Summary of Judgment

Introduction

The matter was a criminal appeal to the Supreme Court of Appeal of South Africa against both convictions and sentences imposed after a trial in the Bophuthatswana Provincial Division (as it then was). The appeal was pursued by Lesego Kgengwe as appellant against the State as respondent, with leave to appeal having been granted by the Supreme Court of Appeal.

At trial, the appellant and a co-accused, Captain Sono, were jointly charged with murder, robbery, and attempted murder arising from an armed incident at a jewellery store. They pleaded not guilty but were convicted on all counts. The appellant received life imprisonment for murder and determinate terms of ten years (robbery) and twelve years (attempted murder), with one concurrency order made in respect of the attempted murder sentence.

On appeal, the Supreme Court of Appeal was required to assess whether the convictions were supported by the evidence accepted by the trial court (particularly the identification evidence and corroborating circumstances), and whether the sentences were vitiated by misdirection or were disproportionate. The Court also dealt with a further question concerning the proper concurrency of sentences in light of statutory provisions.

A preliminary feature of the appeal was the Court’s criticism of the poor quality of the record, including duplications and the omission of documentary exhibits such as the plan and photographs. The Court noted that these defects were serious enough to consider striking the appeal from the roll, but proceeded to determine the merits because it had a firm view of the appropriate outcome and because finalisation served the interests of justice.

Material Facts

The events giving rise to the charges occurred on 25 June 1993 at Mafikeng Jewellers in Main Street, Mafikeng, owned by Mr and Mrs Maree. A man entered the premises and proceeded to the workshop area at the back, where Mr Maree, Mrs Maree, their granddaughter, and Mr Snyman were present. The assailant seized Mr Maree by the collar and shot him in the face with a pistol. Mr Maree died immediately.

Immediately thereafter, Mr Snyman attempted to intervene and was shot, sustaining a wound to his hand. Additional shots were fired, including a shot that shattered a glass display cabinet in the shop area. During the incident, Mr Mokise was in the front of the shop; he witnessed the shooting and testified that a second person, whom he could not identify, grabbed him and threw him onto the street. Mokise observed the shooter leave the shop and go down the street. After the incident, a tray of silver bracelets was discovered to have been removed from the shattered cabinet.

The State case relied materially on the proposition that the appellant was the shooter. The appellant was identified as the person who fired the shots by Mrs Maree, Snyman, and Mokise. Additional evidence placed the appellant fleeing with a firearm: Mrs Swanepoel, a neighbouring shop manageress, heard shots, went to her door, and observed a man whom she identified as the appellant hurrying past holding a pistol and attempting to conceal something under his jacket. Mr and Mrs da Silva, positioned across the street, testified that the appellant ran along the street carrying a box and holding a pistol, and entered a white van/bakkie which drove away.

A further important factual strand concerned events shortly after the incident. Two policemen, Sergeants Khoela and Pieterse, testified that at a roadblock near Sannieshof (about 120 kilometres from Mafikeng) they stopped a white bakkie driven by Sono later that day. The appellant was the only passenger. He had a fresh wound on his left arm and gave an explanation that it was caused by the fan belt of a harvester. A search revealed a 9 mm parabellum pistol in the cubby-hole and a bracelet under a seat. The appellant told Khoela that the pistol belonged to Sono. It was common cause that spent cartridges recovered from the jewellery shop had been fired from that handgun, and Mrs Maree identified the recovered bracelet as originating from her shop.

The appellant’s version was that he had accompanied Sono and two others, known only as Zachs and Ticky, to Mafikeng; that he was compelled by Zachs and Ticky to accompany them to the jewellery store; and that he acted under duress. He denied possessing a pistol, asserted that Zachs fired the shots, and stated that after the shooting he attempted unsuccessfully to remove jewellery from a cabinet, cutting his hand on broken glass. He also denied entering the workshop area at the back of the shop. He alleged that after they fled, they went to Danville, where Zachs allegedly instructed Sono to keep the firearm temporarily and that they thereafter drove towards Wolmaranstad for the bakkie to be sold. Sono’s evidence was said to corroborate the appellant’s version to some extent, but the appeal judgment did not consider it necessary to elaborate on that testimony.

A significant evidential dispute concerned the reliability of identification at various identification parades held about a week later. Several witnesses relied, to varying degrees, on a distinctive scar or mark around the outer aspect of the appellant’s left eye. Mrs Maree disclosed that she had been told by Major Brand (and also by her son) to look for a suspect with a mark/scar, that she saw the appellant being taken out of a police van on arrival, and that there had been a discussion among witnesses (excluding Snyman, who was in another room) about the suspect’s scar before the parade. Other witnesses denied such discussion. In consequence, the trial court treated certain identifications with caution and excluded some from reliance.

Legal Issues

The appeal required determination of whether the State had proved beyond reasonable doubt that the appellant was the perpetrator of the shooting and associated crimes, given that the defence contested identity and raised a version of participation under compulsion. This entailed a question of fact (identification and credibility), together with the application of legal principles governing the assessment of identification evidence and the evaluation of an accused’s version.

A further issue was whether the trial court’s sentences were vitiated by misdirection or were so severe as to warrant appellate interference. This was primarily a question involving the exercise of discretion in sentencing and whether the trial court had properly balanced the appellant’s personal circumstances against the seriousness of the offences.

A discrete legal issue arose in relation to the proper concurrency of sentences: whether the determinate sentence on the robbery count ought to run concurrently with the life sentence, in light of section 32(2)(a) of the Correctional Services Act 8 of 1959 and the trial court’s omission to make an express order similar to that made for the attempted murder count.

Court’s Reasoning

The Court began by addressing the state of the appeal record. It emphasised that an appellant’s attorney bears responsibility to ensure a properly prepared record. While minor transcription errors might be tolerated, the repeated duplication of pages and omission of exhibits were described as serious. The Court indicated it had considered striking the appeal from the roll but proceeded because it had a firm view of the outcome and because final disposal was in the interests of justice.

On the merits of conviction, the Court considered the trial court’s approach to identification evidence and found no fault with it. The trial court had been alive to the dangers inherent in identification, particularly where a distinctive facial feature (the scar) might have been the subject of suggestion or contamination. Because Mrs Maree had been prompted to look for a scar and had observed the appellant before the parade, and because there was evidence of pre-parade discussion among witnesses, the trial court did not rely on her identification. The trial court similarly regarded it as unwise to rely on Mrs Swanepoel’s identification because her observation was brief and because she might have been present during the discussion about the scar. The trial court also discounted the da Silvas’ identification insofar as it depended on the scar, noting the distance from which they observed the fleeing person and pointing to Mrs da Silva’s initial misidentification of a court orderly.

Against this, the Court endorsed the trial court’s reliance on the evidence of Snyman and, to a lesser extent, Mokise. Snyman was not present during the discussion about the scar and was regarded as a satisfactory witness with an adequate opportunity to observe the assailant notwithstanding the frightening circumstances. Mokise was also described as an honest witness and was found to have had sufficient time to see the appellant’s face, with the trial court considering it doubtful that he had been exposed to the scar discussion before the parades. On appeal, counsel for the appellant conceded the honesty of these witnesses but argued that the circumstances were not ideal for identification. The Court accepted that the conditions were not ideal but held that the trial court had carefully evaluated the circumstances and that its approach could not be faulted.

The Court further treated other evidence as corroborative of the trial court’s conclusion on identity and involvement. Even though the trial court did not rely on certain identifications as primary proof, it considered that the evidence of Mrs Swanepoel and Mr da Silva strongly corroborated the finding that the appellant fled to and entered the bakkie while armed. The Court also stressed the significance of the roadblock evidence, which placed the appellant and Sono in possession of the murder weapon and stolen property shortly after the incident. The appellant’s false explanation to police for his fresh arm injury was regarded as undermining his case.

Finally, the Court considered the appellant’s version and held that it was so improbable that it could not reasonably be true. A central feature was that it was common cause that the appellant was in the jewellery shop when shots were fired; his explanation for being there (and the asserted coercion by unidentified companions) was characterised as far-fetched and not credible. The Court noted that the trial court had given detailed reasons for rejecting the appellant’s evidence and found it unnecessary to repeat them. From these considerations, it concluded that the appeal against conviction had to fail.

On sentence, the Court considered the submission that the trial judge overemphasised the seriousness of the offences and neglected the appellant’s personal circumstances. It recorded that the appellant was young, had no previous convictions, was reasonably well educated, and came from a stable family background, and that counsel argued he should be afforded an opportunity for rehabilitation. The Court accepted that there was force in the submission regarding youth and prospects of rehabilitation, but held that these factors had to be weighed against the gravity of the crimes. It described the appellant’s conduct as callous, involving a resort to robbery for personal gain and a willingness to kill to achieve that object, and emphasised that courts are obliged to act firmly in cases of this kind. It concluded that although severe, the sentences were not unreasonable or disproportionate, and that the trial judge exercised a proper discretion without misdirection.

However, the Court identified an issue in the structuring of the sentences. The trial court had ordered the sentence on count 3 (attempted murder) to run concurrently with the life sentence on count 1 (murder), but had made no similar order for count 2 (robbery). The Court treated this as an oversight and, in any event, held that section 32(2)(a) of the Correctional Services Act 8 of 1959 made it clear that the sentence on count 2 must also run concurrently with the life sentence. It accordingly made an order to that effect.

Outcome and Relief

The Supreme Court of Appeal dismissed the appeal against the convictions on all counts and dismissed the appeal against sentence in substance, finding no misdirection and no basis for appellate interference in the severity of the sentences.

The Court granted limited relief by correcting the structure of the sentences. It ordered that the sentence on count 2 (robbery) run concurrently with the sentence of life imprisonment on count 1 (murder). Save for that concurrency order, the appeal was dismissed. The judgment does not record any separate costs order.

Cases Cited

No cases were expressly cited in the judgment.

Legislation Cited

Correctional Services Act 8 of 1959, section 32(2)(a)

Rules of Court Cited

No rules of court were expressly cited in the judgment.

Held

The Court held that the trial court’s reliance on the identification evidence of Snyman (and to a lesser extent Mokise) was justified and that the trial court had correctly approached the risks associated with potentially contaminated identification evidence, accordingly excluding reliance on certain witnesses where suggestion could not be ruled out. The corroborative evidence, including possession shortly after the incident of the firearm proved to be the murder weapon and an item of stolen property, together with the improbability of the appellant’s version, supported the convictions.

The Court held that the sentences imposed were severe but not disproportionate and involved no misdirection warranting appellate interference. It further held that the robbery sentence should run concurrently with the life sentence in terms of section 32(2)(a) of the Correctional Services Act 8 of 1959, and corrected the sentencing order accordingly.

LEGAL PRINCIPLES

The judgment applied the principle that identification evidence must be approached with caution, particularly where there is a risk of suggestion or contamination, such as where witnesses are alerted to a distinctive feature of a suspect before an identification parade or engage in pre-parade discussions. Where such risks are present, a court may properly decline to rely on the affected identification evidence and instead evaluate other evidence capable of reliable support.

The judgment further applied the principle that where a trial court has carefully evaluated the reliability of witnesses and the circumstances of observation and identification, an appellate court will not interfere merely because conditions were not ideal, especially where there is corroboration from independent evidence.

In assessing the accused’s version, the judgment applied the approach that a version that is so improbable that it cannot reasonably be true may be rejected, particularly where it fails to provide a credible explanation for established circumstances such as presence at the scene and subsequent incriminating facts.

On sentence, the judgment applied the principle that appellate interference is not warranted in the absence of misdirection or where the sentence is not shown to be unreasonable or disproportionate in light of the seriousness of the offences and the offender’s personal circumstances. The sentencing analysis reflects a balancing exercise between mitigating personal factors (youth, absence of previous convictions, educational and family background) and aggravating features (violent, lethal conduct in the course of robbery).

Finally, the judgment applied the statutory principle (as stated by the Court) that section 32(2)(a) of the Correctional Services Act 8 of 1959 governs the concurrency of determinate sentences with a sentence of life imprisonment, justifying the order that the robbery sentence run concurrently with the life sentence.