truck ahead of it which had stopped at a red robot
at the intersection of
Marshall and Nugget streets. Sergeant Pero had already fired a shot at the
vehicle. His fire was returned
by an occupant of the Caravelle. When it came to
a halt, men piled out and fled on foot northwards up Nugget street. Further
shots
were exchanged. A man subsequently identified as Geoff, as well as the
driver, who was bringing up the rear, were shot, fell, and
4
were arrested, but the others got away. According to police witnesses,
Geoff was carrying a bag and the driver a brown school suitcase
both full of
stolen money.
The Caravelle suggested that the same gang may have been responsible for
all three robberies. The driver stood trial alone in the
Witwatersrand Local
Division on a variety of counts arising out of these events. The other man
arrested after having been wounded,
Geoff, had subsequently succeeded in
escaping. The driver was convicted on only two of the eight charges laid, namely
counts 3 and
5. Count 3 related to the Nedbank robbery. Count 5 was a charge of
attempted murder, of Sergeant Pero: as Geoff fled, he had aimed
at and attempted
to shoot his pursuer, but fortunately for the latter Geoffs fire-arm had
refused. The driver was sentenced to 14
years' imprisonment for the robbery and
five in respect of attempted murder, the sentences to run concurrently. The
trial court however
granted leave to appeal, and I refer to the driver
henceforth as the appellant.
5
The record makes it clear that what motivated the grant of leave to
appeal against both the convictions and sentences imposed, was
the fact that the
trial judge had refused an application brought during the course of the lengthy
trial, that he recuse himself.
He considered it arguable that he may have gone
too far in his questioning of appellant; "and then the whole of the case has to
be
looked at in any case, I think, possibly".
Appellant is the general secretary of the trade union which calls itself
the Media Workers Association. He is clearly no unsophisticated
illiterate. He
pleaded not guilty to all the charges, raising alibis in respect of the robbery
of Mr Meadows and of the bank in Germiston.
These accounted for a good deal of
the long trial. He admitted inevitably - that he had driven the Caravelle from
which the gang
emerged to rob Nedbank and in which the robbers afterwards fled,
on the date on which he was arrested. Conviction was equally inevitable
unless
the defence he raised, that he had done so under compulsion, could
6
reasonably possibly be true.
Appellant's story of how he came
to be involved with the gang on that eventful day, may be summarized as
follows:
1.
He had parked
his BMW car in the basement of the Johannesburg Sun and was in the process of
removing the tape-deck from the dashboard,
intending to lock it in the boot,
when he was accosted by an armed man whom he later heard called 'Geoff and who
demanded the ignition
key. He handed it over but had another with an immobilizer
on the key-ring in the pocket of his windbreaker. Others joined Geoff.
Not only
did no one think to search the appellant for a possible weapon, but an argument
followed about what to do with him: whether
to lock him in the boot of his BMW,
or take him along with them. They "ultimately", he said, decided to use him as
their driver.
He was herded into the Caravelle, and ordered to drive it. Geoff
was deputised to guard him. and was the one who thereafter gave
him
directions.
2.
Following
Geoffs instructions, he was directed along a route
which
7
circled Nedbank, which he had to follow "four or three times" until one
of the gang said "Clear". He dropped off all except Geoff,
and stopped on the
corner of Main and Simmonds streets. Traffic banked up behind him. In the
rear-view mirror he saw a traffic officer
coming up on his motorcycle from
behind; who, as he passed the Caravelle, ordered him "Ry aan, ry aan". Geoff,
who was moving up
and down inside the vehicle, ordered him to turn into Main
street and stop. They remained there for about five minutes. Then the
gang
members emerged from the bank, running, some of them removing their balaclava
masks as they came. They climbed in at the open
sliding door of the Caravelle,
and he was ordered to return to where his BMW was parked. 3. The route he
followed was a direct one.
He denied the police version of a tortuous chase. He
saw an oncoming car with headlights on. It made a U-turn after it had passed
the
Caravelle and followed the latter. He thought it might be the police. He was
ordered to turn into Nuggett street, did so, and
deliberately moved left and
slowed down, wanting the
8
police to catch up with the Caravelle. At the robot there was a vehicle
stationary at the robot, behind which he stopped. People had
already started
shooting at the police from the Caravelle and police were returning fire. Some
of the passengers in the Caravelle
were leaving even before it had come to a
halt. He too got out and ran, in the same direction as the robbers. He received
two gunshot
wounds. He thought one had been caused by Geoff. The other, from the
police, hit him in the knee and he fell. He denied carrying
anything as he
ran.
He and Geoff were taken to the same hospital.
This
defence had been summarized by counsel in elaboration of appellant's "not
guilty" plea on the counts arising from these events.
Evidence of prosecution
witnesses incompatible with appellant's conduct having been that of a man acting
under compulsion, was mainly
that of the police who saw appellant running off
carrying part of the booty; and of Mr Dyke. He was in the banking hall waiting
for
a client when the robbers came in. He was ordered to lie down facing Main
street, and did
9
so. Through the glass wall there, he saw the Caravelle draw up. The only
person he saw in this vehicle was the driver, who climbed
between the two front
seats, opened the sliding door on the side, and climbed back into the driver's
seat. When the robbers came
out rounding the corner into Main street, they
climbed into the Caravelle which drove off without waiting for that door to be
closed.
Mr Dyke jumped up and made a note of the registration number of the
vehicle, and later gave this to the police. Pressed in cross-examination,
he
conceded that there might possibly have been someone other than the driver in
the Caravelle. The concession was valueless to appellant,
because of the rider
added, that such a person would have had to be bending down below the level of
the window, or, if moving around
in the Caravelle, doing so on his
stomach.
Appellant was the first witness for the defence, and did not fare well
under cross-examination, which stressed improbabilities in
his tale.
There obviously was no direct evidence to contradict his story of being
abducted from the basement of the Johannesburg Sun. He
10
admitted that that was a busy place. The improbability that a
professional gang able to plan as well as these did, would choose to
abduct him
from such place with no firm idea of what they proposed doing with him, was
pointed out to him by cross-examination. He
used many words without really
saying anything, despite attempts by the court to establish what he was driving
at. He at length came
up with various theories, each of which led to more
unanswered questions. The suggestion that the gang perhaps intended using his
BMW as a get-away car after the robbery, may have made sense had the BMW been
removed to some remote and safe spot. Otherwise, it
involved entering the
building basement where there were security guards on each floor and an
attendant at the boom where emerging
motorists pay for their parking. The risk
of being disturbed in any attempt to transfer their booty to and drive off in
the BMW would
have been considerable. The suggestion that they may have wanted
the robbery to look like an operation of the PAC since appellant
is a prominent
member of that organization, trips on
11
his evidence that there was an argument as to whether he should be locked
in the boot; and would leave him, after the robbery, either
as a potential
witness capable of identifying them, or a corpse; which would defeat the object
of that exercise. His evidence that
such an argument had occurred also makes it
clear that the abductors were not short of a driver. That raised the further
question,
why a gang as well-organized as this one should be prepared to use a
recalcitrant and/or frightened stranger to drive a vehicle to
which he was quite
likely unaccustomed, on a potentially dangerous trip, without their having the
slightest idea of the quality of
his driving skills or the strength of his
nerves.
As regards Mr Dyke's evidence relating to what happend at the Caravelle
while the robbers were busy inside the bank, appellant did
not under
cross-examination suggest that this witness was lying. He conceded that Mr Dyke
was possibly correct, that appellant had
opened the sliding door. Asked where
Geoff was when he himself did so, appellant replied:
12
"Geoff was inside the vehicle but I cannot say specifically where he was
seated in the vehicle, whether it was in the front or wherever
it could have
been. I cannot locate him."
It was also put
to him that the advent of the traffic officer created an
opportunity
for him to escape from Geoff, which he denied: he obeyed
the traffic
officer's injunction to move on because he was concerned that
Geoff
might do the officer as well as appellant himself harm. (That
again
would raise interesting questions, such as whether he could
have
thought for a moment that Geoff would risk shooting either of
these in
public and in those circumstances, in the process lumbering himself
with
a corpse in the driver's seat of the Caravelle in which his
colleagues
expected at any moment to leave the scene.)
Appellant could give no acceptable explanation why, when
the
Caravelle was brought to a halt by the vehicle held
up by the robot at the
intersection, he fled in the same direction as the robbers. The best
he
13
could offer, was that he was confused, and saw everyone running in that
direction and accordingly followed suit. This, in the face
of his claim that he
had deliberately moved in behind the stationary vehicle and halted abruptly, to
catch his abductors by surprise
and create an opportunity for himself,
forewarned, to escape them. Pressed on details of his conduct and that of the
other erstwhile
occupants of the Caravelle at that stage, his evidence was
evasive and riddled with phrases such as "I think", and "if I remember
it well".
He however ultimately conceded that Geoff left the Caravelle before he himself
did so and that he was the last out. Appellant's
original inference that it was
Geoff who inflicted a wound on appellant, grew into a firm belief during the
course of appellant's
testimony. Under cross-examination he admitted that the
same attorney had visited both him and Geoff in hospital on the day they
had
both been arrested.
14
After he had been cross-examined at length and re-examined, the Bench
asked him questions. During the course of this, the defence
asked the trial
judge to recuse himself. The application was refused. I return to it later.
Thereafter appellant returned to the
witness box, and called two defence
witnesses. The first of these attempted to explain why the fact that the same
attorney had visited
appellant as well as Geoff in hospital, should not lead to
the inference that appellant was voluntarily associated with this robber.
The
evidence on this issue involves a concatenation of coincidences as well as an
excess of caution on the part of the relevant witness.
He was Mr Hlatswayo, the
assistant general secretary of the Media Workers Association in Johannesburg. He
and appellant were supposed
to have attended a meeting with potential donors
that morning. Appellant had not arrived, although inquiry revealed that he had
left
home earlier. A person who had witnessed the shooting in
15
Nuggett street came to Hlatswayo in his office and reported that he had
seen someone there who looked like appellant. Hlatswayo went
along, saw
appellant lying bleeding, surmised that he might be taken to the Hillbrow
Hospital, went there and discovered that appellant
was in ward 29. Police came
out of the ward as he arrived at its door, in the company of a man they referred
to as "prokureur". Hlatswayo
then asked this attorney, who had been to see the
other injured man, who was his client, to act on behalf of appellant also, quite
fortuitously and - it was implied - not because their interests ran parallel.
Cross-examination created insurmountable hurdles for
Hlatswayo in trying to
retain any semblance of credibility or undermine the inference that this prompt
visit by the attorney to both
wounded men suggested a pre-existing link between
appellant and Geoff.
The police evidence, which was not damaged by
cross-
16
examination, that both Geoff and appellant had been carrying loot as
they
left, would have been sufficient in itself to put paid to
appellant's
defence. Appellant's counsel sought to nullify this by
calling Mr van
Wyk, a journalist whose report of the incident in
Nuggett street had
appeared in a newspaper. According to that,
"(het) konstabel Scholtz ... die bestuurder langs die bussie in die been en
rug geskiet. ... Sersant Ludick en konstabel Pero het
op die vlugtende rowers
geskiet en een wat met 'n handtas probeer weghardloop het, in die bolyf
getref.
According to this report,
therefore, it was not appellant who had taken
charge of the brown suitcase. Since Van Wyk probably spoke to
the
police at the scene, it was suggested, they then spoke true and were
now
fabricating this damning piece of evidence against appellant. Quite
apart
from other considerations, however, Mr van Wyk told the court that
he
had no independent recollection of the incident, usually spoke to
whoever
17
could give him information on such occasion, and put together his own
version by patching together bits and pieces obtained from various
sources.
Accepting that Van Wyk did speak to i.a. the police at the scene, there is as
little assurance that he heard them aright
or relied on what they had said, as
one can be assured that his copy escaped the attention of a sub-editor
unscathed. The court a
quo accepted the evidence of the three police witnesses
and there is no reason to differ from its assessment as to their
reliability.
It is unnecessary to analyse further aspects of appellant's tale, grossly
improbable from beginning to end, and the conflicts between
his evidence and
that proferred by the state. The court a quo was correct in classifying
appellant's story as "bizarre". It hardly
merited the intensive, wide-ranging
and destructive cross-examination to which it was subjected by Mr
Sheer.
18
The conviction on the robbery charge led inevitably to conviction on the
count of attempted murder. It was clear before the Caravelle
came to a halt,
that the gang were prepared to shoot in order to attempt to escape, since shots
had been fired at the police while
the motor chase was still on the go. When
everybody emerged from the Caravelle, appellant not only did nothing to indicate
that he
dissociated himself from the robbers and their actions, but followed
them carrying part of the booty. So although he was not himself
armed, he was
still participating in their common purpose to perfect what they had pre-planned
and executed so far.
That brings me to the application which was brought during the course of
the trial, for the recusal of the trial judge.
The principles underlying such an application are not in dispute. They
have recently been dealt with by this court in
Council of
Review.
19
South African Defence Force and Others v Mönnig and Others
1992 (3) SA 482.
and
BTR Industries SA (Ptv) Ltd v Metal and Allied Workers'
Union
[1992] ZASCA 85
;
1992 (3) SA 673.
The exceptio recusations should succeed where it is
based on some financial or personal connection or interest, or conduct outside
the walls of the courtroom, on the part of the decision maker which could
reasonably create the impression of bias on his part. An
applicant's suspicion
of partiality must be one which might reasonably be entertained by a lay
litigant. The test to be applied is
an objective one. The hypothetical
reasonable man must be viewed as if placed in the circumstances of the litigant
raising the exceptio.
The circumstances of the litigant complaining
of the conduct of the judge during the trial itself, differ materially from
those of
one who relies on outside factors which he cannot judge on the strength
of personal observation - factors which raise questions such
as: Could senior
Defence
20
Force officers be unbiassed in judging an attack on the legality of
actions
and policies of the Defence Force? Or the President of the
Industrial
Court, in a lengthy dispute before him between labour and
management,
be unbiassed despite having in mid-litigation
participated in a seminar
arranged by management's industrial
relations consultants and in which
management's lawyers all
presented papers? Or more mundanely, would
the magistrate be
prepared to make an adverse credibility finding against
an important state witness if that witness is his own wife? - merely
as
examples. Schreiner JA pointed out the differences between the two
in
R v Silber
1952 (2) SA 475
(A) at 481C-H, a matter similar to
the
present one in that the application for recusal was not made at the
outset
of the trial but when it was well on its way. There too
"the grounds relied upon for suggesting bias were not facts outside the
course of proceedings such as are ordinarily put forward as
reasons why the
judicial officer in question
21
should not try the case. The grounds related purely to what had happened
in the course of the trial. Neither counsel has been able
to find any reported
case in which an application for recusal has been made in the course of a trial
on the ground that the judicial
officer has shown bias by his conduct of the
proceedings. And this is not surprising, since the ordinary way of meeting any
apparent
bias shown by the court in its conduct of the proceedings would be by
challenging his eventual decision in an appeal or review. Bias,
as it is used in
this connection, is something quite different from a state of inclination
towards one side in the litigation caused
by the evidence and the argument, and
it is difficult to suppose that any lawyer could believe that recusal might be
based upon a
mere indication, before the pronouncement of judgment, that the
court thinks that at that stage one or the other party has the better
prospects
of success. It unavoidably happens sometimes that, as a trial proceeds, the
court gains a provisional impression favourable
to one side or the other, and,
although normally it is not desirable to give such an impression outward
manifestation, no suggestion
of bias could ordinarily be based thereon. Indeed a
court may in a proper case call upon a party to argue out of the usual order,
thus clearly indicating that its provisional view favours the other party, but
no reasonable person, least of all a person trained
in the law, would think of
ascribing this provisional attitude to, or identifying it with, bias".
22
S v Rall
1982 (1) SA 828
(A) sets out guidelines to ensure that in
seeing that justice is done the judge also ensures that justice is seen to be
done. It
is unnecessary to repeat them here. The question is whether the trial
judge's questioning of appellant strayed outside of those guidelines
at all and
if so, could reasonably create the appearance, not at some passing stage in the
course of the trial but in making an overall
assessment, that his approach to
the defence evidence was not objective and impartial.
The record shows that appellant was not put off his stride by any
questions put to him by the Bench. And in the judgment his demeanour
in court
was not faulted. The record creates an overall impression of patience, care and
even-handedness on the part of the trial
judge. He made copious notes, often
holding up the proceedings to enable him to let pen keep pace with spoken words,
and inviting
counsel to confirm the
23
correctness of what he was recording in paraphrased form. When Mr Sheer
put adverse inferences which he threatened in due course to
argue, to defence
witnesses, he was on a number of occasions pulled up by the Bench for flaws in
his logical process.
What triggered the application for recusal, was the questioning of
appellant by the judge at the end of appellant's testimony. Some
of the
questions led nowhere: appellant merely repeated what he had said before, and
satisfied the curiosity of the judge about the
workings of the immobilizer on
the keyring with a spare key for the BMW which remained in appellant's pocket.
Then the questions
moved on to the events in Nuggett street after the Caravelle
had stopped. Appellant had given various versions on various occasions
about
what - if anything -had happened between himself and Geoff immediately before
appellant fell, having received two gunshot wounds.
He at no stage said
that
24
Geoff had shot him, merely that he believed this to have occurred; or
that
one of the abductors had done so. This did not tie in with the
police
evidence. The court questioned him as to why he had not done
almost
anything other than follow the robbers who had abducted him;
more
especially since Geoff of whom he was particularly frightened,
was
immediately ahead of him and between him and the rest. It was this
line
of questioning that led to the application for recusal:
"... why didn't you, when you saw these people running away ahead of you,
why didn't you run just past any two or three cars and stand
there and put your
hands up? - There was cross-fire and I did not (intervenes)
No, there was not any cross-fire, sorry, there was not any cross-fire
there. -- There were shots, that I could hear.
Shots had been fired, exchanged between the police -one shot from the
police which hit, Pero hit the body of the Caravelle. That was
after there had
been fire through the side door of the Caravelle. The Caravelle came to a stop,
then there was no firing. - No, but
that is the police version and it is like
the court is accepting that as absolute.
Yes. -- I have my own version.
25
Well, deal with it on the basis that the court accepts the police
evidence to the effect that these people or the people first to
leave the
Caravelle had already reached a place somewhere near halfway up the block when
you and Geoff was still fairly close to
the pavement - they were well ahead of
you. -- Yes, I see .. (intervenes)
15 on Ludick's estimate or the
draughtsman's estimate, I do not know whose it is, 15 paces ahead of Geoff.
— Yes, what I am
saying is I could hear the shots at that time. Which
direction they came from I cannot say.
There is no evidence other
than your evidence that there was cross-fire going on at the time when you
started to run away. —
Because 1 am the only one here against the police
evidence.
And the other thing is this, you see Geoff running with the bag, red bag
which you must have seen him or somebody else bringing into
the Caravelle when
you left, before you departed from Main Street where you had waited. Did you see
somebody arrive with a bag like
that? -- No, all I know is that they were
carrying things. Maybe that bag was also there, I do not remember.
Yes, there he is carrying the bag and he has got his back towards you and
you were four paces behind him, you see there the robber
is going with his
spoils.
MNR. BAM
: Edele, met die grootste respek, ek is nou in 'n baie
moeilike posisie maar ek voel my verplig om op hierdie stadium dit op rekord
te
plaas dat ek moet beswaar
26
maak teen die vrae wat die agbare hof stel.
HOF
:
Hoekom? Hoekom, meneer?
MNR. BAM
: Met die grootste respek,
edele ..
HOF
: Hoekom?
MNR. BAM
: Omdat dit
argumentatief is, edele, in die
eerste plek en in die tweede plek is
daar sekere
veronderstelings wat gemaak word deur die agbare hof
in
hierdie kruisondervraging. Met die grootste respek sê ek
dit, van die beskuldigde.
HOF
: Nou ja toe, het jy klaar gepraat?
MNR. BAM
: Soos dit u behaag.
HOF
: Nou ja goed, now you can answer my questions. On
the supposition that the police evidence is accepted that the
leaving occupants of the van had left a few seconds before
you did and were well up in Nugget Street and the last one
to leave before you did was Geoff and that he had also got
ahead of you by about four paces running north in Nugget
Street, you could see those people running up there in that
street. Why didn't you turn around and run in some other
direction, any direction of your choice? -- Like I indicated
earlier on firstly 1 was confused and secondly, 1 wanted to
run for shelter. My safety was at stake here. That was my
first consideration. And seeing people running in a
northerly direction I then found myself also running in that
direction.
Did you then see them running in a northerly direction? -- Yes.
27
Well what makes you feel like also running in a northerly direction? —
Because everybody is going in that direction so I felt
that I could find shelter
somewhere here and also that I was confused.
Were you following them to get shelter? Did you think they would give you
shelter or show you shelter? — I was also only running
for a safe place,
wherever I would find that safe place.
But you were running towards the people that abducted you? — Not only
them but all the other people were running in that direction,
even the
bystanders were also running in that direction.
Anything else you would like to say about this point? — Yes, on a
separate point m'lord, not this one"
and
appellant then went on to complain that certain documentary exhibits
not relevant to this part of the trial, had been forged; after which
the
court adjourned for the day.
When it was resumed, the application was formally
launched.
During the lengthy debate (all of which was
recorded and in which the
judge took an active part), it appeared
that the judge had been under the
28
impression that there was no police evidence at all about shooting by
the
police while the appellant was still in the intersection. The
judge had in the meanwhile gone through his notes with a fine comb and
discovered that his impression had been wrong. He said, i.a.,
"I should not have said the words, (I) accept what
the
police say, 1 should have said the words 'the undisputed evidence of the
police was ...' which would have more conveyed what I said.
But then I would
have been wrong, because I would have overlooked this one
sentence".
Counsel contended that the court
had challenged appellant, and more than
once, on the basis that the police evidence was acceptable and his
not,
leading to appellant's believing "that there is no hope of a fair trial
with
this sort of thing being put to him". The learned judge
commented:
"Well, if we had sat later and we had looked up the evidence or played back
the record, the position would have been dealt with there
and then, because I
would have said
1 am wrong."
29
The copious quotation makes it clear that the thrust of the questioning
by the Bench was to give the appellant every opportunity to
explain pr/ma facie
inexplicable conduct. Any possible objection there could have been to its tenor,
was overcome when the judge
explained what he had intended to say, and conceded
that he had been wrong in missing a sentence in the evidence of Scholtz. An
apprehension
of bias based on this line of questioning would not have been a
reasonable one. Cf
S v Radebe
1973 (1) SA 796
(A),812F-H; and, by
analogy,
Martin v Durban Turf Club and Others
.
1942 AD 112
, 134.
Mr Bam also argued that an earlier question put to appellant: "Were you
following them so that they could lead you to a safe place?"
conveys blatant
scepticism of appellant's testimony. In context it is clear that the judge was
merely repeating what appellant himself
had said a moment earlier; which he also
did in the passage just quoted.
30
There were other passages complained of which relate to
earlier
questioning also on detail of events after the
Caravelle had stopped at the
Nuggett street intersection, which
undermine rather than support the
application. Under
cross-examination appellant tentatively and then with
greater
conviction as he went on, had said that he had deliberately pulled
in behind the parked vehicle at the robot to create an opportunity
for
himself to escape from his abductors. He had formed the plan to do
so
when he saw the police, who
"were at that time already alert, so that was an opportunity for
me.
Why? -- Because if I take a chance trying to run out of the vehicle as
the shooting had already started, two things could happen.
1 can run to the
police, provided they had already realised that I am innocent and if that does
not happen I would also get injured
whilst trying to run away, shot while trying
to run away.
COURT
: Did you think of that? --I think I did think about
it.
31
Let me just understand this. At what stage did you jump out of this
vehicle? -- After the police had made a U-turn and we were now
facing the same
direction.
I jumped out after I had seen that the police had made a U-turn? --
Yes.
And were chasing us,
chasing the Caravelle? — Yes.
The Caravelle. But I meant can you tell me when you left the vehicle in
relation to the other people in the car? — I do not
recall when.
Well, was your plan to, although Geoff was sitting there in front with a
firearm, was it your plan to jump out the moment that your
car came to a stop? -
Yes and when the police were already quite close.
Yes, and it was your plan to take a chance, to take the risk that Geoff
might shoot you when you were getting out of the vehicle?
—
Yes.
That was your plan? -- Yes.
And is that what happened? --It
happened.
So Geoff was still sitting in the seat when you jumped out? -- If I remember
well, yes.
Well, do you know whether any of
the others had got out before you? — I am saying this subject to
correction but 1 believe that
they had already started jumping out". In the
light of appellant's claim that he had deliberately tried to create an
opportunity to escape and the qualification he added relating to
potential
32
dangers, there can be nothing improper or irregular in trying to
discover
what use if any he made of that opportunity.
That applies also to Mr Barn's complaint that it was improper
of
the court to put pressure on appellant to commit
himself as to the number
of persons who had been in the Caravelle
and the order of their going
when the vehicle was brought to a halt
at the Nuggett street intersection,
when he said that he did not know. The passage he highlighted
reads:
"Well, give me an idea? You must have known, you saw these people board the
Caravelle after the robbery, you were waiting behind the
driver's wheel and you
could see them coming in. You must know how many people there were in the
Caravelle? You also saw them, 1
think, in the wing mirror, walking on the
pavement before they went into the bank and you also saw them in the parking
garage. How
many people were there? How many robbers were there? — 1 think
there were five or six."
There is nothing
unfair about the question, which recounts aspects of
appellant's own evidence which makes an "1 don't know" answer no
33
answer at all. In context, the question was one that demanded to
be
asked. It was preceded by woolly vagueness in appellant's replies
to Mr
Sheer's probing his motivation for running after the
robbers:
"...I think it was that everyone was running into that direction, robbers
and those that were not robbers, as well as bystanders.
They were all running in
that direction. I think also I ran in that direction in that
confusion.
Did you see them running up the
road? — Who?
The robbers? --I think I did see them, I do not
recall.
You saw the police stop their vehicle and you saw the police chasing
after you? -- I did you (sic) see the police when they were running
after
me.
COURT
: Just a minute, I do not follow. There is something here
that - I do not want to become confused. You say you saw the others running?
— Yes.
Where were they running in relation to you? -- Are we talking now about
the direction or the distance? I do not know what is being
referred to.
You take any time you like; tell me what you saw? What was happening at
the time when you saw them running? - It seems that 1 saw
them running away into
the direction in which I was.
Well, tell me, were they running ahead of you or were they running behind
you? -- They were ahead of me.
34
How many were ahead of you? — I do not know." There can be no
possible suggestion of impropriety or irregularity in the passages
challenged,
per se, and even less taken in proper context.
Mr Bam also stressed other passages which appear earlier in the record.
The first of those to which he referred us, records questions
put to appellant
by the court which interrupted Mr Sheer's cross-examination, on the issue
whether appellant had or had not opened
the sliding door of the Caravelle when
it stood parked in Main street waiting for the return of the robbers. Mr Sheer
had reminded
appellant that he had earlier said that he did not recall who in
fact opened the door. Appellant replied with a question: "At what
stage?" and
the judge repeated Mr Sheer's question. That the reply the accused then gave led
to further questioning is hardly surprising
since he said
"I said, if I remember well, the door stood ajar.
I
35
furthermore said that if Mr Dyke alleges that I opened the
door further - if that is what he says - I will not dispute it."
The court was understandably curious as to why, if the door was ajar,
not
wholly closed, so that the robbers emerging from the bank would
have
been able to open it further themselves, it was necessary for
appellant to
do so. Appellant was also entitled to the opportunity
afforded him to try
to explain why he could not have escaped on that occasion,
whoever
opened the door of the Caravelle: the suggestion being that if Geoff
had
done so, appellant could have got out at the driver's door while Geoff
s
back was turned. If it was appellant who had done so on Geoffs
instructions, could he not have got out at the sliding door
himself?
Appellant's replies given to the questions put, were vague,
ambiguous,
unsatisfactory, larded with "maybe", "if", "I think", "1 do not
remember".
The final question put to him was -
36
"Now, isn't the position this am I being fair or unfair to you if I say,
that you are not clear at all about what you call 'the door
issue?' I mean,
clear insofar as your recollection is concerned? -- Yes, this door issue
confuses me, I do not remember it
well."
The court had not succeeded in
clarifying what appellant's counter was
to the evidence of Dyke.
There was in my view nothing improper in the
court's attempt to try
to obtain such clarity. The suggestion that the
questioning amounts
to cross-examination and displays bias against
appellant, has no merit.
After the application had been refused appellant returned to
the
witness box. The defence witnesses already referred
to, viz Van Wyk
and Hlatswayo, were then called. Arising out of certain aspects of
the
defence case, Mr Sheer sought leave and was permitted to recall
some
of the state witnesses and the trial ambled on until eventually
the
appellant was convicted and sentenced.
37
Mr Bam tried to make something of the fact that the court
had
reminded Mr Sheer that he was entitled to call
evidence in rebuttal of
new matter which had been proferred in the course of the defence
case.
But
sec 186
of the
Criminal Procedure Act No 51 of 1977
entitles
the
court itself to call witnesses and obliges it to do so
"if the evidence of such witness appears to the court essential to the just
decision of the case".
In short, appellant
made out no case for the recusal of the judge, and on the record his convictions
were inevitable.
That leaves the question of the sentences
imposed.
The trial court did not misdirect itself in any
way, nor can it be said that appellant was treated so severely that that in
itself
would entitle this court to interfere. Appellant expressed no remorse
since he never acknowledged that he had sinned. On all the
evidence he did so
from
38
greed, not need. He had an adequate income, money in the bank, a BMW, and
had had opportunities not afforded many of his compatriots.
Privilege should be
accompanied by commensurate responsibility. Although he was a first offender,
the offences he participated in
constituted an attack on orderly society,
planned with military precision, which that society is not called upon to
tolerate with
much compassion. Some he did receive, in that the sentences
imposed were ordered to run concurrently.
The appeal is dismissed.
L VAN DEN
HEEVER JA
CONCUR:
JOUBERT JA) F H GROSSKOPF JA)