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[2002] ZASCA 89
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S v Thebus and Another (338/2001) [2002] ZASCA 89; [2002] 3 All SA 781 (SCA); 2002 (2) SACR 566 (SCA) (30 August 2002)
THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
CASE
NO
: 338/2001
In
the matter between :
ABDURAGHMAN THEBUS
First
Appellant
MOEGAMAT ADAMS
Second
Appellant
and
THE STATE
Respondent
_________________________________________________________________________
Before: OLIVIER, NAVSA JJA and LEWIS AJA
Heard: 9 MAY 2002
Delivered: 30 AUGUST 2002
Summary: Reliability of evidence of identification:
alibi defence – approach to: sentence –
Criminal Law
Amendment Act 105 of 1997
– increase on appeal.
_________________________________________________________________________
J U D G M E N T
_________________________________________________________________________
LEWIS AJA
LEWIS
AJA:
[1]
I have read
the judgment of Navsa JA and regret that I do not agree with his
finding that the conviction of the first appellant
should be set
aside.
[2]
Navsa JA has
concluded that because the evidence of Kiel was found to be
unreliable in respect of the identification of the second
and third
accused, it is not to be relied upon in respect of the first
appellant. The learned judge considers, however, that Kiel’s
evidence identifying the fourth appellant is reliable because it is
corroborated by the evidence of David (Petersen), and by the
car
registration number taken down by witnesses to the shooting, and
which led to the tracing of the fourth appellant.
[3]
The
principal difficulty with Kiel’s evidence implicating the first
appellant is that it is uncorroborated by any other evidence:
he was
the only member of the community who identified the first appellant,
and the reliability of that identification must be
weighed carefully
with his alibi, and the testimony of the two witnesses who supported
it. The real issue is to decide whether
Kiel’s identification
of the first appellant (which the court found to be reliable in the
case of the other appellant, but
which he did not accept in respect
of the other two accused) proves his presence at the scene of the
shooting in the face of the
alibi evidence of Ms Van Rooy and Ms
Jacobs. The further question that arises from this is whether an
alibi which is considered
to be fabricated can in fact corroborate in
some way the identification of an accused by a single witness.
[4]
Navsa JA has
referred to the tests to be employed when determining the reliability
of the evidence of a single witness as to the
identity of an accused.
I do not propose to repeat these. The Court
a
quo
took into consideration the following
factors. The first appellant was well-known to Kiel. They had grown
up in the same area,
and Kiel had seen him regularly over a number of
years although they did not socialize together. He knew the nickname
(Maantjie)
of the first appellant. He had remonstrated with the first
appellant, calling on him, by name, to stop the shooting because of
the presence of children on the scene. When remonstrating he had been
threatened with a firearm. He had seen a pickaxe in the hands
of the
first appellant. Moreover, the incident had occurred in daylight,
where the perpetrators of the violence and the shootings
were for the
most part clearly visible. Kiel’s description of the events
tallied to a considerable extent with that of the
other witnesses to
the scene, although there were some inconsistencies. These are easily
attributed to the different times at which
the various witnesses had
seen the events, the different vantage points and their different
powers of recollection.
[5]
The
reliability of the observations of Kiel must be considered having
regard to the assessment of the trial Court of Kiel as an
honest and
impressive witness. It is true that the Court rejected his evidence
implicating the two other accused: but it did so
on the basis that he
must have been mistaken in having placed them on the scene. The
second accused was discharged after the close
of the State’s
case because, although he was placed on the scene by Kiel, a State
witness, Cedric Calton, gave him a plausible
alibi. This was the
position also in the case of the third accused where a plausible
explanation of his whereabouts, supported
by testimony, placed in
doubt his presence on the scene and his complicity. The discharge and
the acquittal were the result, in
my view, of doubt having been cast
on Kiel’s evidence that placed those two accused on the scene,
given that their versions
were reasonably possibly true.
[6]
As I have
mentioned previously, Navsa JA has taken the view that if Kiel was
found to have given unreliable evidence in respect
of those two
accused, then his evidence must be unreliable also in respect of the
first appellant. This conclusion is based, in
my respectful view, on
two faulty premises.
[7]
The first
fallacy is that Kiel’s evidence was equally strong in respect
of all the accused, and that there is thus no reason
to differentiate
between his evidence identifying each. That is not the case. The two
accused who were respectively discharged
and acquitted were seen at a
greater distance than was the first appellant. This is on its own of
no great significance since Kiel
testified that the distance was no
more than eight metres. But they were on the other side of the road,
whereas the appellants
were on the same side. In particular, as I
have mentioned, Kiel knew the first appellant well by sight and by
reputation, and spoke
to him on the scene, calling him by his
nickname and asking him to desist from shooting. He did not speak to
the other two accused.
They were not said by him to have played any
particular role in the shooting and its aftermath. I consider that
there is no illogicality
in the reasoning of Mitchell AJ that Kiel’s
evidence
may
have been
less reliable in respect of those whom he had seen at a greater
distance and with whom he had had no interaction.
[8]
The second
faulty premise is that Kiel could be right in respect of the fourth
appellant because there was other evidence to corroborate
his
identification of him, but wrong where there was nothing other than a
dubious alibi to support the identification of the first
appellant.
Kiel testified that he had never seen the fourth appellant
previously. He recognized him subsequently only by reason
of his
build and other physical characteristics (in respect of which he and
David Petersen were inconsistent). His capacity to
identify the
fourth appellant was clearly thus not greater or better than his
capacity to identify the first appellant. It is highly
unlikely that
he would be correct in respect of the man whom he did not know but
incorrect in respect of the man whom he did know
and to whom he spoke
during the incident. Moreover, there was nothing to suggest that Kiel
had any motive falsely to implicate
any of the accused.
[9]
The reason
that Mitchell AJ acquitted the second and third accused was, as I
have suggested, because of the reasonable doubt as
to their presence
on the scene, raised by plausible alibis – and not because Kiel
was necessarily wrong.
[10]
Was the
first appellant’s alibi of the same kind? Was it reasonably
possibly true? I shall not traverse in detail the evidence
of Ms van
Rooy and Ms Jacobs. The version advanced by the first appellants and
his two witnesses was that he had left Ocean View
at about 13h00 and
taken a taxi to the Fishhoek station. Ms Van Rooy, who also lived in
Ocean View, was in the same taxi. They
had both caught the 15h10
train to Wynberg. He and Van Rooy had parted ways there. He had gone
to a mosque in Wynberg where he
led the prayers. He had then
proceeded to the home of Ms Jacobs, his second wife, in Parkwood
Estate. The first appellant and Ms
Jacobs had been together all the
time until the following day when he had left to return to Ocean
View, save that he had gone alone
to a mosque in Parkwood Estate. It
was only when the first appellant returned to Ocean View that he had
heard about the events
of the previous day.
[11]
Van Rooy
testified, two years after the event, that she had caught the 15h10
train to Wynberg with the appellant, and that he had
gone to the
mosque in Wynberg. Ms Jacobs remembered, also some two years later,
that the first appellant had arrived at her house
at precisely 16h55.
She could remember the exact time, she said, because she had been
waiting for the first appellant to return
her bank card to her so
that she could do some shopping; and that she had been angry when he
arrived too late for her to do this.
[12]
I agree
with the finding of Mitchell AJ in the court
a
quo
that the two witnesses’ versions of
the first appellant’s movements on the day in question were so
consistent with
each other, and with the evidence of the first
appellant himself, and their ability to remember minute detail, such
as timing and
train schedules, so remarkable, that the suspicion must
arise that the entire story was concocted for them and carefully
rehearsed.
That suspicion is not enough, however, to say that the
first appellant’s version is not reasonably possibly true.
[13]
What is
more telling, in my view, is that the version was raised only at the
trial, some two years after the incident. It does
not seem to me
reasonably possible that the second wife of the first appellant, Ms
Jacobs, and his acquaintance Ms Van Rooy, would
not come forward
immediately upon his arrest, or at least some short time later, and
advise the police investigating the crimes,
which had shaken the
community as a whole, that he had been with them at the crucial
times. It is equally not possible that the
first appellant himself,
having so cogent an alibi when arrested and charged, did not advise
the police or the prosecution that
this was the case. The only
inference that can be drawn from his failure to advise the police,
and from the other witnesses’
failure to do so, is that the
alibi had no truth in it at all.
[14]
In my view,
therefore, the evidence of Kiel identifying the first appellant as a
participant in the crimes of murder and attempted
murder is reliable
and compelling. That he
may
have been mistaken in identifying the second and third accused as
participants in the shooting spree does not detract from his
clear
identification of the other two accused. Kiel’s evidence is
supported, moreover, by the patent fabrication of an alibi
by the
first appellant. Accordingly there is no reasonable doubt, in my
mind, that the first appellant was correctly convicted
by the trial
Court.
[15]
I would
thus also dismiss the appeal against the conviction of the first
appellant.
[16] In so far as sentence is concerned, I agree with
Navsa JA that the crimes committed by the appellants fall within the
ambit
of
s 51
of the
Criminal Law Amendment Act 105 of 1997
, and in
particular that the appellants were part of a group acting in
furtherance of a common purpose. In the circumstances the
prescribed
minimum sentence is life imprisonment for each unless substantial and
compelling circumstances, warranting the imposition
of a lesser
sentence, are shown to exist.
[17] I agree also with the views expressed
by Navsa JA on the abhorrent nature of the crimes, and on the dangers
of appearing to
condone the conduct of the appellants in taking the
law into their own hands. Vigilante action must be visited with
severe consequences.
But I consider that there are a number of
factors which should be taken into account in determining whether the
sentence of life
imprisonment is disproportionate to the crime. In
S
v Malgas
2001 (1) SACR 469
(SCA) Marais JA,
in discussing the meaning of the phrase ‘substantial and
compelling circumstances’ said (at 481a—d):
‘The
greater the sense of unease a court feels about the imposition of a
prescribed sentence, the greater its anxiety will
be that it may be
perpetrating an injustice. Once the court reaches the point where
unease has hardened into a conviction that
an injustice will be done,
that will only be because it is satisfied that the circumstances of
the particular case render the prescribed
sentence unjust, or, as
some might prefer to put it, disproportionate to the crime, the
criminal and the legitimate needs of society.
If that is the result
of a consideration of the circumstances the court is entitled to
characterize them as substantial and compelling
and such as to
justify the imposition of a lesser sentence.’
The approach of this Court in
Malgas
was endorsed in
S v
Dodo
[2001] ZACC 16
;
2001 (1) SACR 594
(CC).
[18] The imposition of life imprisonment on the two
appellants leaves me with a sense of considerable unease, and a
conviction that
the sentences would be unjust. That does not mean
that the two appellants should not be severely punished for their
conduct. However,
life imprisonment is the most severe sentence
recognized by the law, and it seems to me that to impose it would be
completely wrong
in the circumstances of this case and in respect of
the two appellants.
[19] It is useful, before dealing with the
particular factors that I consider relevant, to set out the specific
guidelines laid
down in
Malgas
(in
the Court’s summary at 481j—482e), and that I consider
pertinent in this case.
‘D. The specified sentences are not to be
departed from lightly and for flimsy reasons. Speculative hypotheses
favourable
to the offender, undue sympathy, aversion to imprisoning
first offenders, personal doubts as to the efficacy of the policy
underlying
the legislation, and marginal differences in personal
circumstances or degrees of participation between co-offenders are to
be
excluded.
E. The Legislature has however deliberately left it to
the courts to decide whether the circumstances of any particular case
call
for a departure from the prescribed sentence. While the emphasis
has shifted to the objective gravity of the type of crime and the
need for effective sanctions against it, this does not mean that all
other considerations are to be ignored.
F. All factors (other than those set out in D above)
traditionally taken into account in sentencing (whether or not they
diminish
moral guilt) thus continue to play a role; none is excluded
at the outset from consideration in the sentencing process.
. . .
I. If the sentencing court on consideration of the
circumstances of the particular case is satisfied that they render
the prescribed
sentence unjust in that it would be disproportionate
to the crime, the criminal and the needs of society, so that an
injustice
would be done by imposing that sentence, it is entitled to
impose a lesser sentence.’
[20] The killing of Crystal Abrahams, and the injuring
of Riaan van Rooyen and Lester September was not premeditated. They
were
caught in the middle of the shooting by the vigilante group. The
appellants, although guilty by virtue of being part of the group
and
having a common purpose, were not themselves the men who fired the
shots. The first appellant stood at the scene of the shooting
and the
second collected spent cartridges. They did not have the direct
intention to kill or injure but were guilty by virtue of
dolus
eventualis. Both were first offenders, and both had previously been
regarded as respectable members of their community (I
would add,
however, that people who choose to take the law into their own hands
and to participate in groups that deliberately
damage property and
cause severe injury and even death in the process can hardly be
described as respectable members of society).
[21] I do not consider that the frustration allegedly
felt by the community of Ocean View at the inability of the police to
deal
with gangsterism and drug-dealing is a factor that should be
regarded as mitigating. Nor do I accept the approach of the trial
judge that the entire community shouldered responsibility for the
tragic events that occurred when the vigilante group descended
on
Ocean View. Indeed, I agree with Navsa JA that the conduct of the
group would have added to the fear felt generally by people
living in
Ocean View. And the argument that members of the group were provoked
by Cronje is illogical given that the group had
first attacked his
property.
[22] However, the other circumstances must weigh heavily
in determining the appropriate punishment for the appellants. Their
participation
in the actual shooting was not a direct cause of the
death of the deceased or the injuries to the complainants. That they
are legally
responsible for the death and injuries that resulted is
not in question. Nor is their moral responsibility doubted. They
participated
in violent action that they must have known could lead
to injury and death. But they did not actually shoot and neither was
seen
using a firearm. Such a difference in the degree of
participation is not marginal – it is, in my view, significant.
I have
no doubt that it would be unjust to impose a sentence of life
imprisonment on either of the appellants given that their
participation
in the commission of the crimes charged was limited.
That the appellants were first offenders, were employed and have
families
to support are factors that must also be taken into account.
[23] I consider therefore that there are substantial and
compelling circumstances that justify a lesser sentence than life
imprisonment.
But the appellants’ conduct is such as to warrant
a lengthy sentence of imprisonment. They were responsible for the
death
of a child and the injuries of others. They showed a contempt
for the administration of justice, and of the police who are charged
with dealing with the prevention of crime, in a reckless and
unconscionable fashion. The sentence imposed by the trial court was
in the circumstances grossly inadequate for the punishment of the
appellants and as a deterrent to others who might take it upon
themselves to deal with criminal conduct by perpetrating crimes
themselves.
[24] In all the circumstances I consider that a
sentence of imprisonment of 15 years for each appellant is
appropriate.
[25] The appeals of both appellants against their
convictions are dismissed, and the sentences of suspended
imprisonment subject
to conditions in respect of both appellants are
replaced with the following:
‘
The first and fourth accused are each sentenced
to imprisonment of 15 years.’
CAROLE LEWIS
ACTING JUDGE OF APPEAL
OLIVIER JA CONCURS
NAVSA JA:
[1]
During 1998
lawlessness reigned in the suburb of Ocean View, Simonstown, in the
Western Cape. Drug dealers lived in the community
and plied their
trade openly. The police were unable to fight this scourge. The
community itself was largely uncooperative in
the fight against
crime. On the 14 November 1998 a group of vigilantes decided to act
against those whom they suspected of being
drug dealers. The
vigilantes armed themselves and called at addresses of suspects.
They engaged in unlawful assaults and wantonly
destroyed property.
Members of the group were driving in a motorcade at an intersection
close to populated blocks of residential
flats when Grant Cronje
("Cronje"), a person suspected of being a drug dealer and
whose house had been damaged by them
earlier that day, discharged his
firearm in their direction. The motorcade stopped. Members of the
group, who emerged from motor
vehicles, stood in the street and
returned fire. A seven year-old girl, Crystal Abrahams ("the
deceased"), who was on
her way home from the shops walked into
the crowd which had gathered to observe events. Almost immediately
thereafter she was
struck by a bullet and killed. Riaan Van Rooyen
("Van Rooyen"), 15 years old at the time and present in the
vicinity
was wounded in his right buttock. Lester September
("September"), an adult who was also in the vicinity,
sustained a
flesh wound. It is not disputed that a person or persons
from the motorcade discharged the bullets that caused the deceased’s
death and wounded Van Rooyen and September. Flowing from these
events, the appellants and two others were each charged in the Cape
High Court, with murder, public violence and two counts of attempted
murder. The first and second appellants were the first and
fourth
accused respectively. At the end of the State’s case all the
accused were acquitted on the charge of public violence
and the
second accused, Moegamat Raven ("Raven"), was acquitted on
all the remaining charges. The third accused, Fadiel
Peterson
("Peterson"), was acquitted on all the remaining charges at
the end of the trial. The appellants were each
convicted of murder
and on the two counts of attempted murder. The charges were
considered as one for purposes of sentencing.
Each of the appellants
was sentenced to eight years' imprisonment, suspended for five years
on the following conditions:
"1. That you are not found guilty of a crime
involving the use of violence or a crime against the State committed
during the
period of suspension.
2. That each of you perform community service without
remuneration for a period of eight hours per week for a period of
three years.
Mr Thebus, you at the Ocean View police station. Mr
Adams, you at the Athlone police station or such other police station
to
which either of you may be assigned should you change your address
and where you will perform such administrative duties as are
assigned
to you from time to time by the officer commanding that police
station."
The State applied in terms of
section
316
B of the
Criminal Procedure Act 51 of 1977
for leave to appeal
against the sentences imposed by the Court below, contending that
they were unduly light and induced a sense
of shock. On 29 September
2000 the Court below granted the State leave to appeal to this Court.
The appellants in turn applied
for leave to appeal against their
convictions. On 30 March 2001 the Court below granted them leave to
appeal to this Court against
their convictions on all three counts.
Before us the two appeals were heard together. For the sake of
convenience I will in respect
of both appeals refer to the parties as
they are in the appeal against conviction.
[2]
The
principal question in the appeal against the convictions is whether
the State proved beyond a reasonable doubt that the appellants
were
part of the vigilante group from which the gunfire emanated resulting
in the consequences described earlier. It was contended
on behalf of
the appellants that, in the event of this question being decided
against them, we should conclude that they did not
have a common
purpose with the persons who fired the shots that killed the deceased
and injured the other two, and that if we were
disinclined to so
conclude, we should hold, in the totality of circumstances, that the
vigilante group acted in self-defence.
On the question of sentence
the State contended that considering the seriousness of the offences,
and the circumstances in which
they were committed, the sentences
were wholly inappropriate, did not serve as a deterrent to
vigilantism and did not address society
s
interests. The appellants on the other hand contended that the
sentences were innovative and appropriate.
[3]
At the
commencement of their trial before Mitchell AJ and two assessors, in
the Court below, the appellants and their co-accused
denied their
presence at the scene at the material time. I proceed to deal with
the material parts of the evidence adduced in
the Court below.
[4]
The first
and main witness for the State was Gregory Edward Kiel ("Kiel").
A summary of his evidence follows. On the
day in question, at
approximately 17h00, he was watching television when his daughter
drew his attention to a crowd of approximately
thirty people, which
was moving past the block of flats in which he resided. He went down
the stairs and saw Cronje at the head
of the crowd, brandishing a
pistol and firing in the direction of the intersection of Aries
Avenue and Milky Way where five vehicles
were parked. Cronje
s
fire was returned and he took flight. There were four people in the
street at the point from which Cronje was fired upon. One
of them
was on his haunches brandishing a firearm, which he discharged in the
direction of a library and a block of flats. The
other three were
behind him. One of them was picking up spent bullet cartridges.
Another was standing with a pick-handle in his
hand. The remaining
member of the quartet went to a vehicle and placed a shotgun in the
boot. There were people in the five vehicles
parked close to the
four people in the street. Initially, when Cronje was being fired
upon, Kiel was lying flat on the tar surface.
While members of the
group of four were still firing, he arose with his arms in the air
and walked towards them. He pleaded with
them to stop firing and
told them that a bullet had struck a child. One of them ordered him
to shut up or face being shot. This
person who had been picking up
spent cartridges slapped Kiel in the face. He was brandishing an
automatic pistol. Kiel identified
the first appellant as the person
who held a pick-handle in his hand and the second appellant as the
person who had picked up the
spent cartridges and who slapped and
threatened him. According to Kiel he was in the presence of the first
and second appellants
for approximately 4 – 5 minutes. Kiel
testified that the other two members of the group of four were not
amongst the accused
in the Court below. The first appellant is a
resident of Ocean View whom Kiel has known for more than thirty
years. Kiel testified
that when he first addressed the group of four
he spoke directly to the first appellant and called him by his
nickname, "Maantjie".
Kiel did not know the second
appellant before the shooting incident and recognised him as having
been on the scene by his moustache
and physical build, which was
altered slightly because he had lost some weight in the time between
the shooting incident and the
trial. Kiel testified that Raven and
Peterson were present at the intersection and were at some stage in
the vehicles parked approximately
6 - 8 metres away (across the
street) from where he observed them. They were initially standing at
the intersection before entering
the motor vehicles. Peterson sat
in the driver’s seat of a bakkie with the driver’s window
rolled down. There were
other people in the bakkie with him. Kiel
testified that when he walked back towards the deceased, after she
had been fatally
wounded, he saw Peterson drive the bakkie close to
the point where she lay. A witness to events, named at the beginning
of the
next paragraph, shouted at the police that the bakkie was
connected to the shooting. At that point Peterson drove away. Kiel
knows Peterson and saw him in Ocean View more than once every week.
Peterson regularly drove around Ocean View selling soft drinks.
Kiel
repeatedly stated that he was certain that Peterson was the person in
the bakkie. Kiel testified that Raven sat in the motor
vehicle in
which the shotgun was placed. Kiel knew Raven and his parents and
their address in Ocean View. For some time he lived
in the same
block of flats as did Raven and his parents.
[5]
David
Petersen testified in support of the State’s case. I will
refer to this witness as "David" so as to avoid
confusing
him with Peterson, the appellant’s co-accused in the Court
below. David had rushed to Cronje
s
house when he heard that a vigilante group had caused damage to it
earlier that day. When he reached the house he found the door
kicked
in and the windows smashed. A bakkie on the premises was damaged.
Cronje arrived shortly thereafter and walked past his
house,
accompanied by two other persons and followed by a growing crowd. He
made his way across a veld as a motorcade, in which
members of the
vigilante group drove, wound its way through the intersection. Cronje
fired on the motorcade causing the vehicles
to stop. Some of the
occupants got out and returned fire, causing Cronje to flee. David
corroborated Kiel’s evidence of
how he approached the group at
the intersection. He confirmed that the second appellant had picked
up spent cartridges. Like
Kiel, David had not seen the second
appellant before the day in question. When the shooting subsided
David approached the group
with his arms in the air. He spoke to the
person with a shotgun and saw a man slap Kiel. Peterson sat in a
bakkie approximately
six metres away. David knew it was Peterson in
the bakkie because he looked directly in his face at the time he
spoke to the person
with the shotgun. He knew Peterson as someone
who sold soft drinks in Ocean View and has known him for a number of
years (
"'n goeie paar jaar al"
). David
was a friend of Peterson’s brother. In response to a question
about how often he saw Peterson in Ocean View he
replied:
"Baie,
vreeslik baie."
Later he clarified it by saying
that he saw him at least once a day and more than once on Sundays.
David accepted that people sometimes
confused Peterson with his uncle
but was emphatic that he was not mistaken about Peterson being in the
bakkie. He stated repeatedly
that he was certain that Peterson was
in the bakkie. When it was put to him that Peterson was not in Ocean
View at the material
time his response was as follows:
"Met
hart en siel sal ek daarmee stry."
David testified
that he would never forget the second appellant’s face because
he watched him as he picked up the spent cartridges
three metres
away. David did not see a difference in the second appellant’s
physical build from the time of the incident
to the time of the
trial.
[6]
Van Rooyen
testified that he and the deceased were making their way home from
the shops to the block of residential flats close
to the intersection
when they walked into the crowd following Cronje. He saw Cronje fire
at the motorcade. The vehicles stopped
and occupants who got out
fired back. He saw the deceased fall and attempted to carry her to
safety when he felt his legs go lame.
He knew Raven and Peterson but
did not see them at the scene.
[7]
September
testified that he was on his way home after visiting a friend when he
was struck by a bullet in the vicinity of a block
of flats close to
the intersection and saw people scurrying away, seeking safety. He
did not see Cronje at the scene nor did he
see who fired the shots.
He sat down and saw the deceased making her way home from the
direction of the shops. He told her to
sit by him so as to avoid
danger. She did not heed his advice and departed. Thirty seconds
later he received a report that she
had been shot and went to where
her body lay.
[8]
Kiel and
David and people in the crowd following Cronje identified members of
the vigilante group responsible for the death of
the deceased and for
the injuries caused to Van Rooyen as being part of an organisation
called Pagad. Kiel and David's evidence
in this regard was
unchallenged. It is not disputed that during the course of the day
in question, before the shooting incident,
members of the vigilante
group engaged in violent acts and assaulted people in Ocean View.
[9]
The Court
below had regard to evidence by persons who had witnessed events in
Ocean View earlier that fateful day and who recorded
in writing the
registration number of a motor vehicle used by the vigilante group as
they went about their violent business. The
registration number led
the police to the second appellant. It is common cause that the
second appellant is the owner of the vehicle
bearing the relevant
registration number.
[10]
I turn to
deal with the first appellant
s
alibi evidence. He testified that at the material time he was
travelling to visit his second wife, Faranaaz Jacobs ("Jacobs"),
who lived in Parkwood Estate. He gave an account of how, at
approximately 13h00 on the day in question, he took a taxi to
Fishhoek
station and from there boarded a train to Wynberg where he
attended afternoon prayers at the Wynberg mosque before proceeding to
Jacobs’ house. He testified that Brenda Van Rooy ("Van
Rooy") was a fellow commuter on the taxi and the train.
Van
Rooy and Jacobs testified in support of the first appellant's alibi.
[11]
The second
appellant was the only accused who admitted to being a member of
Pagad. He denied being present in Ocean View on 14
November 1998.
He testified that on the day in question he travelled alone in his
motor vehicle to Perdekloof at the instance
of the security division
of Pagad to ensure the safety of a location at which a Pagad meeting
was to take place the following day.
Against this version the Court
below considered the evidence of sergeant Mcdonald ("Mcdonald"),
who testified that when
he asked the second appellant where his motor
vehicle had been on the 14 November 1998, the latter replied that he
and his family
had been visiting a resort in Montagu. Upon
investigation it was discovered that the second appellant and his
family booked into
the resort the day after the shooting incident.
The second appellant denied that he had been asked about the
whereabouts of his
car in relation to a specific date. He testified
that Mcdonald asked him where his motor vehicle had been two or three
weeks earlier
and that he responded by stating that he had been at a
resort in Montagu.
[12]
The Court
below was impressed by Kiel, describing him as a brave person who put
his life at risk when he approached the group of
four and their
comrades who were in and around the motor vehicles. Kiel was found
to be forthright and honest. The Court below
considered that in
respect of the identification of the first appellant, Kiel was a
single witness, but held that his evidence
that the first appellant
was present at the intersection could not be rejected. The Court
below concluded that the identification
of the two appellants by Kiel
and David was "probably" reliable. There are some
inconsistencies between Kiel’s
and David's descriptions of the
activities and positions of the four persons who stood in the street
at the intersection. Mitchell
AJ stated that it would be surprising
if there were none and that the discrepancies that existed were not
such as to effect the
reliability of their identification of the
appellants as members of the vigilante group. The Court was
persuaded that Kiel was
sufficiently close to the appellants at the
material time so as to make his identification reliable, stating that
it may be that
his identification of persons who were on the other
side of the road was less reliable.
[13]
The Court
below found that Jacobs and Van Rooy’s evidence dovetailed too
neatly and precisely with the first appellant’s
version of
events. The Court held it against the first appellant that his alibi
was not revealed to the police after his arrest
and that it emerged
for the first time at the trial. His alibi was rejected. It
concluded that the first appellant's guilt had
been proved beyond a
reasonable doubt.
[14]
In
evaluating the second appellant’s version that he was not in
Ocean View at the relevant time, the Court was persuaded
that
sergeant Mcdonald’s version, of how he offered his stay at
Montagu Springs as an alibi in relation to a question about
his
whereabouts on 14 November 1998, was to be preferred to the
appellant’s version that he was merely responding to a general
question as to his whereabouts a few weeks previously. The Court
below found it unlikely that the question would have been posed
in a
general and vague manner.
[15]
In dealing
with the evidence concerning the registration number of the second
appellant's motor vehicle the Court below was critical
of the police
for failing to preserve the paper on which the number was taken down,
and had some reservations about the evidence
of the chain of events
leading up to the number being traced. It nevertheless took this
evidence into account against the first
appellant and concluded that
the State proved beyond reasonable doubt that the second appellant
had been in Ocean View on 14 November
1998 and associated with the
group from which the shooting emanated which killed the deceased and
wounded Van Rooy and September.
[16]
With
reference to
S v Mgedezi
1989
(1) SA 687
(A)
the Court below convicted the
two appellants on the basis of the doctrine of common purpose. It
reasoned that members of the group
were armed and that no member who
participated in or associated with its actions on the day in question
could be heard to say that
he or she did not contemplate the
possibility of violence erupting and that the arms carried by members
of the group would be used
and that persons might be killed. It held
that the people who fired the shots and those associated with them
had the requisite
intention in the form of
dolus
eventualis
. The Court below rejected the
submission on behalf of the appellants that members of the group were
acting in self-defence, stating
that it was clear from the evidence
that the group returned Cronje’s fire after he had fled.
[17]
In
evaluating the correctness of the conclusions reached by the Court
below it is necessary, at this stage, to examine the Court
below’s
reasons for acquitting Raven and Peterson.
[18]
It will be
recalled that both Kiel and David identified Peterson and that Kiel
was the only witness who identified the first appellant
and Raven.
In acquitting Raven the Court below considered the evidence of Sedric
Calton ("Calton"), a witness for the
State, who testified
that on the day in question, when he was travelling to Raven’s
house in Ocean View to continue working
on the exhaust system of his
motor vehicle, he saw shooting take place at the intersection and
when he arrived at Raven’s
home the latter was there. He told
Raven about the shooting. In light of Calton’s evidence the
Court concluded that Kiel
must have been mistaken when he testified
that he saw Raven in a vehicle at the intersection.
[19]
In
acquitting Peterson the Court had regard to his evidence that at the
material time he was selling soft drinks elsewhere. He
was
corroborated by the evidence of Mr Gennison who was employed by him
and by Mr Davids who testified that on the day in question
he
purchased soft drinks from Peterson in Kalk Bay to serve as part of
the refreshments at a function celebrating his father’
s 65
th
birthday. Peterson was also supported by his delivery book, which,
although it contained an error in recording some dates relative
to
the days of the week, resembled similar entries to other Saturdays.
Peterson’s alibi was disclosed to the police when
he was
arrested. In consequence they obtained statements from witnesses
soon after the event. In their testimony the witnesses
did not
depart from their statements in any material way. The Court below
concluded that in light of this evidence Kiel and David
must have
been mistaken in placing Peterson on the scene and consequently
acquitted him on all the remaining charges.
[20]
The first
appellant's conviction was based on Kiel’s identification and
on his fabricated alibi. It is trite that the evidence
of a single
witness must, in order to lead to a successful conviction, be
satisfactory in every material respect. In Hoffmann
and Zeffertt’s
The South African Law of Evidence
(4
th
ed) the learned authors remind us at
612 - 613
that appellate courts have frequently observed upon the dangers of
relying on the identification of a single witness. Reference
is made
to
R v T
1958
(2) SA 676
(A)
where an accused was picked
out at an identification parade by the complainant and was convicted
and sentenced to death. There
was no other evidence against him.
This Court accepted the trial court’s finding that the
complainant was completely truthful
and genuinely believed that the
accused was the man who raped her but upheld the appeal because the
evidence of identification
was left open to a reasonable doubt. The
complainant was in a shocked state, her opportunity for observation
was limited and the
light was poor. The learned authors, at 613,
state the following:
"In such cases it is not unlikely that a guilty
man is allowed to go free, but the possibility of error is too great
to justify
a conviction."
[21]
Calton was
a State witness who was not impeached. His evidence concerning Raven
stands unchallenged. The alibi evidence of Peterson
was rightly not
faulted. It is not open to the State to argue that Raven and
Peterson were wrongly acquitted and that Kiel was
in fact a reliable
witness in his identification of them. It is not a satisfactory
explanation, in seeking to justify Kiel and
David's evidence in
respect of the appellants, to say that they were closer to Kiel than
were Raven and Peterson. On Kiel and
David’s evidence Raven
and Peterson were between 6 - 8 metres away; close enough to be
identified. According to David he
had a second opportunity to
identify Peterson when the latter drove the bakkie close to the
deceased’s body. Furthermore
Kiel and David were identifying
individuals whom they knew very well.
[22]
Counsel on
behalf of the State submitted that Kiel’s evidence in respect
of the first appellant had the distinguishing feature
that Kiel
called him by his nickname and that they grew up together. There is
no indication anywhere in the record that the first
appellant
acknowledged his nickname or the longstanding relationship. All the
indications are to the contrary. If Kiel had called
out Raven and
Peterson's names and had received no acknowledgement, his
identification of them would not, against the other evidence,
have
proved more reliable. The following words by Dowling J, in
R
v Shekelele
1953 1
SA 636
(T)
at
638 G
,
concerning the identification of persons said
to
be well known by witnesses, are apposite:
"An acquaintance with the history of criminal
trials reveals that gross injustices are not infrequently done
through honest
but mistaken identifications. People often resemble
each other. Strangers are sometimes mistaken for old acquaintances.
In all
cases that turn on identification the greatest care should be
taken to test the evidence."
[23]
In
S v Mehlape
1963
2 SA 29
(A) 32 H
Williamson J in dealing with the possibility of
error in identification said:
"The manner of removing any reasonable possibility
of error in any given case is a matter entirely to be governed by the
circumstances
of the case."
[24]
The Court
below's reasons for rejecting the first appellant's alibi cannot be
faulted. Accepting that the first appellant's alibi
was fabricated
does not mean that in the circumstances of the present case his
presence at the scene has been proved beyond a reasonable
doubt.
There is no formula as to the weight and effect of a witnesses' false
evidence. There are cases in which false evidence
may prove decisive
and others in which it may not. In
S v
Mtsweni
1985 (1) SA 590
(A)
at
593 I - 594 D
Smalberger AJA said the following:
"Terwyl die leuenagtige getuienis of ontkenning van
'n beskuldigde van belang is wanneer dit by die aflei van
gevolgtrekkings
en die bepaling van skuld kom, moet daar teen gewaak
word om oormatige gewig daaraan te verleen. Veral moet daar gewaak
word teen
'n afleiding dat, omdat 'n beskuldigde 'n leuenaar is, hy
daarom waarskynlik skuldig is. Leuenagtige getuienis of 'n valse
verklaring
regverdig nie altyd die uiterste afleiding nie. Die gewig
wat daaraan verleen word, moet met die omstandighede van elke geval
verband hou. Hierdie benadering is onlangs bevestig in
S v
Steynberg
1983 (3) SA 140
(A) waarin die denkrigting in
R v
Mlambo
1957 (4) SA 727
(A) op 738B-D en die aanvaarde
uitgangspunt in
Goodrich v Goodrich
1946 AD 390
op 396 in
oënskou geneem is, en die korrekte toepassing van die
Mlambo
-benadering toegelig is. By die beoordeling van
leuenagtige getuienis deur 'n beskuldigde moet daar, onder meer,
gelet word op:
(
a
) Die aard, omvang en wesenlikheid van die
leuens, en of hulle noodwendig op 'n skuldbesef dui.
(b) Die beskuldigde se ouderdom, onwikkelingspeil,
kulturele en maatskaplike agtergrond en stand in soverre hulle 'n
verduideliking
vir sy leuens kan bied.
(c) Moontlike redes waarom mense hulle tot leuens wend,
byvoorbeeld omdat in 'n gegewe geval 'n leuen meer aanneemlik as die
waarheid
mag klink.
(d) Die neiging wat by sommige mense mag ontstaan om die
waarheid te ontken uit vrees dat hulle by 'n misdaad betrek gaan
word,
of omdat hulle vrees dat erkenning van hulle betrokkenheid by
'n voorval of misdaad, hoe gering ook al, gevare inhou van 'n
afleiding
van deelname en skuld buite verhouding tot die waarheid."
[25]
Kiel cannot
be said to be a satisfactory witness in all material respects. His
emphatic and adamant identification of both Raven
and Peterson was
shown conclusively to be unreliable. The equally emphatic and
adamant David supported Kiel's identification of
Peterson. When
supported by another witness Kiel was proven wrong. How can this
Court be certain that he is not in error once
again? Why, it may be
asked, when supported by a false alibi, instead of David, who
impressed the Court, does Kiel become more
reliable? In the present
case one cannot discount the possibility that the first appellant
contrived the alibi evidence as an
act of desperation. It might also
be that he resorted to an alibi because his co-accused had the
comfort of their alibis. The
danger of a wrong conviction is real.
[26]
In dealing with alibi
defences when identity is put in issue, Schmidt in
Bewysreg
(4de uitg.), with reference,
inter alia
, to
R v
Hlongwane
1959 (3) SA 337
(A)
at
341A
states:
"Vandag word tereg aanvaar dat 'n alibi nie 'n
soort spesiale verweer is wat deur die beskuldigde bewys moet word
nie. Die
staat moet bewys dat die beskuldigde die misdaad gepleeg
het en moet derhalwe die alibi weerlê; en die alibi skep nie 'n
geskilpunt wat afsonderlik beoordeel moet word nie: 'The correct
approach is to consider the alibi in the light of the totality
of the
evidence of the case, and the Court's impressions of the witnesses.'
"
In my view, upon a consideration of
the totality of the evidence, there is a reasonable possibility that
the first appellant was
not present at the intersection at the
material time.
[27]
In respect
of the second appellant different considerations apply. The Court
below rightly concluded that sergeant Mcdonald's
evidence concerning
the enquiry about his whereabouts is to be preferred to his version
of events. What distinguishes the second
appellant's case is the
registration number of his motor vehicle. Counsel for the appellants
attempted to persuade us that it
was coincidental that the
registration number (which he submitted may have been incorrectly
read or recorded by the witnesses concerned)
led to the second
appellant, who just happened to be a Pagad member. The Court below
correctly chastised the police for not retaining
the document on
which the registration number was recorded. The Court was correct,
however, to accept the evidence that the witnesses
recorded the
number of the motor vehicle in question. Counsel for the appellants
did not contend that the police or the witnesses
manipulated the
evidence concerning the registration number or in any way contrived
to implicate the second appellant. The second
appellant was an
admitted Pagad member. His motor vehicle was positively identified
as having been on the scene going about Pagad
business. He was in an
ideal position as a member of Pagad who was entrusted with security
matters to dispute their presence or
operation in the area on the day
in question. He did not do so. He did not at any stage assert that
someone else used his car
on the day in question or at any other
time. In fact, he stated positively that no one else had the use of
his motor vehicle.
In the face of the incontrovertible objective
evidence of the registration number it is safe to conclude that he
was present in
Ocean View on the day in question. The conclusion is
compelled that the second appellant was involved in and associated
with the
vigilante group’s activities in Ocean View on the day
in question.
[28]
By coming
to Ocean View armed and behaving in the manner described earlier in
this judgment members of the vigilante group were
demonstrating that
they were intent on confrontation and violence. By stopping and
standing in the middle of a populated area,
firearms blazing away
wild-west style, members of the group placed themselves and others in
the community in danger. It is clear
that members of the vigilante
group acted in concert as they went about their business in Ocean
View. No member of the group whether
in motor vehicles or in the
street dissociated himself from violent actions perpetrated by others
in the group. I am satisfied
that the requirements for holding
individuals liable for acting in common purpose with others on the
basis set out in the
Mgedezi
case,
supra
, at
705
I – 706 C
have been satisfied insofar
as the second appellant is concerned. The second appellant's
conviction in the Court below is, in my
view, well founded.
[29]
It is true,
as submitted on behalf of the appellants, that the Court below, in
rejecting the contention that the bullets which
caused death and
injury were fired in self-defence, erred in concluding that the shots
were fired only after Cronje departed the
scene. This is apparent
when one considers the evidence of David and Van Rooyen. It does not
mean that the conclusion that the
group did not act in self-defence
is wrong. There is no indication that any of the shots fired damaged
any of the vehicles in
the motorcade. There is no evidence that the
occupants of the vehicles were in any real danger. There is no
indication that anything
prevented any of the motor vehicles in the
motorcade from departing the scene thereby avoiding continued or
further confrontation
with Cronje. This case clearly demonstrates
that law and order break down even further with catastrophic
consequences when vigilante
action is resorted to. The picture of
the innocent 7 year-old deceased that forms part of the record is a
terrifying reminder
of a lesson history has taught us repeatedly and
that we repeatedly forget, namely, that ignoble methods can never
serve an ostensibly
noble cause. Law enforcement agencies will do
well to note that inaction and apathy on their part lead to this kind
of behaviour.
[30]
It follows
from the conclusions reached by me that I would uphold the first
appellant’s appeal against his conviction and
would dismiss the
second appellant’s appeal. I turn to the question of the
sentence imposed on the second appellant. The
offences in question
were committed after section 51 of the Criminal Law Amendment Act 105
of 1997 ("the Act") came into
operation. Section 51 (1) of
the Act obliges a court which convicts an accused person of
committing murder, as part of a group
acting in the execution or
furtherance of a common purpose or conspiracy, to impose a sentence
of life imprisonment, unless in
terms of section 51 (3) "substantial
and compelling circumstances" exist, justifying the imposition
of a lesser sentence.
The Court below in sentencing the appellants
was influenced by the fact that no one had testified that the
appellants were armed
and that Cronje had started firing shots, which
caused the retaliation by members of the group. Mitchell AJ reasoned
that police
inaction and community apathy whilst not excusing the
group's behaviour at least explained it. Mitchell AJ concluded that
these
factors taken together with the appellants' personal
circumstances constituted substantial and compelling circumstances
justifying
the sentences imposed by him. Mitchell AJ stated that he
is not at all satisfied that the case before him was the type that
the
legislature had in mind when it prescribed life imprisonment for
a conviction of murder based on an individual acting with a group
in
the furtherance of a common purpose. In my view, Mitchell AJ
misdirected himself fundamentally when he considered that this
was
not the kind of case provided for by section 51 (1) of the Act. The
contrary is true – this is precisely the kind of
case that the
legislature had in mind. The legislation is directed against mob and
gang rule and general lawlessness. The second
appellant and his
comrades were intent on violence. They went about their business in
the most violent and dramatic manner. With
the intention of rooting
out drug dealers who
terrorised
a township they then proceeded to terrorise the community even
further. It is surprising that more people were not killed or
injured. No member of the group can now be heard to say that he or
she did not foresee the possibility of the violence and mayhem
that
ensued. It was all too predictable. In my view, it is fallacious to
lay any blame for what transpired at Cronje's door.
Armed, the group
intended to tackle drug dealers. Members of the group could have
been under no illusion that those targeted
by them would be meek and
submissive. In my view, the Court below erred in finding that there
were substantial and compelling
circumstances justifying a sentence
less than that prescribed by section 51 (1). The group as a whole
displayed a bloody-mindedness.
The individuals in the group did not
and now cannot distance themselves from group behaviour. They
associated themselves fully
with the group's methods and purpose.
[31]
The second appellant's
personal particulars are set out in the judgment of the Court below.
He has a family dependant on him for
support. He has stable
employment, does voluntary community work and is a first offender.
The offences in question are undoubtedly
serious. Because of the
nature of the defence there has been no demonstrated remorse. Given
the circumstances of the case any
sentence imposed must serve as a
deterrent and must protect societal interests. I agree that the
offences, flowing from one incident,
should be taken as one for the
purposes of sentencing. There are, however, in my view, for the
reasons stated earlier, no substantial
and compelling circumstances
justifying a lesser sentence than that prescribed.
[32]
There is no substance in
the submission on behalf of the appellants that because of the ground
set out in the notice of appeal,
namely, that the sentence was unduly
light and induced a sense of shock the respondent could not now argue
that the learned judge
in the Court below misdirected himself by
concluding that there were substantial and compelling circumstances,
which warranted
the imposition of a sentence less than the prescribed
minimum. The notice of appeal states unambiguously that the judge in
the
Court below erred in underemphasising the seriousness of the
offence and did not properly appreciate that the offences flowed from
vigilante action and that the victims were innocent bystanders. It
is clear from what is set out in the preceding paragraphs that
the
Court below misdirected itself materially in the manner set out in
the notice of appeal and in other respects. This Court
is therefor
at large to alter the sentence and to substitute therefor an
appropriate sentence including, if applicable, the prescribed
minimum
sentence.
[33]
In my view the prescribed
sentence is in the totality of the circumstances of this case an
appropriate one. Innocent members of
society are entitled to walk
the streets of their community without the fear that they might at
any time be caught up in a shooting
war. The message must go out that
those who are intent on bringing their own brand of justice to bear
on communities, without regard
for the lives of innocents and the
breakdown of law and order, will face the full force of the law.
[34]
Following on the
conclusions reached by me I propose the following order:
1. The first appellant's appeal against his convictions is upheld and
his convictions and sentence are set aside;
2. The second appellant's appeal against his convictions on the three
counts is dismissed;
3. The State's appeal against the
second appellant's sentence is upheld;
3.1 The second appellant's sentence
is set aside, and the following is substituted:
"The
fourth accused is sentenced to life imprisonment."
______________________
M S NAVSA
JUDGE OF APPEAL