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1997
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[1997] ZASCA 86
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S v Hadebe and Others (298/94) [1997] ZASCA 86 (29 September 1997)
REPUBLIC OP SOUTH AFRICA
CASE NO 298/94
In the matter between:
MBONGISENI HADEBE
1st Appellant
KWENZA KHUZWAYO
2nd Appellant
MAJAJI MADONDO
3rd Appellant
DUMISANE MTHETHWA
4th Appellant
and
THE STATE
Respondent
CORAM
: VIVIER, MARAIS, JJA et STRETCHER, AJA
HEARD
: 12 September 1997
DELIVERED
: 29 September 1997
JUDGMENT
MARAIS JA/
2
MARAIS JA:
The four appellants were convicted in the Witwatersrand
Local Division upon one count of murder, one count of attempted
murder, one count of unlawfully possessing four firearms, and one
count of unlawfully possessing a quantity of ammunition. They were
all sentenced to death upon the murder count and imprisonment for
five years upon the attempted murder count. The first three appellants
were sentenced to imprisonment for two years, and the fourth appellant
to imprisonment for three years, upon the counts of unlawfully possessing four firearms and a quantity of ammunition, the two
counts being taken together for the purpose of sentence. The latter
terms of imprisonment imposed upon the appellants were ordered to
run concurrently with the sentence of five years' imprisonment
imposed in respect of the count of attempted murder.
3
All of the appellants appeal against all of their convictions
and the sentences of death, leave to appeal having been granted where
necessary by the learned judge (Marais J) in the Court a quo. A
special entry made at the request of the appellants is also before the
court. I shall return to it in due course. The appellants were acquitted
in the same proceedings upon another count of murder.
The State set out to prove the following case against the
appellants.
Count 1 (Murder)
The deceased, Sibusiso Nkosinathi Chonco, was shot dead
at approximately 17:00 on Friday 6 November 1992 while in a Nissan
Skyline motor vehicle at Chiawelo in
Soweto
. A large number of
shots were fired at the deceased and the vehicle in which he was
seated. A red Nissan Sentra motor vehicle travelling at high speed
4
was seen in the vicinity of the Nissan Skyline at about the same time.
On arrival at the scene of the shooting the police found and took
possession of three spent cartridge cases. One was found in the street
about 30 metres away from the Nissan Skyline; one was found inside
the Nissan Skyline on the window ledge of the door next to the front
seat on the passenger's side of the vehicle; and one was found
approximately one metre away from where the deceased lay on the
ground next to the Nissan Skyline. Photographs depicting the spent cartridge cases and the places where they were found were taken
by
Sgt Nieuwoudt at about 19:40 on the same day. The deceased had
been shot repeatedly and five spent bullets were recovered from his
body in the course of the post mortem examination. The State was
unable to call any witness who could identify the person or persons
responsible for shooting the deceased.
5
Count 2 (Murder)
In the afternoon of the following day, Saturday 7
November 1992, another shooting took place. One Fisher Makhoba
was killed and one Jeffrey Flower Njikelani was wounded. They had been working on a vehicle at deceased's home at Senoane in
Soweto
with two other men when the shooting suddenly commenced. The
latter two men managed to run away and so avoid being shot. The
deceased and Njikelani were less fortunate. Both of them were shot
and fell to the ground. While they were lying on the ground a person
moved between them, bent downwards, and removed from its holster
a 9 mm CZ pistol owned by the deceased. None of the witnesses was
able to say who the person was. Further shots were fired at the
deceased as he lay on the ground. Deceased succumbed to his many
bullet wounds and died. Njikelani was hit only once in the buttock
6
and survived. A large number of spent cartridge cases as well as some
bullet heads and a live bullet were found in the immediate vicinity.
In addition, three spent bullets and the jacket of a bullet were
recovered from the body of the deceased.
That very afternoon, and quite co-incidentally, a police
patrol encountered a red Nissan Sentra motor vehicle not far from the
scene of the shooting. It excited suspicion but when the occupants of
the police vehicle showed interest in it, it sped off. Despite pursuit by
the police for a number of kilometres, the sounding of a siren, and the
flashing of lights, the Sentra failed to stop. Eventually the driver lost
control of it and it mounted an island in the middle of the road and
came to a halt. In the car were the four appellants. Sgt Brits searched
the vehicle and found on the floor in the front of the car a 9 mm CZ
pistol (Exh 1) and a .38 Taurus revolver the serial number of which
7
had been obliterated (Exh 2). Cst Volschenk found in the back of the
car two more handguns. They were another .38 Taurus revolver (Exh
3) and a 9 mm Browning pistol (Exh 4). It was subsequently found
that the 9 mm CZ pistol (Exh 1) belonged to the deceased (Mr
Makhoba). Furthermore, ballistic tests showed that some of the
cartridge cases found at the scenes of both the shooting on Friday 6
November and the shooting on Saturday 7 November had been fired
from the Browning pistol (Exh 4).
Both of the deceased persons had been involved in the
business of operating taxis and the appellants were also so involved.
The State contended that it had succeeded in proving beyond
reasonable doubt the facts outlined above and that they gave rise to an
irresistible inference that the four appellants had joined in a murderous
attack upon Mr Chonco on Friday 6 November and upon Mr Makhoba
8
and Mr Njikelani on Saturday 7 November.
The four appellants denied that they were involved in any
way in either of the attacks. Not all of them gave evidence upon oath
but those who did (first and third appellants), said that they had given
the police patrol no reason to take any particular interest in them; that
there had been no pursuit of them in the manner described by the
police; that they stopped on becoming aware that the police wished
them to do so; that they were unaware of the presence in the vehicle
of any handguns; and that there were good reasons why they were on
the road together at that time.
The Court a quo considered the evidence tendered by the
State in respect of the murder of Mr Chonco to be insufficient to
justify a conviction and all the appellants were acquitted on that count.
After a comprehensive review of all the evidence in the case the Court
9
a quo concluded that the circumstantial evidence against the appellants
was so compelling, and their own evidence so improbable and
unimpressive, that their conviction for the murder of Mr Makhoba, the
attempted murder of Mr Njikelani, and upon the counts of unlawfully
possessing the firearms and ammunition was justified.
Counsel for the appellants advanced a bold argument
indeed in this Court. It amounted to a submission that the appellants
had been the victims of a conspiracy hatched by the police in which
virtually everybody who had anything to do with the investigation had
knowingly participated. The foundation for the submission was a
painstaking examination of the minutiae of the evidence for the State
with a view to assembling as many inconsistencies and contradictions
as could be found. These were said to be indicative of dishonesty and of the existence of such a conspiracy. The evidence of the appellants
10
who testified was submitted to have been acceptable evidence
supported in material respects by one of the witnesses called by the
State. To that too I shall return. At the very least, so it was
contended, the Court a quo should have entertained real doubt as to
whether or not there had been a conspiracy, and so acquitted the
appellants.
More specifically, it was submitted that the police had
embellished what they had been told about the car allegedly involved
in the first shooting incident; that they had prompted the identification
by one of the witnesses of the car involved in the incident on Friday
6
November as a red Nissan Sentra by showing her a photograph of
the car in which the appellants were found by the police on Saturday
7
November; that their evidence as to the submission of the firearms
and the ammunition or the remnants of it for ballistic examination was
6
11
shot through with falsehoods; that the inability to produce at the trial
some of the cartridge cases was sinister; that the ballistic experts
perjured themselves and pretended to have examined cartridges which
they had never had; that the police alleged that firearms had been
found in the car only after the appellants had been in custody for some
hours; and that the police had concocted the allegation that the
appellants had been pursued for a number of kilometres with a police
siren wailing and lights flashing, yet had failed to pull over.
Before considering these submissions it would be as well
to recall yet again that there are well-established principles governing
the hearing of appeals against findings of fact. In short, in the absence
of demonstrable and material misdirection by the trial court, its
findings of fact are presumed to be correct and will only be
disregarded if the recorded evidence shows them to be clearly wrong.
12
The reasons why this deference is shown by appellate courts to factual
findings of the trial court are so well known that restatement is
unnecessary.
One looks in vain for any such misdirection on the part
of the Court a quo in this matter. The evidence given in the court
below was fairly and accurately summarised in the judgment.
Attention was given to the detailed criticisms of the evidence of the
witnesses who testified for the State. They were evaluated in the
context of the entire body of evidence before the Court and
appropriate weight assigned to them in the light of all the evidence
and the inherent probabilities and improbabilities of the case. Where
caution was needed it was exercised and the court not infrequently
preferred to place no reliance upon evidence for the State which might
possibly not be accurate. That being the case, the credibility findings
13
and findings of fact of the trial court cannot be disturbed unless the
recorded evidence shows them to be clearly wrong. In assessing
whether or not such is the case, the approach which commended itself
in Moshephi and Others v R
(1980-1984) L A C 57
at 59 F - H
seems appropriate in the particular circumstances of the matter:
"The question for determination is whether, in the light of all
the evidence adduced at the trial, the guilt of the Appellants was
established beyond reasonable doubt. The breaking down of a
body of evidence into its component parts is obviously a useful
aid to a proper understanding and evaluation of it. But, in
doing so, one must guard against a tendency to focus too
intently upon the separate and individual parts of what is, after
all, a mosaic of proof. Doubts about one aspect of the evidence
led in a trial may arise when that aspect is viewed in isolation.
Those doubts may be set at rest when it is evaluated again
together with all the other available evidence. That is not to say
that a broad and indulgent approach is appropriate when
evaluating evidence. Far from it. There is no substitute for a
detailed and critical examination of each and every component
in a body of evidence. But, once that has been done, it is
necessary to step back a pace and consider the mosaic as a
whole. If that is not done, one may fail to see the wood for the
trees."
14
It is so that there are aspects of the evidence given by
some of the police witnesses which are not satisfactory but they relate
in the main to peripheral issues and matters of detail. They are
certainly not of a kind which point to the existence of a deliberate
conspiracy to falsely implicate the appellants. Counsel for the
appellants frankly and correctly acknowledged that, absent any
reasonable possibility of such a conspiracy, the appeal against the
convictions has to fail. I consider that the recorded evidence amply
justifies the finding of the trial court that there is no reasonable
possibility that such a conspiracy existed.
That the police who were patrolling the area in which the
deceased (Makhoba) and the complainant (Njikelani) were shot on Saturday 7 November 1992 would have decided for no reason whatsoever
to pick upon the four appellants who happened to be
15
driving along the road in an unremarkable manner, arrest them, and
then later decide to fabricate a case of murder, attempted murder, and
unlawful possession of firearms and ammunition against them is so
far-fetched a hypothesis that it cannot be seriously entertained. Hence
no doubt counsel for the appellant's concession during argument that
it was proved at least by the State that when the car was searched after
it had stopped two firearms were found in it, namely, a .38 Taurus
revolver (Exh 3) and the 9 mm Browning pistol (Exh 4). That
concession was no doubt made in an attempt to provide some rational
explanation for the police having conspired to target the appellants
(rather than someone else) in their attempt to bring the killers of Mr
Makhoba and Mr Chonco to book. It was a concession rightly made
for the evidence (including the evidence of contemporaneously made
documentary entries in the police records) showed convincingly that
16
those two firearms were indeed discovered in the car in which the
appellants were found very shortly after the attack upon Mr Makhoba
and Mr Njikelani had occurred. Counsel for the appellants sought to
persuade us that given the times testified to by some of the witnesses
as to when the attack occurred, and the time given by the police as to
when they saw and pursued the car, the firearms found in the car
could not have been used in the attack. Apart from the fact that the
times given in evidence were no more than estimates, the ballistic
evidence (about which more anon) showed quite conclusively that
some of the cartridge cases found at the scene of the shooting on
Friday 6 November and some of those found at the scene of the
shooting on Saturday 7 November had been fired from the same
Browning pistol (Exh 4). The version given by the two appellants
who did testify was that they and the second and fourth appellants had
17
borrowed the car in which they were travelling when the police
accosted them. They claimed that the car was one of a number made
available by a particular taxi organization for use by the members and
their drivers to enable them to monitor the movements of taxis whose
owners were members of the organization, and that they had set out
that Saturday afternoon to do just that. They said that they had not
seen any firearms in the car, that they did not race off at high speed
as alleged by the police, that they were not pursued by the police in
the manner described by the police witnesses, that they did not refuse to stop, and that they were not shown any firearms found in
the car by
the police. It was only much later at the police station that it came to
their ears that firearms had allegedly been found in the car. One of
the State witnesses, Mr Madlala, the secretary of the taxi organization
of which the appellants spoke, gave what purported to be confirmatory
18
evidence of the making available by the organization of the car for the
use of any member or taxi driver who chose to take it for the purpose
of monitoring taxi movements and controlling taxi ranks. Before
commenting upon the evidence I should dispose of some subsidiary
matters.
Some reference was made in the heads of argument to the behaviour of the learned judge in the Court a quo. It was suggested
that he had displayed impatience, that he had not allowed counsel to
pursue particular questions and lines of enquiry, and that he had been
discourteous. Further submissions were made relating to an alleged
descent by the learned judge into the arena by way of what were said
to be unduly testing questions put by him to first and third appellants
and to a State witness who gave evidence ostensibly favourable to the
appellants. A special entry which had been made was also canvassed
19
in the heads of argument: it rested upon the premise that the
prosecutor in the Court a quo had failed to make available to the
defence counsel the pre-trial statements made by four of the policemen
who testified at the trial in circumstances in which he should have
done so, and that prejudice to the appellants had resulted. Yet another
alleged irregularity was raised in the heads of argument, namely, the
alleged making by the prosecutor of a communication, in the absence
of defence counsel, to the trial judge of the unavailability of a witness
on a particular day.
During the course of oral argument in this Court counsel
for the appellants wisely abandoned all these points. It is unnecessary
to say more than that they were devoid of any merit, that far from the trial judge having behaved irregularly or discourteously, he
conducted
the proceedings with exemplary patience, and that his interventions
20
were entirely proper and fully justified.
I return to the evidence. I leave aside for the moment the evidence that another two firearms, namely, the 9 mm CZ pistol
(Exh 1) and a .38 Taurus revolver (Exh 2) were also found in the car
and that the 9 mm CZ pistol (Exh 1) was proved to have been the
pistol taken from the deceased (Mr Makhoba) as he lay on the ground.
The defence submission was that these were not found in the car but
acquired somehow or other by the police and falsely tendered as
having also been found in the car.
No less than three ballistic experts from the police
forensic laboratories testified for the State. Each had examined and
conducted experiments with different exhibits. The effect of all their
evidence when pieced together amounted to this. Some of the spent
9 mm cartridges found at the scene of the shooting of Friday 6
21
November and some of those found at the scene of the shooting of
Saturday 7 November were fired from the same 9 mm Browning pistol
(Exh 4). Despite the fact that there was no cross-examination of these ,
witnesses designed to show that they were individually or collectively
parties to a conspiracy to give perjured evidence to secure the
conviction of the appellants, and despite the absence of any serious ,
challenge when the matter was argued in the Court a quo to the accuracy of the conclusions reached by these witnesses, it was
submitted in this Court for the first time that the ballistic experts were
part of such a conspiracy. This submission presupposes that when the
police decided to accuse the appellants of these killings and to send
the firearms and ammunition to the ballistic department for
examination and testing, they had already arranged for no less than
three ballistic experts to participate in the conspiracy. Why the police
22
should have found it desirable to involve so many in so nefarious an
enterprise when one would have sufficed, was not satisfactorily
explained. Nor for that matter were the many negative results to
which the same experts testified. Moreover, the firearms were
available at the hearing and so were many of the spent cartridges.
Thus any attempt by the experts to fabricate results could potentially
have been easily exposed. Much was sought to be made of the fact
that some of the cartridges allegedly found by the police were no
longer available at the trial. Here again, that is hardly a pointer to a
conspiracy. If they never did exist, why would the police have
claimed that they did exist while knowing that, if challenged, they
would not be able to produce them? If they did exist, but ballistic
tests were negative, what would be the point of "losing" them when so
many other spent cartridges which yielded negative results were safely
23
kept and available at the hearing? In short, there was no basis for
entertaining as reasonable the possibility that these experts were parties
to a conspiracy.
The explanation advanced in argument for the presence in
the car of the two firearms which it was conceded were proved to
have been found, was that they had either been left intentionally in the *
car by the persons who had them in their possession before the
appellants took the car, or that those persons had inadvertently left
them in the car. Neither suggestion has any plausibility. That they
were deliberately left in the car despite its availability to all and
sundry provided only that they were members of the taxi organization
or drivers of taxis (there were 800 such members and 3500 such
drivers) is too unrealistic a possibility to be countenanced. That each
of the persons in whose possession each firearm was should have
24
simply forgotten to remove it when leaving the car is also so highly
unlikely that it can be safely discounted. Moreover, the evidence
given by the appellants who testified as to when they took possession
of the car is such that the 9 mm Browning pistol (Exh 4) could not
have been used at the scene of the shooting of the deceased, Mr
Makhoba, and the complainant, Mr Njikelani, if the appellants'
evidence is true. Yet the ballistics evidence shows irrefutably that the
Browning pistol was indeed so used. The evidence of the State
witness, Madlala, was patently untrue. Apart from its inherent
improbability, he purported to be able to recall eleven months after the
event that two of five vehicles belonging to the organization were used
for monitoring purposes on Saturday 7 November 1992 and also
purported to be able to recall the movements of the organization's
vehicles on other days. He created "the poorest impression" upon the
25
Court a quo and a perusal of his evidence fully vindicates that
assessment of him as a witness. Neither the second nor the fourth
appellant gave evidence at all.
The weight of this circumstantial evidence is so great, and
the plausibility of the defence version so weak, that the well-known
tests set forth in R v Blom
1939 AD 88
and amplified in R v de
Villiers
1944 AD 493
are fully satisfied. When one adds to the web
of circumstantial evidence the further fact that one of the other two
firearms found in the car was Mr Makhoba's CZ pistol (Exh 1), the
case against the appellants is well nigh unarguable. It was contended
that this fact was not proved beyond reasonable doubt and we were
referred to various aspects of the evidence which, it was suggested, showed that this firearm had not been found in the car, and that
the
police had acquired it somehow from some other source. In this
26
connection, it was pointed out that no one had been able to identify
the person who removed Mr Makhoba's pistol from its holster as he
lay upon the ground, and that it might have been one of the other three
persons who were present when he was shot, who removed it, and then
handed it to the police. The suggestion is fanciful. The murderous
attack upon the deceased and his companions was sudden and
unexpected. A veritable fusillade of shots was fired at them.
Understandably, those that could, scattered and ran for their lives.
That one of them would have remained behind long enough, and been
intrepid enough, to brave the fusillade until the deceased had been hit
and had fallen to the ground, and until he had succeeded in removing
the deceased's pistol from its holster, is in the highest degree
improbable. And assuming that one of them had done so and had
handed it to the police, was he too party to a conspiracy to represent
27
that the pistol had not been taken by him at the scene and given to the
police, but found in the car by the police? That was not suggested and
again it is inherently improbable. If he was not a party to a
conspiracy, the police would have been taking a very considerable risk
in falsely claiming they had found the pistol in the car when they were
aware that there was a witness who could flatly contradict them.
I do not consider it necessary to discuss the evidence in
any greater detail given the absence of any misdirection by the Court
a quo, and given that Court's full and careful consideration of all the
criticism of the State's evidence raised by defence counsel. It suffices
to say that this is certainly not a case in which a thorough reading of
the recorded evidence leaves me in any doubt as to the correctness of
the trial court's factual findings.
It was not disputed that, if the trial court's primary
28
findings of fact remain undisturbed, the inference that each of the
appellants was knowingly a party to a common purpose to kill the
deceased (Mr Makhoba), and to attempt to kill Mr Njikelani, would be
inescapable. It was also rightly conceded that each of the appellants
would have failed to discharge the onus cast upon him by sec 40 (1)
of the Arms and Ammunition Act 75 of 1969 of proving that he was
not in possession of any one of the four firearms and the ammunition
in it. See S v Mtshemla and Others
1994 (1) SACR 518
(A).
The appeal of the appellants against their convictions must
therefore fail.
The Sentences:
The sentence of death imposed upon the appellants in
respect of Count 2 (murder) must be set aside as a consequence of the
decision of the Constitutional Court in S v Makwanyane and
29
Another
[1995] ZACC 3
;
1995 (3) SA 391.
There is no appeal against the sentences
imposed in respect of the count of attempted murder and the counts
relating to the unlawful possession of arms and ammunition. The case
will be remitted to the Court a quo to enable it to consider an
appropriate substitute for the sentence of death.
In the result, the appeal of the appellants against their
convictions is dismissed. The appeal against the sentence on Count 2
is upheld, the sentence of death imposed in respect of Count 2 is set
aside and the case is remitted to the Court a quo for further hearing
and the imposition of an appropriate substitute for the sentence of
death.
,
R M MARAIS
JUDGE OF APPEAL
Vivier JA) Concur
Streicher AJA )