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[2001] ZASCA 143
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S v Ndika and Others (436/99) [2001] ZASCA 143; 2002 (1) SACR 250 (SCA) (30 November 2001)
CASE NO: 436/99
In
the matter between
MHLELI
ARCHIE NDIKA
1
st
Appellant
THEMBEKHAYA
TOSE 2
nd
Appellant
KWANELE
TEZAPHI 3
rd
Appellant
NCEBA
PATRICK BOBELO 4
th
Appellant
and
THE STATE
Respondent
CORAM
:
MARAIS, CAMERON,
et
MTHIYANE JJA
DATE
HEARD
: 16 NOVEMBER 2001
DATE
DELIVERED
: 30 NOVEMBER 2001
___________________________________________________________________________
JUDGMENT
____________________________________________________________________________
MARAIS JA/
MARAIS JA:
[1] At approximately 4.30am on 6 March 1995 an armed robbery of the
two policemen who were on duty at the Ntabethemba police station
took
place. Six persons were subsequently charged with the crime in the
High Court at Bisho. Accused No 4 was discharged at the
close of the
State’s case and Accused No 1 was acquitted at the end of the
trial. Accused No 2 (Mheli Architect (Archie)
Ndika), Accused No 3
(Thembekhaya (Thembi) Tose), Accused No 5 (Kwanele (Rasta) Tezaphi)
and Accused No 6 (Nceba Patrick Bobelo)
were convicted and sentenced
to imprisonment for 12 years of which 3 years were conditionally
suspended. Leave to appeal against
their convictions was granted to
them and leave to appeal against their sentences was granted to the
Director of Public Prosecutions.
I shall refer to Accused Nos 2, 3,
5 and 6 as first, second, third and fourth appellants respectively.
[2] The appellants were all represented by the same counsel at their
trial. Their heads of argument in this Court were prepared
by the
same counsel and were filed before the assignment of a date of
hearing. Before notice of the date of hearing was given
the
attorneys representing the appellants withdrew. The consequence was
that notice of the hearing had to be given to the appellants
personally. That was done. At the first hearing first, second and
fourth appellants appeared in person. Third appellant failed
to
appear. The matter was postponed to enable the appellants to arrange
for legal representation.
[3] When
the matter came before the court for the second time first and second
appellants had been granted legal aid and were represented
by Miss
Wright. Third appellant again failed to appear. Fourth appellant
appeared in person. He had been refused legal aid on
the ground that
he did not qualify for assistance, presumably because he is a captain
in the South African Defence Force and earns
a salary large enough to
disqualify him. His efforts to engage the counsel who had
represented him at the trial and drafted his
heads of argument for
the appeal were also unsuccessful and he elected to present argument
himself. There is no explanation for
the failure of third appellant
to appear at either the first postponed hearing of which he received
notice or the present hearing.
Efforts made by the police to locate
him have failed. Rule 13 (3) requires his appeal to be “dismissed
for non-prosecution,
unless the Court otherwise directs”. See
S v Isaacs
1968 (2) SA 184
(A) and
S v Moshesh and Others
1973 (3) SA 962
(A). There is no good reason why the Court should
direct otherwise and his appeal is dismissed for non-prosecution.
First and second appellants
[4] The convictions of first and second appellants rest upon
confessions made by them to magistrates and, in the case of second
appellant, evidence that some three to four weeks after the robbery
had taken place he came to the house of one Mr Lufele with
two of the
rifles which had been stolen from the police station. The arguments
for these appellants was, in essence, that the
confessions should not
have been received in evidence because the reasonable possibility
that the appellants had been unduly influenced
to make them had not
been excluded by the State, and that the evidence of Lufele should
not have been accepted.
[5] The nature of the undue influence relied upon by the first and
second appellants is the same: the prospect of their being
used as
witnesses for the State against the other persons involved in the
robbery. It goes without saying that the claimed identical
nature of
the alleged undue influence does not relieve the Court of its duty to
examine the cases of each appellant separately
and individually. But
that does not mean that the fact that (as will appear) they acted in
unison and allegedly for the same reason
in deciding to make
statements must be disregarded. It is obviously highly relevant to
the enquiry.
[6] At the trial Chemaly AJ conducted a trial within the trial in
order to decide upon the admissibility of the statements made
to the
magistrates. A considerable body of evidence was led by the State.
First and second appellants chose not to testify.
Instead they
called Mr Adams, the head of Sada prison in Whittlesea, in support of
their version (put in cross-examination) that,
as part and parcel of
the State’s scheme to induce them to make statements, they were
transferred to Fort Glamorgan prison
in East London where they
preferred to be because of proximity to their families. The impact
of his evidence was that despite
his having refused the two
appellants’ request to be so transferred and the opposition of
the head of Fort Glamorgan prison
to such a transfer, they were
transferred as a consequence of the intervention of the police and Mr
Mrwebi (the Deputy Director
of Prosecutions who was the prosecutor in
the case). Adams also testified that their safety was never raised
as a reason for their
transfer.
[7] The trial judge ruled the statements to be admissible at the
conclusion of the trial within the trial. He had before him at
that
stage (apart from the evidence of Adams) only the evidence of the
witnesses called by the State. That evidence amounted collectively
to this. The two appellants had initiated discussions with the
police officers investigating the robbery with a view to making
themselves available as witnesses for the State. The police
approached the Director of Public Prosecutions who instructed them
to
inform the two appellants that it was their choice as to whether or
not they made statements and that no commitment to using
them as
State witnesses could be made. However, the prospect of them being
so used was not entirely ruled out. The magistrates
testified that
they had asked the appellants whether any influence had been brought
to bear upon them or any benefit held out to
them to induce them to
make statements and whether they expected any benefit if they did so.
Both replied in the negative. When
asked how it had come about that
they had come to the magistrates’ offices to make a statement,
first appellant said that
while in custody at Sada prison he asked
the prison authorities to ask the investigating officer to visit him
“because there
are people who know nothing about the case who
are being included in it, and I wanted to tell him about this case”.
He said
that that led to a visit by Inspector Nyila who told him
that he could tell a magistrate “about this whole thing”.
Second appellant’s explanation was: “Ek wil ‘n
ander lewe lei. Verkeerde persone is vir ‘n misdryf
gearresteer.
Ek het toe die polisie laat kom.” In both
instances the magistrates told the appellants that they should expect
no benefit
whatsoever if they should make statements and the
magistrates required to be assured that the appellants fully
understood that.
They replied in the affirmative.
[8] What was put in the course of the cross-examination as being the
version of the two appellants was not that they had been assured
that
they would be used as State witnesses but that they were “under
the impression” that the Director of Public Prosecutions
“was
interested” in using them as witnesses for the State. It was
also put that they had been influenced by a promise
made to them
that, if they were used as witnesses for the State and a pending
appeal against their conviction and sentence in another
case were to
fail, the Director of Public Prosecutions would write to the prison
authorities in support of their early release
on parole. That
allegation was firmly denied by the witnesses to whom it was put.
[9] It was not argued, nor could it have been argued successfully,
that the trial judge’s decision to admit the statements
in
evidence at the conclusion of the trial within the trial was wrong.
What was contended, was that after all the evidence at
the trial had
been led, including the evidence of the appellants themselves, the
trial court should have reversed its ruling and
declared the
statements to be inadmissible. I am unable to accept that
submission.
[10] The evidence given by the two appellants in support of their
attack upon the reception in evidence of the statements and upon
the
veracity of what was said in the statements was, as regards the
former, in material and vital respects very different from
the
versions put by their counsel in the course of cross-examination, and
as regards the latter, so obviously untrue that counsel
for first and
second appellants found herself unable to contend that it might
reasonably possibly be true.
[11] They denied that they had made any overtures to the police.
They claimed that they had been approached by the police and
had
definitely been promised that they would be used as witnesses for the
State despite their having told the police previously
that they knew
nothing about the robbery; that they were schooled by the police as
to how they should respond to the questions
which magistrates
customarily put to persons who are brought to them to make
statements, and were also schooled as to how they
should implicate
others. None of this was put in cross-examination to the police at
any stage of the trial.
[12] It is quite clear that the initiative regarding the making of
statements was taken by the two appellants themselves and that
their
evidence that it was the police who approached them in that regard is
untrue. It was specifically put by counsel for the
appellants during
cross-examination that “they (first and second appellants) will
say that on the first occasion they called
for some --- the first
occasion that you went there it was at the request of them that they
had called an investigating officer
to come to the prison”.
That was of course in entire conformity with the evidence of the
police. Moreover, both of the
appellants said in their statements to
the magistrates that they had called the police to the prison to talk
to them.
[13] The nature of some of the replies given by the appellants to the
preliminary questions put to them by the magistrates gives
the lie to
the possibility that the police devised the replies for them. The
replies quoted in para [7] of this judgment are examples.
Second
appellant’s vacillation when asked by the magistrate whether he
wished to have a legal representative present is
also quite
inconsistent with second appellant having followed a script provided
by the police. Having initially answered in the
negative, he was
warned by the magistrate that what he might say could be used in
evidence against him. He thereupon said: “Ja
ek wil nou ‘n
prokureur aanstel. Ek sal aansoek doen om regshulp.” Upon
being told that it would not be possible
to take a statement from him
until that had been done, he changed his mind and decided to dispense
with the presence of a legal
representative. It is scarcely
conceivable that, if he was indeed intent upon faithfully carrying
out the unsavoury task allegedly
set him by the police, he would have
responded in that way.
[14] As for the statements themselves, they are replete with a wealth
of detail a good deal of which is either of peripheral relevance
or
of no relevance to the task with which the police had allegedly
burdened them. Quite apart from the extraordinary feat of memory
which would have been entailed in memorizing such a mass of both
significant and insignificant fictitious facts, many of the facts
recited are facts which the police could have had no possible
interest in including in the statement. Hence, as I have said, the
wise decision of counsel for both appellants to abstain from
attempting to argue the contrary.
[15] While
it is so that there was some interest shown by the police and the
prosecuting authority in the possibility that first
and second
appellants might be used as witnesses for the State, that was an
interest aroused by the two appellants’ own actions.
The trial
judge’s finding that no promises in that regard were made to
them and his rejection of their evidence that they
were threatened
with lengthy terms of imprisonment if they did not co-operate and
that a transfer to Fort Glamorgan prison was
held out as an
inducement to them to co-operate cannot be faulted. The
circumstances which must exist before an appellate court
will
interfere with a trial court’s findings of fact are entirely
absent in this case. (See
S
v Hadebe and Others
1997
(2) SACR 641
(SCA) at 645 e-f.)
[16] If, despite the absence of any assurances given by the police or
the Director of Public Prosecutions, despite being told that
the
latter would not commit himself and that it was for them to choose
whether or not to make statements, and despite being warned
by the
magistrates that they should not expect to benefit in any way should
they choose to make statements, they nonetheless did
so, they cannot
be said to have been unduly influenced. A self-induced expectation
of a benefit which expectation is persisted
in even in the face of
both a refusal by the State or its functionaries to commit itself to
extending it and an admonition by a
magistrate that the prospect of
any benefit should be eliminated from one’s mind, cannot
qualify as an influence which is
undue within the meaning of
s 217(1)
of the
Criminal Procedure Act 51 of 1977
. Nor is it one which
renders the admission of a statement made as a consequence of it
unfair and therefore unconstitutional.
In saying this, I do not mean
to convey that I accept that the first and second appellants did in
fact have such an expectation;
I am sceptical of their evidence that
such was their motivation. Be that as it may, even it be assumed
that such was indeed their
motivation for making the statements which
they did, I do not consider that that should lead to the exclusion of
their statements
for the reasons I have given.
[17] The
admission in evidence of the statements of the two appellants puts
paid to any reasonable possibility that the alibis which
they
advanced at the trial might be true. There is no reason to doubt the
veracity of the statements in so far as the appellants
implicate
themselves and there is an abundance of evidence
aliunde
to prove both the commission of the crime and to confirm the
confessions in material respects. It was not contended otherwise.
The appeals of first and second appellants therefore fall to be
dismissed.
Fourth appellant
[18] Having benefited no doubt from hearing his counsel cross-examine
and argue his case at the trial, fourth appellant argued
his case
competently and crisply. We have also taken into consideration the
submissions made on his behalf in the written heads
of argument which
were prepared by his then counsel. The case against fourth appellant
rested upon the identification of him as
one of those who
participated actively in the robbery by Constable Due and a fragment
of evidence connecting him with second appellant
and two of the
rifles which had been stolen from the police station.
[19] The principal contentions of fourth appellant were these. The
circumstances in which Constable Due made the observations
which led
him to identify fourth appellant were not conducive to accurate and
reliable identification. His failure to say in the
first written
statement which he made after the incident that he could furnish a
description of and identify, if seen again, one
of the robbers cast
doubt upon his subsequently professed ability to do so. The
description subsequently given in a further statement
was not
compatible with the actual appearance of fourth appellant. Constable
Due’s first identification of fourth appellant
as the person he
had seen and described was in consequence of eight photographs having
been placed before him by the police officers
investigating the case
and not in consequence of a customary identification parade with its
attendant safeguards against abuse.
The photographs were not
sufficiently similar to be challenging. Constable Due was a single
witness whose evidence did not justify
the rejection of fourth
appellant’s alibi which should have been found to be reasonably
possibly true.
[20] It is of course so that the honesty of a witness in identifying
a person is not by itself a guarantee of its correctness.
The
objective circumstances attending the observation of the person and
the state of mind of the observer is just as critical.
The objective
circumstances were these. Eight armed men burst into the charge
office. They were not masked. The charge office
was well lit with
fluorescent lights. The intruders were intent upon gaining access to
a locked strongroom. Constable Due and
Constable Landu were ordered
to lie face down on the floor. An overcoat was thrown over Landu’s
head. He was unable to
identify any of the intruders. They were
shepherded into the strongroom where they again lay face down on the
floor. One of the
robbers bent down to intimidate them by showing
them he had a grenade in his hand. It was then that Due lifted his
head and observed
the facial and other physical features of that
person. The strongroom was also well lit by a conventional electric
globe. He
noted during the “longish time” (which he
estimated to be ten seconds) for which he had the person’s face
under
observation that he had a big flat nose, a moustache and beard,
a medium sized body which was neither slender nor stout, and a
leather hat and lumberjacket. He judged him to be “possibly
--- taller” than himself. It was a person he had never
seen
before. When this person noticed that Due was looking at him he
kicked him in the face and demanded to know why he was looking
at
him. Due was not able to observe him further. He and Constable
Landu were locked in the strongroom after the robbers had removed
a
safe, three rifles and some bulletproof vests.
[21] It was on the strength of that observation that he recorded in a
written statement on 23 April 1996 a description of the person
and on
14 August 1996 identified a head and shoulders photograph in a batch
of eight head and shoulders photographs of different
people as being
that person. It is common cause that the photograph he identified is
a photograph of fourth appellant. He was
taken to task in
cross-examination for the absence in a statement which he made a day
after the robbery of anything which suggested
that he would be able
to identify one of the robbers if he were to see him again. To that
I shall return.
[22] It is true that the opportunity for observation of the physical
features of the person whom he professed to be able to identify
was
relatively short but that is certainly enough time for a person such
as Due (a policeman under personal threat of harm from
another) to
register facial and other physical characteristics of that person.
All the more so when a conscious and deliberate
attempt was made by
him to do just that. It is certainly not a case of a fleeting
glance in the course of fast moving and frantic
action. The lighting
was good and, apart from the relative shortness of the period of
observation and the fact that the person
was not previously known to
him, the circumstances favoured reliable identification. The very
fact that Due was able on 23 April
1996 to give a description (albeit
linguistically more generic than specific) before an arrest had been
made is consistent with
his evidence that at the time of the incident
he consciously and deliberately set about making observations which
would enable
him to identify the particular person. That such a
description did not appear in his first statement is of no real
moment. His
honesty as a witness was not seriously attacked and he
gave plausible possible reasons as to why a description was not
recorded
then.
[23] The
criticism of the photographic identification “parade” is
not without merit in so far as it concerns the general
principle of
such methods of identification. Indeed, this Court in
S
v Moti
1998 (2) SACR 245
at pp 254h-256c drew attention to the undesirable aspects of such
procedures. It is unnecessary to recapitulate them. What is
clear
however is that, if such a method has been used, it is not axiomatic
that the results are to be ignored. All will depend
upon whether
there is a reasonable possibility that improper conduct has tainted
the reliability of the identification or that,
even in the absence of
any improper conduct, the objective circumstances attending the
photographic identification were not conducive
to accuracy and
reliability.
[24] In the present case there is no reason to suspect foul play on
the part of those conducting the “parade”. Due’s
evidence was obviously honestly given and it excluded any possibility
of foul play in the sense that the police contrived to steer
him in
the direction of identifying the particular photograph which he did
rather than some other photograph. As for the intrinsic
reliability
of the identification, no doubt a larger spread of photographs than
the eight which were placed before him would have
given even more
assurance but eight photographs meant that there were seven other
definitely innocent persons whom Due would have
to exclude. There
was thus a considerable margin for error and the possibility that he
might by sheer luck avoid seven possible
errors was somewhat remote.
[25] The complaint that the other seven photographs were too
dissimilar to the one identified by Due is insubstantial. It was
inherent in the cross-examination of Due that he really had no
opportunity to make reliable observations. If that were indeed
so,
it would follow that no single photograph among the eight would be
more likely to be identified than any other. However, if
one
accepts, as I think one must, that Due did have a good recollection
of what the holder of the grenade looked like, he is unlikely
to have
singled out the photograph which he did if it did not really conform
to his recollection simply because the other seven
conformed even
less.
[26] I have addressed these issues one by one but of course that was
simply in order to deal with them methodically. Ultimately,
it is
their cumulative impact which has to be assessed together of course
with all other evidence relevant to the question of whether
the
identification was correct. To my mind there is other evidence which
excludes the risk of Due’s identification having
been wrong.
[27] The
evidence of Mr Lufele was that in April 1996 some three to four weeks
after the robbery second appellant arrived at his
house in Ezibeleni
together with a young woman. He had two firearms with him and a note
from “Bobelo” (fourth appellant)
asking him to give them
a place to sleep and saying that he would contact Lufele at a later
stage. The firearms were a G3 rifle
and an R1 rifle. (It was
clearly established on the evidence that they were two of the rifles
which had been stolen from the police
station.) It is unnecessary to
recount what subsequently occurred. If Lufele’s evidence was
true that second appellant
arrived at his house with two of the
rifles stolen from the police station and a note from fourth
appellant to accommodate him
and his companion until fourth appellant
made contact with him, it would be a remarkable coincidence. The
chances are remote of
Due having, by a sheer fluke, picked out of
eight photographs of men unknown to him a photograph of a person who,
mirabile dictu
,
turned out to be associated with the possessor of two of the rifles
stolen from the police station.
[28] Second appellant admitted in his evidence that he did indeed
arrive at Lufele’s house with a young woman but denied
that he
had any firearms with him. He also alleged that it was Mrs Bobelo
(the wife of fourth appellant) who had sent him there.
For good and
sufficient reason his evidence was rejected. While Lufele was
prepared to concede that he could not say the note
he was shown was
in fourth appellant’s handwriting because he was unfamiliar
with it, he was adamant that the tenor of the
note made it clear that
the message emanated from fourth appellant. There is no reason to
doubt Lufele’s veracity when he
says that the rifles were
brought to his house. The police found one of them there and the
other as a result of information he
gave them. The only question is
whether it is reasonably possible that he falsely accused second
appellant of bringing them there.
No conceivable reason why he would
have chosen to falsely select second appellant as the culprit was
suggested. He could just
as easily have said that an unknown third
party had brought them there.
[29] The matter does not end there. The nature of the alibi
presented by the fourth appellant has also to be taken into account.
There was of course no onus of proof upon him. It was for the
prosecution to prove that it could not reasonably possibly be true.
The State led evidence that he was absent without explanation from
parade the morning of the robbery in order to support the allegation
that he was involved in the robbery. Although his counsel
cross-examined the witness who gave this evidence along the lines
that
the evidence was derived from an attendance register and that
she could not say of her own knowledge that he was absent, when the
fourth appellant himself gave evidence he admitted that he had not
attended the parade and alleged that he had been in the sick-bay.
This was the first inkling that the State or the police or the court
was given of his whereabouts at that time. Understandably,
the trial
judge considered that an alibi so easily capable of independent
verification would have been raised long ere the trial
if there had
been any truth in it.
[30] When all these factors and their respective bearing upon one
another are considered, the quibbles about the lack of resemblance
of
the other photographs to fourth appellant pale into insignificance
and there can be no doubt that Due was accurate in his identification
of fourth appellant. His appeal against his conviction must also
fail.
The cross-appeal against the sentences
[31]
The
cross-appeal against the sentence remains to be considered. The four
appellants are respondents in that appeal. The failure
of the third
appellant to prosecute his own appeal cannot of course stultify the
State’s right to have its appeal against
his sentence heard.
The approach to an appeal by the State against the alleged leniency
of a sentence is well-established and
set forth in
S
v Shapiro
1994 (1) SACR 112
(A) at 119j to 120c and
S
v Sadler
2000 (1) SACR 331
(SCA) at 334 par [6] to 335 par [10].
[32] I am unpersuaded
that the trial judge misdirected himself in any material respect in
imposing sentence. His criticised reference
to the absence of
violence must be interpreted in the context of the facts of the case.
He acknowledged that “the threat
of violence and force was
used, the accused being armed with various firearms”. He
rightly regarded the use of firearms
and a hand-grenade as
aggravating factors. He regarded it as mitigating that
notwithstanding the fact that the accused were armed
nobody was
injured. The reference to the absence of violence clearly was meant
to convey that no one was physically injured in
any significant way.
[33] The factors which
the trial judge took into account in imposing sentence were all
legitimate factors and the State’s
complaint is really that the
respective weights assigned to the various factors were
inappropriate. It is necessary to point out
once again that the
weight to be assigned to each of the many factors which are germane
to the assessment of an appropriate sentence
in a given case is the
prerogative of the trial court. Unless its weighting of the factors
is plainly wrong or rests upon faulty
reasoning, it is not for an
appellate court to substitute its own weighting of those factors.
[34] I
cannot say that the trial judge’s weighting of the relevant
factors was plainly inappropriate nor can I say that it
is the
product of faulty reasoning or vitiated in any other way. The
sentences imposed include substantial and relatively lengthy
terms of
direct imprisonment and interference with them would, in my view, not
be justified. They are not disturbingly lenient.
However, they
require modification in two respects. The trial judge inadvertently
failed to specify the period for which three
of the twelve years
imprisonment he imposed were to be suspended and circumscribed the
conditions of suspension too narrowly in
one respect and too widely
in another. I shall rectify that.
[35] In the result:
1. The appeal of the first, second and fourth appellants against
their convictions is dismissed. The appeal of the third appellant
is
dismissed for want of prosecution.
2. The appeal of the State against the sentences imposed upon the
four appellants is dismissed.
3. The sentences imposed by the trial judge are amended to read:
“Twelve (12) years imprisonment of which three (3) years are
suspended for five (5) years on condition that the accused
is not
convicted of a crime committed within the period of suspension in
which dishonesty or violence towards the person of another
or any
attempt thereat is involved and for which he is sentenced to
unsuspended imprisonment without the option of a fine.”
______________________________
R
M MARAIS
JUDGE OF APPEAL
CAMERON
JA )
MTHIYANE
JA ) CONCUR