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1994
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[1994] ZASCA 189
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S v Walus and Another (585/93,586/93) [1994] ZASCA 189 (30 November 1994)
REPORTABLE
CASE NO 585/93
586/93
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter
between:
JANUSZ JACUB WALUS First appellant (accused 1
in the court
a quo)
CLIVE JOHN DERBY-LEWIS Second appellant (accused 2
in the court a quo)
and
THE STATE Respondent
CORAM: Hoexter, Botha,
E M Grosskopf, Eksteen et Howie JJA
HEARD: 7 November 1994
DELIVERED: 30 November 1994
JUDGMENT
HOEXTER, JA
2
HOEXTER, JA
In the Witwatersrand Local Division the first and second
appellants, together with the second appellant's wife ("Mrs Derby-Lewis"),
were
charged jointly with the commission of the following crimes:-
Count 1
: The murder of Mr Martin Thembisile Hani ("the deceased").
Count 2
: A contravention of sec 18(2) (a) of the Riotous Assemblies
Act 17 of 1956 by conspiring to murder nine persons (including the deceased)
whose names appear on a list appended to the indictment.
Count 3
: A contravention of sec 1 of the Arms and Ammunition Act 75 of
1969 by the unlawful possession of a 9mm Z88 pistol no P6-101368.
Count 4
: A contravention of sec 36 of the Arms and Ammunition Act 75
of 1969 by the unlawful
3
possession of five rounds of 9mm ammunition.
The trial was heard by a
court consisting of Eloff JP and two assessors. Each of the three co-accused
pleaded not guilty on all counts
and each was represented by his or her own
counsel. At the close of the State case the first appellant closed his case
without adducing
any evidence whatever. The second appellant elected not to give
evidence himself but called to testify on his behalf Mr T F H Wolmarans,
an
expert in ballistics, and íVlr A Czernalow, a long-standing friend of the
first appellant. Mrs Derby-Lewis testified in
her own behalf.
At the end of
the trial Mrs Derby-Lewis was acquitted on all counts. On count 2 (the alleged
conspiracy to murder nine persons) the
first and second appellants were
acquitted. The first appellant was further acquitted on count 4 (the illegal
possession of five
rounds of 9mm ammunition). For the rest the trial court
recorded the following unanimous verdlcts of guilty. On count 1 both the
first
and the second appellants were found guilty of the murder of the deceased. On
count 3 both the first and the second appellants
were found
4
guilty of the illegal possession of a 9mm Z88 pistol. On count 4 the second
appellant was found gullty of the illegal possession of
five rounds of 9mm
ammunition.
In respect of the aforesaíd convictions the following
sentences were imposed. On count 3 the first appellant was sentenced
to
imprisonment for five years. In the case of the second appellant counts 3 and 4
were taken together for purposes of sentence and
a sentence of imprisonment for
five years was imposed. On count 1 each of the first and second appellants was
sentenced to death.
The first appellant appeals only against the sentence of death imposed upon
him. The second appellant appeals both against his conviction
for murder and the
death sentence imposed upon him. With leave of the trial judge the second
appellant appeals also against the sentence
of five years imprisonment imposed
in respect of his conviction on counts 3 and 4.
At the time of his death the deceased, who was widely known as "Chris" Hani,
was the Secretary-General of the South African Communist
Party
5
and an executive member of the Afrlcan National Congress. He lived in a house
in Deon Street in the suburb of Dawn Park in Boksburg.
A short driveway
separated his garage from the street. At about 10 am on the morning of Saturday
10 April 1993, and in the driveway
of his home, the deceased was shot to death.
Parked in the driveway at the time of the kllling were two motor cars. In front
of the
deceased's garage stood a Toyota. Just behind the Toyota was a red Ford
Laser hatchback ("the red Ford") bearing the registration:
PBX 231T. Immediately
after the shooting the deceased's attacker got into the red Ford and started
reversing out of the driveway.
The shootlng of the deceased and the imminent
departure of his attacker were observed by a passing motorist, Mrs M J Harmse.
In a
remarkable display of self-possession Mrs Harmse stopped her own car and
reversed it far enough to obtain a closer view of the red
Ford's registration
number. Trying to memorise the registration number she drove at once to her
nearby home from where she telephoned
the flying-squad. She gave the red Ford's
registration number as: PBX 237T. In the event her information to the police
proved to
6
be sufficient. Armed with Mrs Harmse's description of the assassln's vehicle
two policemen in a patrol car were able, within minutes
of the killing and in a
locality some six kilometres distant from the deceased's home, to spot the red
Ford and to make it pull over
and stop by the roadslde.
The driver and sole
occupant of the red Ford was the first appellant. On the rear seat of his
vehicle the police found a carry-bag
containing a Z88 pistol. Behind the
driver's seat there was found a silencer. The first appellant was taken into
custody. At the
trial the pistol was handed in as exh 2 and the silencer as exh
4.
The killing of the deceased was painstakingly investigated by the South
African Police, and at the trial elaborate forensic evidence
was comprehensively
led by the prosecution. The evidence pointing to the first appellant as the
deceased's killer was carefully reviewed
in the judgment of the trial court and
need not here be recapitulated. Suffice it to say that in the light of all the
evidence it
is incontestable (and was properly conceded so to be by the first
appellant's counsel) that the first appellant was the deceased's
7
assassin and that exh 2 was the murder weapon. It is common cause that the
first appellant was properly convicted of murder.
The first appellant, whose age is given in the indictment as 38 years, is an
immigrant from Poland who has lived in South Africa for
some ten years. He had
business interests in Qwa Qwa but he was also the occupier of a flat in
Pretoria. According to the defence
evidence the appellant found the yoke of
Communist rule in Poland Intolerable. He and his family suffered much
deprivation and frustration.
It was in order to escape from the rigours of life
under a Communist regime that the first appellant settled in South Africa which
he saw at the time as a political haven. He became a South African citizen. His
political views were strongly rightist. The political
changes in South Africa
heralded in February 1990, and thereafter put into effect, appalled the first
appellant and outraged his
staunch anti-Communist sentiments. He was friendly
with his two co-accused. In the course of her evidence Mrs Derby-Lewis told the
court that the first appellant did not have many friends; and that she and her
husband "were probably his closest friends." They
called him by
8
the familiar name of "Kuba".
The second appellant, whose age is given in
the indictment as 57 years, lived wííh his wife in a house in a
suburb of
Krugersdorp. A former Nationalist member of the Transvaal Provincial
Council, the second appellant has been a member of the General
Council of the
Conservative Party since 1982. In May 1987 he became a nominated member of
Parliament for the Conservative Party.
In September 1989 he was nominated to the
President's Council where he served until that body's demise on 20 June 1993.
The first
appellant and Mrs Derby-Lewis, so the trial court correctly found,
"were both prominent in right-wing politics."
Mrs Derby-Lewis is a research journalist. She is the editor of the English
section of a weekly newspaper called "Die Patriot" and
the press officer for the
Conservative Party. She is a prolific writer on political affairs. The attitude
of Mrs Derby-Lewis towards
the deceased and what she regarded as his
revolutionary role is sufficiently mirrored by the following brief excerpts from
some of
her articles, written both before and after the murder of the
9
deceased, to which reference was made in the course of her testimony. For
example -
"Hani's Communist Party virtually controls the African National Congress."
"His [de Klerk's, the then State President] impotence gave an enormous kick
start to the ANC/SACP/MK alliance's revolutionary plans
to seize power, and they
are well on their way to getting it if not stopped in their tracks."
"The hysterical press eulogies which mushroomed after the death of S.A.
Communist Party boss Chris Hani last week sickened many South
Africans ... It is
incumbent upon those who are not ignorant of Hani's past to reveal the harsh
mettle of the man, and to place on
record what he stood for, what deeds he
perpetrated and what he had in mind for South Africa. Chris Hani made no bones
about his
use of terror and murder as tools of the revolution. He was 'a man who
enjoyed his atrocities' according to a seasoned SA political
commentator, the
ANC's 'deadliest killer'".
"Hani's death removed an
important roleplayer from the ranks of those who would see a communist
Azania."
10
Exh 2 is an unlicensed firearm. The facts of this case provide a sombre
reminder that one of the scourges of South African soclety
is trafficking in
unlicensed firearms. The train of events which culminated in the killing of the
deceased finds its genesis in a
theft committed almost three years earlier.
During April 1990, and at Pretoria, a quantity of firearms was stolen from the
South
African Air Force. One of the stolen firearms was exh 2.
During 1990 a
friend of the second appellant, Mr S Venter of Krugersdorp, acquired an
unlicensed handgun from one'Taylor. Early in
1993 the second appellant inquired
of Venter where he might obtain an unlicensed firearm. Venter agreed to let him
have the unlicensed
firearm which he had obtained from Taylor. The second
appellant was friendly with Mr L G Durant and his wife who lived in Boshoff
Street, Krugersdorp. The second appellant instructed Venter to deliver the
handgun, concealed in a parcel, to the Durants with a
message that the parcel
contained a pullover for the second appellant. The second appellant further
informed Durant that his pullover
would be delivered to the Durant home. Venter
carried out his illicit mandate. He
11
concealed the handgun within the folds of a pullover which he delivered at
her home to Mrs E E Durant. Venter and both Durants were
witnesses for the
prosecution. Venter told Mrs Durant that the pullover belonged to the second
appellant. Mrs Durant later unfolded
the pullover and discovered the concealed
handgun. She told the court that it resembled exh 2. Having rewrapped the
handgun in the
pullover she delivered it to the second appellant at his home on
the following day. Mrs Durant fixed the date on which Venter delivered
the
parcel to her as 24 February 1993.
The scene shifts from Krugersdorp to Cape Town and the tale is taken up by
two further State witnesses: Mr F H Darroll and Mr Gavin
Smith. On or about 22
March 1993, and at Cape Town, the second appellant handed to Darroll a Z88
pistol with a request that he should
have a silencer fitted to it. Gavin Smith
has a gunsmithery at his home in Tokai. Darroll took the Z88 pistol to Smith who
fitted
a silencer to it. Smith handed to Darroll not only the Z88 pistol and a
silencer, but also a cap to be screwed onto the muzzle of
the pistol; and five
rounds of subsonic 9mm ammunition. All the aforesaid articles
12
Darroll duly delivered to the second appellant at his apartment in Acacia
Park.
Smith confirmed that part of Darroll's version which related to him.
Smith's further evidence is of crucial Importance. It is to the
effect that the
silencer which he fitted to the pistol is exh 4; and that the pistol to which he
fitted it is exh 2. He testified
that in his entire career as a gunsmith he had
only once fitted a silencer to a Z88 pistol; and that this was the occasion. He
positively
identified exh 4 as a silencer of his own manufacture. He explained
to the trial court how he had machined the barrel of exh 2 in
order that its
muzzle might receive the cap or thread protector which screwed onto it. He said
that the metal cap was one of his
own, and he pointed out in what respects he
had modified it. Smith was subjecíed to a pertinacious cross-examination
from
which he emerged unscathed. He impressed the trial court as an honest and
reliable witness and it accepted his testimony. That finding
was not challenged
before us.
The State witness Mrs Elizabeth Motswane was a domestic worker in the service
of the second appellant and Mrs Derby-Lewis. The first
appellant
13
was known to her; and she testified that she had heard Mrs Derby-Lewis
address him as "Kuba".
On 6 April 1993, at about 8 am in the morning, Mrs
Motswane found the first appellant in the kitchen with Mrs Derby-Lewis who was
busy preparing breakfast. The first appellant had breakfast with the second
appellant and Mrs Derby-Lewis, whereafter Mrs Derby-Lewis
left the house by car.
While Mrs Motswane was washing up in the kitchen after breakfast the second
appellant came to tell her that
she was wanted on the telephone. On her way to
the telephone she had a view of the interior of the sitting-room. She saw the
first
and second appellants seated in the sitting-room with a table between
them. On the floor next to the first appellant was his brief-case.
The first
appellant was holding a firearm with its butt in his hand and with its barrel
pointing to the floor. While she did not
say so expressly her evidence carried
the implication that it was a handgun. On her return to the kitchen from the
telephone Mrs
Motswane noticed that the first appellant was still holding the
firearm in the same position which she had earlier observed.
14
During the morning of 10 April 1993 the second appellant and Mrs Derby-Lewis
had tea and cake at the home of the State witness Venter
mentioned earlier. The
tea-party is described by both Venter and Mrs Derby-Lewis. According to her she
and the second appellant arrived
at the Venters before 10 am and left again at
about 11 am. Shortly before 11 am the Venters' telephone rang. It was answered
by Mrs
Venter. Mrs Derby-Lewis said that she heard Mrs Venter say:-
"IVInr Chris Hani is doodgeskiet." Mrs Derby-Lewis further testified that she
was unable to recollect precisely how she and the second
appellant had busied
themselves for the rest of the day in question, except that they had done
shopping and gone home for lunch.
At about 3 pm in the afternoon they canvassed
for a forthcoming by-election.
The State witness Miss M M Ras told the court that for the past ten years she
had had an affair with the first appellant. The second
appellant and Mrs
Derby-Lewis were known to her, and she and the first appellant had occasionally
visited their home for a barbecue.
Miss Ras was at the flat of the
15
first appellant at 7 am on the morning of 10 April 1993 when the first
appellant informed her that he was golng out to practlse karate,
but that he
would return at 11 am. After the first appellant had failed to return at the
appointed hour there was a telephone call
from the second appellant. He asked
her where the first appellant was. She replied that she expected him back at any
moment; and
she inquired whether the second appellant wished to leave a message.
The second appellant responded in the negative but asked her
to tell the first
appellant on his retum to telephone him. When later there was still no sign of
the first appellant Miss Ras became
anxious and she telephoned the police and
hospitals. In between these calls, and at about 2.30 pm, the second appellant
again telephoned
the flat. Miss Ras confided to him her disquiet and again
inquired whether he wished to leave a message. According to Miss Ras the
second
appellant then said that he merely wanted to invite them to a barbecue to be
held on the following day (11 April). Thereafter
Miss Ras left the flat in order
to visit friends. When she returned the first appellant was there, but the flat
was swarming with
policemen who
16
were busy searching it in the presence of the first appellant.
In the top drawer of a desk in the flat Det Sgt Grimbeek discovered
a
three-page document (exh "J"), to which reference was made at
the trlal and
in argument before us as "the hit list". Exh "J" is a
typewritten document
which contains, in the following order, the
undermentioned nine names:-
Nelson Mandela, Joe Slovo, Mac Maharaj, Karen Brynard, Chris Hani, Pik
Botha, Richard Goldstone, Ken Owen and Tim Du Plessis. With a slngle
exception (Joe Slovo) under each name the purported address of the person
named is set forth. The whole of the first page is devoted to Nelson
Mandela.
Below his address the following information is noted:-
"NOTE: THE HOUSE, SITUATED IN OAK LINED ROAD, IS DELIBERATELY NOT NUMBERED, BUT
IS EASILY RECOGNISABLE BY THE WROUGHT IRON BLACK
FENCE WHICH HAS HAD BLACK METAL
SHEETING PLACED
BEHIND IT TO LIMIT THE VIEW FROM THE
ROAD.
IT HAS HIGH TECH ELECTRONIC SURVEILLANCE SYSTEMS THROUGHOUT, INCLUDING A
TELEVISION CAMERA
17 MOUNTED AT THE GATE BEHIND A GLASS PANEL THE GATES ARE ELECTRONICALLY
CONTROLLED."
The lower half of the first page
contains a colour photograph of a double-
storey house under a red tiled
roof. Exh "J" also reflects certain manuscript
additions in ink. One sees
that a numeral has been assigned to each name.
Thus, for example, the names
of Nelson Mandela, Joe Slovo and Chris Hani
have been respectively numbered 1, 2 and 3. Next to the name and address
of Chris Hani the following has been inscribed:-
"BMW 525i PWY 525T".
Det Sgt Grimbeek told the court that when they drove away from the flat
after
the search the first appellant remarked in the car to Warrant-Officer
Holmes,
the leader of the police investigation team:
"Mike, I think something made you happy, you found
something."
After 10 April the next significant date in the chronology of events
is
18
Monday 12 April 1993. However, in order to understand the behaviour of the
second appellant and Mrs Derby-Lewis on that date it is
necessary first to go
back a little in time and to mention a number of earlier occurrences.
The
State witness Mr A B Kemp, a supporter of the Conservative Party, has known the
first appellant since the late eighties and the
second appellant and Mrs
Derby-Lewis since the mid-eighties. From the middle of 1989 to the middle of
1992 Kemp served as a journalist
on the "Patriot" newspaper, during which period
he saw much of Mrs Derby-Lewis. Thereafter and until January 1993 he worked for
the
"Citizen" newspaper and saw Mrs Derby-Lewis only infrequently. Kemp
testified that during January 1993 Mrs Derby-Lewis telephoned
him at his work.
At her request he agreed to help her establish the addresses of certain persons.
Mrs Derby-Lewis then faxed to him
a list containing nineteen names. From the
list of nineteen names Kemp composed a list ("Kemp's list") of nine persons and
their
respective addresses.
On 29 January 1993 Mrs Derby-Lewis travelled by bus to Cape Town. Just before
her departure Kemp met her at the Rotunda bus station
in
19
Johannesburg and gave her an envelope contalning Kemp's list. Accordlng to
Kemp Mrs Derby-Lewis never told him for what purpose she
required the
information sought by her. He mentioned, however, that in discussions between
them during 1992, and even earlier, they
had mooted the possibility of
Conservative Party demonstrations "outside these people's houses for propaganda
value".
Mrs Derby-Lewis had a mail-order buslness. Having left the "Citizen" Kemp
started up in invoicing, and he and Mrs Derby-Lewis agreed
to exchange business
ideas. An arrangement was made that on Monday 12 April 1993 Kemp would have
lunch at the Derby-Lewis home, whereafter
he would assist her with programming
Mrs Derby-Lewis's computer.
For some days after 10 April the assassination of the deceased was a topic
which received much press publicity. On 11 April the Sunday
newspapers linked
the second appellant to the first appellant. On Monday 12 April the morning
newspapers reported that a police search
of the first appellant's flat had
yielded exh "J". While Kemp was lunching at the Derby-
20
Lewis home on that day the telephone rang and was answered by the second
appellant. He announced that the caller was a joumalist on
the "Pretoria News";
and that he had inquired of the second appellant whether the first appellant was
a member of the Conservative
Party. Thereupon Kemp asked
his hosts:-
"...whether the list of nine names which I had previously given them was somehow
involved with Mr Waluz."
His question, so testified
Kemp, elicited the following reactions:-
"Both Mr and Mrs Derby-Lewis denied it but then immediately Mrs Derby-Lewis said
yes, it was, but they did not want to tell me."
Kemp
went on to say that the second appellant then suggested that they
should inform the police that the list found in the flat of the first
appellant was
probably Kemp's list. To this suggestion both Kemp and Mrs Derby-Lewis
voiced objections. The second appellant then said to Kemp:-
"...not to worry, Mr Waluz would not
speak..."
Having given this assurance the second
appellant excused himself. He said
21
that he was feeling ill and that he wished to lie down.
In the course of cross-examination by counsel for Mrs
Derby-Lewis
Kemp said that he supplied the photograph of the
house on the first page of
exh "J" on hls own initiative -
"... and the reason why I did that was I was going to suggest to Mrs Derby-Lewis
that she could use it in an article in the Patrlot,
to show the discrepancy
between Mr Mandela's lifestyle and the people he is supposed to be
leading..."
At 6 pm on Saturday 17 April 1993 the second appellant was
arrested
at his home. Shortly after midnight he signed a
statement recorded by one of
his legal advisers who handed it to Warrant-Officer Holmes. The second
and
third paragraphs of the statement read thus:-
"2 Kaptein Deetlefs het my verwittig dat dit 'n emstige saak is en dat ek nie
verplig is om enige iets te sê nie en dat indien
ek wel iets sê dit
as getuien is teen my gebruik sou kon word.
3 Ek het geweier om enige iets te sê behalwe dat ek 'n sekere Waluz
geken het, en dat ek hom in Desember
22 1992 laas gesien het." (Emphasis
supplled)
Next, brlef references must
be made to certain portions of the testimony of Mrs Derby-Lewis. She confirmed
the evidence of Kemp that
she had requested him to supply her with the addresses
of certain persons whose names she faxed to him; and that at the Rotunda bus
stop she received from him an envelope containing Kemp's list. During her
evidence-in-chlef she explained that her main purpose in
obtaining Kemp's list
had been to write an article for "Patriot" to show the houses in which the
persons concerned lived and the
nature of their life-styles.
Mrs Derby-Lewis
told the court that she opened the envelope for the first time in Cape Town. The
second appellant was present and
she showed him Kemp's list. She spent a
fortnight in Cape Town before retuming to Krugersdorp by car with the second
appellant. She
then put Kemp's list on a glass table in the filing room of their
home. The by-election referred to earlier, in which the second
appellant was to
stand as a Conservative Party candidate,
23
was in the offing. They were so busy registering voters that she did not look
again at Kemp's list until the afternoon of Saturday
27 February 1993. On that
aftemoon a Mrs Van Straaten, a canvasser in the by-election, visited their home
in order to collect various
articles in preparation for the by-election. Mrs Van
Straaten's eye fell on the colour photograph of the house on the first page
of
Kemp's list. Mrs Van Straaten inquired whose house it was and Mrs Derby-Lewis
told her that it was the palatial home of Nelson
Mandela.
Mrs Derby-Lewis testified that on the moming of Monday 12 April 1992 she
bought a "Beeld" newspaper and was disturbed to read in it
a descrlption of a
list which had been found [in the flat of the first appellant] containing the
names of politicians and journalists.
There was atso an article suggesting that
the second appellant was connected with the first appellant. They got in touch
with "Beeld"
and complained about the article. She "started to scratch around"
in search of Kemp's list but was unable to find it. She told the
second
appellant that it was missing. Until 12 April she had never discussed Kemp's
list with him but before Kemp's arrival for lunch
they had a serious
discussion
24
about Kemp's list. They had no idea at all how it had come to be in the
possession of the first appellant. She sald in this connection -
"It was assumed that he [the first appellant] had been in the house and picked
it up."
She herself had made no manuscript additions
to Kemp's list. While waitlng for Kemp to arrive she and the second appellant
discussed
the possibility of going to the police. He wanted to but she was
opposed to the idea. She then appreciaíed that the police
would
inevitably come to them.
When during lunch Kemp asked whether the list
described by the newspapers was the one he had given her, initially and out of
embarrassment
and unhappiness, she had denied that it was. When Kemp "kept
persisting" she said -
"It looks as if it is." In Kemp's presence the second appellant again
suggested that they should go to the police but she said that
they should rather
wait and see what happened
25
"I was a little scared, we were after all high profile CP people and I could not
see ourselves being implicated in anything so devastating
as Mr Hani's
murder..."
Under cross-examination by counsel for
the State Mrs Derby-Lewis said she could not recall whether during the
conversation at lunch
the second appellant had made any reference to the first
appellant. Kemp's evidence as to the assurance given by the second appellant,
to
the effect that the íirst appellant would not talk (which had gone
unchallenged during Kemp's cross-examination), was then
read to her. She said
that she could not remember such a statement by the second appellant but
conceded that it was quite possible
that he had made it.
With reference to
the names on Kemp's list she said, amongst other things, that Ken Owen was the
editor of the "Sunday Times" and
that having regard to the stance taken by him
she wondered whether he had not been "bought". Karen Brynard was a joumalist,
she explained,
whose vicious writings had cost the Conservative Party the
Prlmrose by-election. Tim Du
26
Plessis she described as a "viciously anti-Conservative Party" journalist.
Mrs
Derby-Lewis testified that she had definitely not asked Kemp for the sort
of
detail which he had supplied below the address of Nelson Mandela. She
said
that she wished to interview the persons on Kemp's list and to see in
what
manner they lived. During her evidence-in-chief she said that a man's house
-
"..is part of a man's personality and if you look at a person's home you can see
who he is, you can see whether ... he is receiving
extra money, whether he has
got Persian carpets on the wall... journalists are normally poorly paid and if
they have got a lot of
fancy furniture then it is indicative that maybe there is
some extra cash coming in."
She said that on 6 April
1993 she had prepared breakfast at the request of the second appellant; and that
she had no idea for what
purpose he had invited the first appellant to have
breakfast with them.
Mrs Derby-Lewis testified that, although there were no secrets between her
and the second appellant, she was quite unaware of the
fact that he had acquired
exh 2. She said she was further ignorant of the time at which and
27
the circumstances in which exh 2 had come into the possession of the second
appellant. Here it is convenient to mention that although
in regard to her
explanations of the purpose for which she required the Kemp list the trial court
found that Mrs Derby-Lewis was
untruthful, the trial court saw no reason to
reject her statement that she had no knowledge of the murder weapon; and it
accepted
it as true.
Lastly, it is necessary to mention certain evidence
adduced by the prosecution which throws light on an important issue in the case:
how long before 10 April 1993 had preparations for the assassination of the
deceased already been in progress?
It will be remembered that next to the name and address of "Chris Hani" in
exh "J" there is a manuscript inscription which refers
to a particular make and
model of a motor car (a BMW 5251) together with what seems to be a car
registration number (PWY 525T). The
State witness Mr M C Van Zyl told the court
that he was the owner of a BMW 525i motor car and that it bore the reglstratlon
number
PWY 525T. Van Zyl furthertestified that on a number
28
of occasions his car had been used (by him and also by other persons) to
fetch the deceased from his home and to convey him to business
meetings. The
last occasion on which his car had been used for the purpose, so said the
witness, was approximately three weeks before
10 April 1993.
After the arrest
of the first appellant the red Ford was kept in police custody. On 11 April 1993
Sgt J Slingerland, a member of the
police investigating team, searched the red
Ford, and found in addition to many other articles, a bag containing adhesive
plastic
"Snapstix" letters and numerals, together with a receipt relating to
their purchase. The testimony of Det Warrant-Officer O R Manser
established that
the "Snapstix" in question could be superimposed upon the registration plates of
the red Ford in order to display
the false number "PLB 577T". The State's
evidence further established that "PLB 577T" was the registration of another red
Ford Laser
motor car. The receipt in question was followed up by the police. The
evidence of Mr M Sebeko, a salesman at a hardware shop in Sandton,
established
that the "Snapstix" found in the red Ford had been purchased
29
there on the afternoon of 2 March 1993.
On two important issues of fact
which loomed large in the case the trial court, in the course of a carefully
reasoned judgment, made
findings on the probabilitles adverse to the second
appellant. The court considered it extremely unlikely that in the course of a
visit to the Derby-Lewis home the first appellant would surreptitiously have
removed Kemp's list. In all the circumstances, so concluded
the trial court, the
likeliest alternative was that the second appellant had given it to the first
appellant. In my view no criticism
can be levelled at the above appraisal of the
probabilities.
Turning to exh 2, and inasmuch as no other feasible explanation had been
brought forward, the trial court deduced as "the clear inference"
that the
second appellant it was who put the first appellant in possession of the murder
weapon. Suffice it to say that in my judgment
such inference is well-nigh
inescapable. The time and place of the delivery cannot be determined with
certainty, but (as the trial
court correctly pointed out) there exists a very
distinct possibility that it took place some four days before the killing and at
the
30
home of the second appeltant.
in addition to the above inferences based on
antecedent circumstances the trial court listed the following four subsequent
evidentiary
facts, which also point the finger to the second appellant's
complicity.
(1) The telephone calls made by the second appellant to the flat of the first
appellant on the day of the murder and after the second
appellant had heard that
the deceased had already been killed. In this connection the írial court
was also right, I consider,
to attach some sígnifícance to the
fact that mention of the invitation to a barbecue was made only in the course of
the second telephone call.
(2) The second appellant's suspicious utterance at lunch on 12 April 1993 that
the first appellant would not talk.
(3) The false statement made by the second appellant to the police more than a
week after the murder that he had last seen the first
appellant in December
1992. Here I would venture the following interpolation. While our law properly
recognises that a suspect's
lie may
sometimes
31
be inspired by a motive other than the natural endeavour of a
guilty
person to escape detection and conviction, in the instant case
one may
at least discount the possibility that the false statement was made
on
a sudden and without an opportunity for prior reflection. From
the
evidence of Mrs Derby-Lewis it is clear that already by lunch-time
on
12 April 1993 she and the second appellant knew perfectly well that
it
was merely a matter of time before they would be questioned by
the
police.
(4) The second appellant continued after the deceased's death
to keep Mrs
Derby-Lewis in ignorance of his acquisition of exh 2, his
modification
thereof by having a silencer fitted to it; and of his subsequent
dealing
wííh it.
Now although each of the four retrospectant
evidentiary facts summarised
above, taken by itself and in isolation, hardly
carries declsive probative
potency, it cannot be gainsaid that at least each points in the
same direction
and each tends to prove that the existence of the factum
probandum (the
32
second appellant's complicity in the murder) is more probable than his
innocence.
In regard to the question at what stage before 10 April plans for
the
murder of the deceased were already afoot, the trial court
concluded, quite
correctly in my respectful opinion, that from the evidence of steps of
active
preparation on the part of the first appellant, it had been planned long
before
the date on which it was actually executed. In this connection the
learned
Judge-President made the following observations in his judgment:-
"It can reasonably be inferred that accused no. 1 [the first appellant] had
planned this assassination quite some time before 10 April
1993. The ...
evidence to which I alluded earlier was that he probably kept surveillance over
the Hani residence, and observed that
a certain car which we now know had been
there three weeks previously, came to the residence. We know that he had
previously acquired
the wherewithal to conceal the registration number of his
car. In short, the assassination was planned well in advance."
Before examining the manner in which the trial court dealt with the first
33
appellant's failure to go into the witness box, it is perhaps as well to say
somethlng more about the role Kemp's list plays in the
whole body of
circumstantial evidence against the second appellant.
The description of the
elaborate security devices installed at the Mandela residence (and to a lesser
extent at the home of Joe Slovo)
in exh "J" excites suspicion as to the purpose
for which Kemp's list was designed. Such íechnical data would seem to be
of
more immediate interest to an intruder bent on access unannounced and by
stealth, rather than to a joumalist hoping to achieve a
formal interview with
the house-owner, and an opportunity of examining the sumptuous interior which
she thought might confront her
critical eye. However, Kemp testified that he had
furnished this additional information unasked and on his own initiative. In
passing
I am constrained to say that his explanation for the inclusion thereof
appears to be somewhat lame. In all the circumstances, however,
it seems to me,
with respect, that the trial court correctly held that the prevaricatlons of Mrs
Derby-Lewis were Insufficient to
ground a finding that as far as she was
concerned
34
Kemp's list was a hit-list.
For the second appellant the matter does not
end there. The question is not so much to what end Mrs Derby-Lewis (who was
acquitted
on all counts) intended to devote Kemp's list. The question is rather
for what purpose the second appellant intended the first appellant
to use it. To
what use the first appellant in fact devoted it in regard to the deceased is
plain. The significance of the manuscript
notes next to the name "Chris Hani"
has already been explored. On a balance of probabilities the trial court
correctly found that
the second appellant furnished the first appellant both
wíth the murder weapon and with Kemp's list. He used the list to record
notes reflecting results of the surveillance of the deceased's home; and he used
exh 2 to kill the deceased. These facts, taken together
with all the other
evidentiary facts, sustain as a ready inference, that the second appellant gave
not only exh 2 but also Kemp's
list to the first appellant in furtherance of a
plot, to which both the appellants were party, to murder the deceased.
In weighing the consequences of the second appellant'sfailure to
testify
35
the trial court pointed out that the matters under scrutiny related to
the
knowledge and state of mind of the second appellant. The learned
Judge-
President proceeded to deal with leading cases dealing with the inferences
to
be drawn from the silence of and accused person, and then remarked:-
"He [the second appellant] and he alone could have refuted the prima facie
inference that the weapon which Faan Venter handed over
was Exhibit 2. He and he
alone could have dealt with the vital question whether the weapon was handed
over to accused no 1 [the first
appellant] and for what purpose.
In our view his omission to do so is highly signíficant and has the
effect of converting prima facie proof into conclusive
proof."
In the result the trial court was impelled
to the conclusion that:-
"the inference can and must be drawn that accused no 2 [the second appellant]
handed over the murder weapon to accused no 1 [the first
appellant] knowing full
well what the object was for which accused no 1 acquired it and to what use it
would be put. Any inference
consistent with innocence is so far-fetched and
unlikely that it must be left out of account."
36
Counsel who argued the appeal against the second appellant's conviction for
murder undertook a series of separate dissections involving
each individual
piece of circumstantial evidence upon which the trial court had relied in
convicting the second appellant; and in
respect of each such item he would pose
the question: "Does that item by itself prove beyond reasonable doubt that my
client was
a party to the murder of the deceased?" That approach to the problem,
it need hardly be said, is misconceived and unhelpful. It may
be that each piece
of circumstantial evidence, separately viewed, has not a very powerful probative
value. But all of the facts adduced
in evidence have to be considered, each one
in relaion to the whole; and it is all of them taken cumulatively which must be
examined
in order to test the soundness of the conviction. The oft-cited summing
up to a jury by Chief Baron Pollock more than a century ago
in R v Exall (1866)
4 F& F 922 at 929 indicates, I think, as well as any modem authority the
nature of the logical inquiry which
confronts the court in such a case. What
Pollock CB said was this:-
37
"It has been said that circumstantial evidence is to be considered as a chain,
and each piece of evidence as a link in the chain,
but that is not so, for then,
if any one link broke, the chain would fall. It is more like the case of a rope
composed of several
cords. One strand of the cord might be insufficient to
sustain the weight, but three stranded together may be quite of sufficient
strength. Thus it may be in circumstantial evidence - there may be a combination
of circumstances, no one of which would raise a
reasonable conviction, or more
than a mere suspicion; but the whole, taken together, may create a strong
conclusion of guilt, that
is, with as much certainty, as human affairs can
require or admit of. Consider, therefore, here all the circumstances clearly
proved."
The classic statement of the position in
our own law is to be found in the
judgment of this court in Rex v De Villiers
1944 AD 493.
In delivering the
unanimous judgment of the court Davis AJA put the matter thus at 508-9:-
"The Court must not take each circumstance separately and give the accused the
benefit of any reasonable doubt as to the inference
to be drawn from each one so
taken. It must carefully weigh the cumulative effect of all of them together,
and it is only after it
has done so that the accused is entitled to the benefit
of
38
any reasonable doubt which it may have as to whether the inference of guilt is
the only Inference which can reasonably be drawn.
To put the matter in another
way; the Crown must satisfy the Court, not that each separate fact is
inconsistent with the innocence
of the accused, but that the evidence as a whole
is beyond reasonable doubt inconsistent with such
innocence."
Immediately before the above-quoted
passage in the judgment the learned judge of appeal had (at 508) quoted with
approval the following
passage from Best, Evidence (5th ed sec 298):-
"Not to speak of greater numbers; even two articles of circumstantial evidence -
though each taken by itself weigh but as a feather
- join them together, you
will find them pressing on the delinquent with the weight of a millstone ...It
is of the utmost importance
to bear in mind that, where a number of independent
circumstances point to the same conclusion the probability of the justness of
that conclusion is not the sum of the simple probabilities of those
circumstances, but is the compound result of
them."
In the present case the second appellant was
firmly enmeshed in a web
39
of circumstances which were cohesively linked to each other. Their cumulatlve
effect was, I conslder, a damning case whlch called
for an explanation. The
crucial facts were unquestionably within the second appellant's own knowledge.
He could not through lapse
of time have forgotten them; he was brought to trial
within eight months of the events in issue. If in truth he had an innocent
explanation
it would have been a simple matter for him to displace the prima
facie case he had to meet.
This was manifestly a case in which evidence by the second appellant himseH
was essential to make an innocent explanation appear reasonably
possible. No
explanation was forthcoming. In my judgment the trial court correctly concluded
that the second appellant's failure
to propound any innocent explanation
effectively removed it from the range of reasonable possibility. Cf the remarks
of Schreiner
J in Ex Parte Slabbert and Prinsloo
1944 TPD 327
at 330.
There was a grave case for the second appellant to answer. The possibility of
his silence being explicable on some or other hypothesis
40
unrelated to his guilt appears to me to be entirely remote and inherently
improbable. In my opinion the second appellant was properly
convicted on count 1
of the murder of the deceased and his appeal against his conviction on that
count must fail.
I turn to the appeals of both appellants against their
sentences. In respect of the murder charge [count 1] each appellant was
sentenced
to death. For the first appellant the only witness who testified in
mitigation of sentence was his elder brother, Mr W S Walus, who
had shared much
of his early life with the first appellant in Poland. On behalf of the second
appellant no evidence in mitigation
was adduced.
Both counsel for the defence (IVIrs van der Walt who appeared pro amico for
the first appellant, and Mr Prinsloo who argued the appeal
for the second
appellant) urged upon us every submission that could reasonably be advanced in
favour of their respective clients
in regard to the sentence on count 1. We have
given careful consideration to thelr arguments. Before us, as in the court
below, the
debate largely revolved around the questlon whether
41
in the case of each appellant the death sentence was to be regarded as
the
only proper sentence.
In the course of the judgment on sentence Eloff JP observed that
he
found it difficult to differentiate between the two
appellants, and he added:-
"They have not taken me into their confidence as to exactly who did what. We
found that they were both in it together."
In
argument before us no good reason was advanced why the same punishment should
not be meted out to both appellants. Both were first
offenders. It is true that
the first appellant executed the actual assassination, but the known facts, as
far as they go, create
a distinct impression that the second appellant it was
who master-minded the operatlon.
In the case of each appellant the mitigating and aggravating factors found by
the trial court were carefully and comprehensively set
forth. It is unnecessary
to repeat them here. The court below took the view that the aggravating factors
entirely overshadowed the
mitigating factors. With that assessment I agree.
42
An argument strongly pressed upon us had also been
unsuccessfully
employed in the trial court. The nature of the
argument appears from the
following passage in the judgment on sentence; a
passage which, in my
respectful view, carries at the same time a complete refutation of the
argument:-
"I was reminded of the fact that in several judgments of our courts, where
sentence of death was considered in relation to brutal,
cold-blooded acts, the
courts have taken into account the state of mind, for example, of people
involved in the so called liberatory
struggle, who saw themselves as soldiers
fighting a legitimate war and acting under instructions. The present case has no
element
of that sort. The accused could not have thought that they were in a
military struggle. They certainly did not testify that they
committed the murder
as part of a military action. They simply arrogated to themselves the right to
destroy the life of the person
because of their own political perceptions. And
for that, as Hefer JA said in the Botha case [S v Botha and Another, S v Marais
1993 1 SACR 113
at 119 in fin], they have to
pay."
Later in his judgment on sentence Eloff JP,
quite properly in my view,
43
stressed certain of the aggravating features. The learned Judge-President
remarked:-
"The murder was a deliberate, cold-blooded one. The act was cowardly in the
extreme. It was preceded by weeks of planning. The deceased
was felled in front
of his own residence, when he was completely defenceless. And, as I mentioned
earlier, none of the accused has
showed any
remorse."
In my view the passage just quoted is an
accurate portrayal of the essentlal
character of the murder here committed. Upon a careful perusal of the
trial
court's judgment on sentence I am not in the least persuaded that it
overlooked any relevant matter proper for its consideration; or that it
was
actuated by any misdirection. The trial court correctly pointed out that
in
cases of this sort the elements of retribution and deterrence naturally come
to
the fore. In regard to the latter factor Eloff JP had this to say:-
"As a deterrent, I wish, in imposing the sentence which I have ín
mind, to send out the message loud and clear to any one who
contemplates
assassination of political leaders as an acceptable option, what view the court
takes of such conduct."
44
Few crimes can be regarded by a court as more atrocious, or as being more
calculated to arouse the revulsion of decent members of
society, than the sort
of murder of which the appellants were duly convicted. The trial court
ultimately concluded that in the case
of each appellant the death sentence was
the only proper penalty. So far from being assailed by any doubts in the matter,
I entirely
agree with that conclusion. I would therefore confirm the death
sentences.
There remains the appeal by the second appellant against the
sentence of five years imprisonment imposed in respect of counts 3 and
4, taken
together for the purposes of sentence. Counsel for the second appellant was
unable to persuade me that in so sentencing
the second appellant the trial court
had in any way misdirected itself; and the sentence does not induce any sense of
shock in me.
The appeal against the sentence on counts 3 and 4 must likewise
fail.
Counts 3 and 4 involved contraventions of the Arms and
Ammunition
45
Act, 75 of 1969. I would add only this. It is a notorious fact that there
exists in our country a huge reservoir of unlicensed arms
and ammunition to
which violent criminals have easy and cheap access. lí is also an
unpalatable fact that such is the rising
tide of violent crime that despite
their strenuous efforts the members of our understaffed and underpaid Police
Force are unable
effectively to combat it. Until this arsenal of illegal
firearms is destroyed there will continue unabated the almost daily slaughter
of
young policemen, of defenceless old people living on remote farms, and of
innocent travellers in taxis.
I have already mentioned that I am disposed to confirm both the death
sentences. However, for the reasons set forth in this court's
judgment in S v
Makwanyane en 'n Ander 1994(3) SA 868(A) at 873C-D it is appropriate that the
further consideration of the appeals
against the death sentences by this court
be deferred until the constitutional court shall have ruled upon the
constitutionality
of the death sentence in a case such as the present.
For the reasons aforegoing the following orders are made:-
46
(1) The second appellant's appeal against his conviction for murder on count 1
is dismissed.
(2) The second appellant's appeal against the sentence of imprisonment for five
years imposed upon him in respect of counts 3 and
4 (taken together for purposes
of sentence) is dismissed.
(3) The final disposal by this court of the appeals of both appellants against
the death sentence imposed upon each of them in respect
of their convictions for
murder on count 1 is postponed to a date to be determined by the registrar of
this court after consultation
with the Chief
Justice.
G G HOEXTER
JUDGE OF APPEAL
BOTHA JA )
E M GROSSKOPF JA )
CONCUR
EKSTEEN JA )
HOWIE JA )