Brief Summary

Criminal Law — Murder — Conspiracy to commit murder — Appellants, leaders of the Afrikaner Weerstandsbeweging (AWB), convicted of four counts of murder and six counts of attempted murder following a violent roadblock incident — Appellants planned to intimidate and attack motorists, resulting in the deaths of four individuals and injuries to others — Legal issue of whether the appellants were correctly found guilty based on the evidence presented — Court upheld the convictions, finding the appellants' actions constituted a deliberate and unlawful attack on innocent victims, dismissing their claims of self-defense and the unreliability of state witnesses.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a criminal appeal in the Supreme Court of Appeal of South Africa against convictions and sentence. The appeal concerned the criminal liability of two senior members of the Afrikaner Weerstandsbeweging (AWB) for multiple counts of murder and attempted murder arising from a violent incident at a staged roadblock.

The parties were Deon Martin (first appellant) and Philippus Cornelius Kloppers (second appellant), as appellants, and the State as respondent. The appellants held leadership positions within the AWB and were described as, respectively, an area commandant and a chief commandant.

The matter came on appeal from the Witwatersrand Local Division, where Stegmann J (sitting with two assessors) convicted each appellant on four counts of murder and imposed death sentences in respect of those counts. They were also convicted on other charges, including six counts of attempted murder, and sentenced to an effective 20 years’ imprisonment on those additional counts. The appeal against the murder convictions proceeded in terms of section 316A of the Criminal Procedure Act 51 of 1977, and the appeal against the attempted murder convictions proceeded with leave granted by the trial court. There was no appeal against the remaining convictions and sentences.

The dispute centred on the events of 12 December 1993, when a group of AWB members established a fake roadblock and subsequently shot at a group of road users who had been forced to sit beside the road. The central appellate controversy concerned whether the appellants’ version that they acted in response to shots fired at them (a form of self-defence) could reasonably possibly be true, and whether the State witnesses were sufficiently credible to sustain the convictions.

2. Material Facts

It was common cause that the appellants were the joint commanders of a group of nine AWB members who gathered on the evening of Sunday, 12 December 1993, near Randfontein, and decided to establish a roadblock. The group was armed (save for one member who carried a club) and dressed in camouflage. The weaponry included shotguns, home-made shotguns (“pype”), and handguns, including the second appellant’s .38 Arminius revolver. The group obtained a blue light and other equipment to create the appearance of an official traffic roadblock, and obscured their vehicle registration numbers with masking tape.

The State evidence accepted by the trial court (and not displaced on appeal) was that the group implemented a plan whereby the appellants, travelling ahead in the first appellant’s Mercedes-Benz, would identify vehicles with black occupants and signal to a white Nissan Sentra positioned at the roadblock to activate the blue light. Vehicles would then be forced to stop and be pulled off the road at the Rodora crossing on the Krugersdorp–Ventersdorp road. Several vehicles were stopped in this manner. One victim, Abel Seboholi, was assaulted but later allowed to leave and reported the incident to the police.

Later that night, shortly after 23h00, a Honda Ballade and a Toyota Cressida were stopped. The trial court found that the occupants were unlawfully assaulted and forced to sit in a row on the ground. It further found that, after the vehicles were stopped and the occupants seated, members of the group gathered and agreed that their common purpose would be expanded to an armed attack on the seated road users, and that the armed members would load their firearms and shoot at the seated people in a substantially simultaneous manner to prevent escape. The trial court found that the intention was to wipe out the group and leave as little evidence as possible.

As a result of the shooting, four people died, including a 13-year-old child, and others were seriously injured, giving rise to the murder and attempted murder charges. Some victims were robbed of possessions and clothing. The trial court did not find that the appellants themselves took stolen property and therefore convicted them on the robbery count only of assault with intent to do grievous bodily harm. After the attack, the Honda and Toyota were set alight, but the appellants were acquitted on the malicious damage to property charges.

A further fact accepted on the record was that, after the incident, the first appellant admitted that he cut off the ear of one of the victims (who later died in hospital). The first appellant handed the ear to the second appellant in the vehicle, and the second appellant later delivered it to an AWB general.

The principal disputed factual issue on appeal concerned the appellants’ claim that the shooting occurred because they spontaneously responded to shots fired at them from the dark, and that they did not shoot at the seated victims. This version depended in part on the appellants’ account of events immediately preceding the shooting and on alleged inconsistencies in the testimony of the State’s eyewitnesses, particularly Shabangu, the only surviving occupant of the Honda.

The trial court identified contradictions among State witnesses about the presence and timing of a bakkie (pickup truck) at the scene. It accepted that the witnesses’ accounts on that limited issue were unreliable and likely the product of discussion among witnesses, but held that this did not undermine the State case as a whole once that episode was placed to one side.

3. Legal Issues

The appeal raised two interrelated legal questions.

First, the court had to determine whether the State witnesses’ credibility and reliability, especially that of Shabangu, were so compromised by contradictions and alleged tailoring of evidence that their evidence should be rejected, thereby undermining proof of the appellants’ participation in the shootings.

Second, flowing from the credibility challenge, the court had to decide whether the appellants’ version—that they fired only in response to shots allegedly fired at them from the dark and in a different direction from the seated victims—was reasonably possibly true. This was, in substance, a dispute about the application of the criminal standard of proof to disputed facts, and about whether the asserted defensive version could be reconciled with the probabilities and objective evidence.

Although the case involved factual disputes, the court’s task was not to retry the matter but to assess whether the trial court was correct in rejecting the defensive version and in finding, on the accepted facts, that the appellants acted with the necessary form of intention and with a common purpose to kill.

4. Court’s Reasoning

The court approached the credibility attack by dealing directly with the main area of acknowledged inconsistency, namely the evidence about the bakkie. It noted that the trial court itself had accepted that the bakkie episode suggested that eyewitnesses had discussed events among themselves and that this required careful scrutiny of their reliability. However, the trial court had also found that, once the bakkie episode was put aside, there was no other significant criticism that could be levelled against the State witnesses. The Supreme Court of Appeal agreed with that approach and accepted that the bakkie contradictions did not, in themselves, “end” the State case.

Turning to the appellants’ self-defence version, the court emphasised that the defence was raised only at a relatively late stage in the proceedings. It was first advanced on the second day of the trial, and the appellants had not mentioned it in earlier opportunities to explain their conduct. The court treated this omission as significant, particularly because the alleged defensive reaction was described as the core of their defence. The appellants were unable to give a satisfactory explanation for why such a fundamental contention was not disclosed earlier.

The court also held that the self-defence version was inconsistent with what had been said previously to the police by the appellants. It referred to the first appellant’s statement in which he described hearing two shots and then firing his shotgun “in general,” and to a remark during a pointing out indicating that “the deceased sat here when we shot them.” The second appellant’s statement, read in context, referred to the group’s own firearms rather than to any incoming fire from assailants. These earlier statements did not support the later claim that the appellants fired only at unknown attackers in the dark and not at the seated road users.

The court further analysed the probabilities inherent in the appellants’ reconstruction. On their version, two Honda occupants (Shabangu and More) would have disembarked earlier with firearms to stage an attack, while the Honda would then be driven to the roadblock in a way that would place the driver in the line of fire of his supposed accomplices. The court regarded this scenario as inherently improbable. The defence also depended on inferences drawn from where a body was found and the discovery of a shotgun wad near the body, coupled with an argument that Shabangu could not have dragged the injured person because no blood trail was found. The court accepted the State’s response that these features could be explained in multiple speculative ways and did not constitute decisive proof for the defence.

The decisive objective feature identified by the court was the ballistic evidence and the recovery of two bullets linked, by a process of elimination, to the second appellant’s Arminius revolver. One bullet was found in the head of More, and another in the clothing of Makhuza. The court reasoned that Makhuza, on the appellants’ own account, was the Honda driver and thus not part of the supposed attacking party in the dark. This evidence, together with the positioning of victims as described by the State witnesses, supported the conclusion that the second appellant fired in the direction of the seated victims. The court also considered and rejected, on the circumstances described, the suggestion that the bullet in Makhuza’s clothing could plausibly have been a ricochet.

The court additionally relied on the appellants’ conduct immediately after the shooting. It noted that after the attack the scene became suddenly quiet, that the appellants remained behind with others to search for cartridge cases by torchlight, and that the first appellant cut off a victim’s ear. The court treated this behaviour as inconsistent with a genuine belief that an armed attacking group was nearby in the darkness. It also noted the absence of any weapons at the scene that could support the claim that the roadblock party had come under fire.

On this body of reasoning, the court agreed with the trial court that the self-defence version was fabricated and properly rejected as far-fetched. Once that defence failed, the court held that the appellants’ conduct before, during, and after the incident supported the inference that, at least by the time of the attack on the seated victims, they shared a common purpose to kill. The court accepted the trial court’s finding that the form of intention was dolus directus, and recorded that there was no argument on appeal that this finding would be wrong if self-defence failed.

Finally, in relation to sentence, the court noted the practice in matters of this kind to refer the case back to the trial court for reconsideration of sentence. It therefore set aside the death sentences and remitted the matter for the imposition of appropriate sentences on the murder counts.

5. Outcome and Relief

The appeal against the convictions on counts 1 to 10, including the murder and attempted murder convictions, was dismissed. The appellants’ convictions accordingly remained intact.

The appeal against the death sentences on the four murder counts succeeded, and those death sentences were set aside. The matter was referred back to the trial court for the imposition of proper sentences in respect of the four murder counts.

The judgment excerpt does not record a separate costs order, and none is reflected as having been made.

Cases Cited

No prior cases are expressly cited in the provided judgment text.

Legislation Cited

Criminal Procedure Act 51 of 1977, section 316A.

Act 126 of 1992, section 20(4)(a)(i) and (ii).

Rules of Court Cited

No rules of court are expressly cited in the provided judgment text.

Held

The Supreme Court of Appeal upheld the trial court’s rejection of the appellants’ self-defence version as not reasonably possibly true, and accepted that the evidence, including ballistic findings and the appellants’ own prior statements and conduct, established that they fired in the direction of the seated victims and shared a common purpose to kill.

The convictions on counts 1 to 10 were confirmed. The death sentences imposed on the murder counts were set aside, and the matter was remitted to the trial court for the imposition of appropriate sentences on those counts.

LEGAL PRINCIPLES

A court may treat significant contradictions on a discrete factual feature (here, the “bakkie” episode) as undermining witness reliability on that feature, yet still accept the balance of the State case where, after careful scrutiny, the remaining evidence is coherent and credible. The impact of contradictions is assessed contextually rather than mechanically.

A defensive version advanced belatedly, particularly where it constitutes the foundation of the defence, may properly be approached with caution where it was not raised at earlier opportunities and where the accused cannot explain the omission. Prior statements and conduct inconsistent with the later version may strengthen the inference that the defence is fabricated.

Objective evidence, including ballistic evidence that links projectiles to an accused’s firearm, can decisively contradict a version that the accused did not shoot toward the victims. Where such objective evidence places the accused’s fire in the victims’ direction, a court may reject as implausible a claim that shots were directed only at unknown attackers elsewhere.

Post-incident conduct may be relevant to evaluating the plausibility of self-defence. Conduct indicating calmness, a lack of urgency, or actions inconsistent with fear of imminent attack may weigh against a claim that the accused believed they were under armed threat.

Where the evidence supports that participants agreed to and executed an armed attack on defenceless victims, and acted to ensure lethal outcomes, a finding of common purpose to kill and dolus directus may be sustained.

S v Martin en 'n Ander (350/94) [1997] ZASCA 102 (21 November 1997)