Brief Summary

Criminal Law — Murder — Identification evidence — Appellants convicted of murder and other charges arising from robbery — Key issue was the identification of the appellants as attackers — Complainant identified first appellant as the one who searched him and second appellant as the one with the firearm — Conviction based on complainant's testimony and corroborating evidence — Appellants' alibi rejected as false — Appeal against murder conviction dismissed.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was an appeal to the Supreme Court of Appeal by two co-accused, Julian Plaatjies (first appellant) and Hendry Christians (second appellant), against their convictions and sentences for murder. The respondent was the State.

The matter originated as a multi-accused criminal trial in the Witwatersrand Local Division before Hannon Acting Judge and assessors, where five accused were arraigned on eleven charges arising from the same course of events. At the close of the State’s case, accused 2 was acquitted and discharged on all counts. The remaining accused (including the present appellants, who were referred to as accused 1 and accused 3) were convicted on multiple counts, including robbery with aggravating circumstances, kidnapping, assault with intent to do grievous bodily harm, attempted murder, and murder. Accused 3 was additionally convicted of unlawful possession of a firearm and ammunition.

Both appellants were sentenced to death on the murder count under the law then applicable. They appealed to the Supreme Court of Appeal under section 316A of the Criminal Procedure Act 51 of 1977, but only in relation to the murder conviction and the death sentence. There was no appeal against their other convictions or sentences.

The general subject-matter of the dispute was the identity of the perpetrators in a violent robbery and abduction culminating in the killing of one victim and the attempted execution of the surviving complainant, and, if the convictions stood, the appropriate sentence in light of subsequent legislative intervention affecting death sentences pending appeal.

2. Material Facts

It was common cause that on the evening of Friday, 15 January 1993, Diranda Makanjee (the complainant) and Arulla Padayachee (the deceased) were travelling in the deceased’s Fiat Uno in Coronation, Johannesburg, when they were attacked at a stop street by five men. The victims were robbed, abducted, and assaulted, and the deceased was ultimately killed. The complainant survived but sustained catastrophic injuries leaving him permanently paralysed from the arms down.

The disputed issue was the identity of the assailants, including whether the appellants were among the group of five.

According to the complainant (whose evidence was central), the Fiat was surrounded by five men, one of whom had a firearm and fired shots at the vehicle. The complainant and deceased were forced into the back seat while the assailants entered the car, drove them to secluded places, and robbed them of personal items including watches, cash, and bank cards. The complainant identified accused 1 as the person who searched him and took his possessions, and accused 3 as the person who carried and used the firearm, assaulted him with it, later shot him in the knee, and participated in the final shooting.

The complainant testified that the assailants stopped at several ATMs attempting to withdraw money, then went to a block of flats where reference was made to obtaining wire or cord to bind the victims. Two assailants returned with wire coat-hangers. After further movement, the victims were taken to an open field, forced face-down onto the ground, bound hand and foot, and each shot three times. The deceased died at the scene; the complainant survived with severe injuries. The complainant also testified that after he was shot, a firearm was pressed to his head and the trigger pulled several times but no further shots fired.

Certain property was identified as having been taken during the robbery. The complainant identified a gold bracelet and watch as his property, and a gold watch as belonging to the deceased; the deceased’s wife also identified that watch as the deceased’s. The trial court accepted these identifications, and this aspect was not pursued as erroneous on appeal.

On 23 September 1993, the complainant attended an identity parade and identified accused 1 and accused 3 as two of his attackers. He also identified a third person who was not one of the five accused. The court treated this incorrect identification as a factor reducing the weight of the parade identifications and as a reason to require corroboration.

The court relied on circumstantial evidence as corroboration connecting each appellant to the crimes. In relation to accused 1, evidence was accepted that, acting on information supplied by him after his arrest, his aunt found the deceased’s watch in accused 1’s jacket pocket and it was handed to the investigating officer. Further evidence placed accused 1 at the scene where wire hangers were sought and obtained on the evening in question.

In relation to accused 3, evidence connected him to the handling and movement of a 7.65 mm pistol in the relevant timeframe and placed him with co-accused in circumstances consistent with the group’s preparations and actions that night. Evidence was also accepted that accused 3 was present when stolen items were sold shortly after the incident. Although ballistic evidence linking a particular firearm to the murder was excluded by the trial court for reasons not relevant on appeal, the court still treated other circumstantial facts as materially corroborative.

As to defences, accused 1 testified and raised an alibi, asserting he remained at his aunt’s flat in Westbury throughout the evening and knew nothing of the crimes. A defence witness, Eunice Naran, supported the alibi in broad terms, but material contradictions emerged between their accounts, and further difficulties arose regarding the asserted ability to recall the events of that specific evening. The trial court rejected the alibi as false. Accused 3 did not testify and led no evidence.

3. Legal Issues

The central legal question was whether the State had proved beyond reasonable doubt that the appellants were among the perpetrators, with the main focus on the reliability of identification evidence and whether the complainant’s identifications were sufficiently reliable and corroborated to sustain the murder convictions.

The dispute primarily concerned the application of legal principles to fact, including the evaluation of identification evidence, corroboration by circumstantial facts, and whether an appellate court should interfere with the trial court’s credibility findings and rejection of an alibi.

A further legal issue, arising only if the convictions were confirmed, was the correct approach to sentence given that the appeals were still pending when section 1(10) of the Criminal Law Amendment Act 105 of 1997 (as substituted by section 25(b) of Act 34 of 1998) became applicable. That provision required the appellate court, if it upheld the conviction, to set aside the death sentence and impose an appropriate substitute sentence.

An additional procedural issue was whether the first appellant’s request from the bar to remit the matter to the trial court to lead further evidence on sentence could be entertained and, if so, whether it met the established requirements for such relief.

4. Court’s Reasoning

The court approached the appeal by assessing whether the complainant’s identification of the appellants, viewed with appropriate caution due to the incorrect identification of a third person, was nevertheless reliable when considered together with corroborative circumstantial evidence.

In relation to the criticisms of the identity parade, the court accepted that the complainant’s incorrect identification of another person diminished the weight of his parade identifications and justified the trial court’s insistence on corroboration. However, the court rejected as unfounded the argument that the complainant’s taking approximately twenty minutes before making his first identification undermined reliability, noting that he was in a wheelchair and physically impaired, which plausibly required additional time to observe. The court also treated his careful request to view suspects in profile as consistent with a cautious approach rather than as an indicator of uncertainty. The further criticism that the complainant did not specify each suspect’s role at the parade was not accepted as a valid attack on reliability, because the complainant’s evidence suggested he understood the purpose to be identifying the participants rather than providing a detailed role allocation at that stage.

The court also addressed objections raised on behalf of accused 3 concerning parade procedure, including that the complainant had not been expressly warned that there might be no suspects present and that persons of other racial groups were included. The court noted that the complainant indicated he knew of the possibility that suspects might be absent, and it placed weight on the fact that the accused’s legal representatives were present at the parade and raised no objection to how it was arranged. It was also accepted as common cause at trial that the individuals on the parade were broadly similar in build, height, age, and appearance.

On the opportunity for observation, the court considered that the complainant had substantial time and proximity to observe the assailants, including sitting next to the armed assailant for more than two hours, being repeatedly assaulted, and experiencing several moments where the interior light came on as occupants entered and exited the vehicle. The court treated these circumstances as supporting the conclusion that the complainant had adequate opportunity for reliable identification, including his observation that accused 1’s appearance had changed (it was common cause that accused 1’s head was shaved at the parade but had not been shaved during the attack).

The court then evaluated the circumstantial evidence that corroborated the complainant’s account. It emphasised the cumulative effect of multiple strands of evidence linking the appellants to the crimes, rather than treating each item in isolation. In respect of accused 1, the presence of the deceased’s stolen watch in his jacket, together with evidence placing him at the point where wire hangers were obtained for binding the victims and evidence implicating him in connection with the storage of a firearm, was regarded as forming a coherent pattern inconsistent with innocent coincidence. In respect of accused 3, evidence placing him with co-accused in connection with a firearm of the relevant calibre, his presence during disposal of stolen items, and evidence linking him to the movement of a pistol shortly after the murder, were treated as strongly corroborative. The court also noted, as an additional factor, that accused 3 did not testify.

The court declined to accept the submission that the State case was a fabrication by unimpressive witnesses. It regarded the criticisms of other State witnesses as directed mainly at non-material aspects that did not disturb the core of their evidence or their credibility, and it found no basis to interfere with the trial court’s credibility findings.

As to the alibi, the court accepted that the trial court rejected accused 1’s version as false because of inherent weaknesses and contradictions, including conflict between accused 1’s account and that of his supporting witness. The court held there was no ground to interfere with that evaluation.

On sentence, the court applied the statutory regime governing pending death sentence appeals. Because the appeal had not been finalised, section 1(10) of the Criminal Law Amendment Act 105 of 1997 (as substituted) required the court, upon confirming the conviction, to set aside the death sentence and impose an appropriate term of imprisonment. The court rejected the request for remittal to lead further sentencing evidence because no details were provided and the basic requirements for such an application were not met, with reference to S v De Jager 1965 (2) SA 612 (A).

In substituting sentence, the court weighed aggravating features emphasised in the judgment: the murder was described as calculated and merciless, committed against a defenceless victim after a prolonged ordeal. The court treated the appellants, especially accused 3, as having played leading roles. It also took into account their ages at the time (23 and 20), their neglected upbringing, and their prior convictions for violent offences. In the totality of these circumstances, the court determined that a sentence of 30 years’ imprisonment on the murder count for each appellant was appropriate, and it ordered that the sentences on the other counts run concurrently with the substituted murder sentence.

5. Outcome and Relief

The appeal against the murder convictions by both appellants was dismissed, and the convictions were confirmed.

The appeal against the death sentences was upheld. The death sentences were set aside and replaced with 30 years’ imprisonment for each appellant on the murder count. The substituted sentences were ordered to be backdated to the date on which the death sentences were imposed. It was further ordered, for each appellant, that the terms of imprisonment imposed on the other counts in the matter run concurrently with the 30-year sentence on the murder count.

No separate costs order was made, consistent with the criminal appellate context and the form of the final order.

Cases Cited

S v De Jager 1965 (2) SA 612 (A).

Legislation Cited

Criminal Procedure Act 51 of 1977, section 316A. Criminal Law Amendment Act 105 of 1997, section 1(10). Act 34 of 1998, section 25(b) (substituting section 1(10) of Act 105 of 1997).

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The Supreme Court of Appeal held that the complainant’s identification of the appellants, though diminished in weight by an incorrect identification of a third person, was sufficiently reliable when supported by strong circumstantial corroboration connecting each appellant to the robbery, abduction, and murder. The trial court’s rejection of the first appellant’s alibi as false disclosed no misdirection warranting interference, and the second appellant’s failure to testify remained an additional factor in the evidential assessment.

The court further held that the statutory regime applicable to pending death sentence appeals required it, once the murder convictions were confirmed, to set aside the death sentences and impose appropriate substitute terms of imprisonment. The application for remittal to lead further evidence on sentence failed for non-compliance with the requirements for such relief. A sentence of 30 years’ imprisonment for each appellant on the murder count was imposed, backdated, and ordered to run concurrently with the sentences on the other counts.

LEGAL PRINCIPLES

The judgment applied the principle that identification evidence must be evaluated with appropriate caution, particularly where there are features (such as an incorrect identification) that reduce its weight; however, identification may be accepted where the witness had adequate opportunity for observation and where the identification is supported by corroborative evidence.

The court applied the approach that the cumulative effect of circumstantial evidence may provide strong corroboration and may connect an accused to an offence beyond reasonable doubt even where each individual strand of evidence might be less compelling if viewed in isolation.

The judgment reaffirmed that an appellate court will not readily interfere with a trial court’s credibility findings and evaluation of evidence, including the rejection of an alibi as false, absent a proper basis to do so on the record.

It further applied the principle that an application to remit a matter to lead further evidence must meet established requirements, and where those requirements are not satisfied, the application will be refused, as illustrated by the reliance on S v De Jager 1965 (2) SA 612 (A).

Finally, the court applied the statutory principle that where an appeal against a death sentence is pending under the applicable legislative framework, and the conviction is upheld, the appellate court must set aside the death sentence and substitute it with a sentence it considers appropriate, taking into account aggravating and mitigating factors reflected on the record.

S v Plaatjies en 'n Ander (24/97,303/91) [1999] ZASCA 10 (17 March 1999)