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[1999] ZASCA 51
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S v Ndweni and Others (376/94, 390/94, 639/98) [1999] ZASCA 51; [1999] 4 All SA 377 (A); 1999 (2) SACR 225 (SCA) (31 August 1999)
REPORTABLE
Case
No: 390/94
376/94
639/98
IN
THE SUPREME COURT OF APPEAL OF
SOUTH
AFRICA
In the
matter between:
BOY
TITI NDWENI 1
st
Applicant
SIPIWE
JAMES BHOLO 2
nd
Applicant
SIPHO
SAMUEL GAVIN 3
rd
Applicant
and
THE
STATE Respondent
CORAM
: SMALBERGER,
GROSSKOPF JJA and MPATI AJA
DATE OF HEARING
: 30
AUGUST 1999
DELIVERY DATE
: 31
AUGUST 1999
________________________________________________________
JUDGMENT
________________________________________________________
SMALBERGER,
GROSSKOPF JJA and MPATI AJA:
This
is an application for leave to adduce further evidence.
The three applicants, Messrs Boy
Titi Ndweni, Sipiwe James Bholo and Sipho Samuel Gavin, were
convicted on 20 June 1994 in the
Transvaal Provincial Division by
Curlewis J and two assessors of three counts of murder and various
other charges, all arising
from the same incident. The second and
third applicants were sentenced to death on each of the three murder
counts (since reduced
to life imprisonment); in respect of the
remaining charges they were both sentenced to substantial periods of
imprisonment.
The first applicant was sentenced to an effective
sentence of 17 years imprisonment on all the counts. The applicants
were refused
leave to appeal by the learned judge
a
quo
with regard to
those convictions and sentences where they did not have an automatic
right of appeal. In a very belated application
to this Court,
following on events to be outlined below, the applicants sought and
were granted condonation, leave to appeal
against their
aforementioned convictions and sentences and confirmation of their
right to seek leave to adduce further evidence.
The incident concerned occurred at
Eikenhof on the morning of 19 March 1993 when a group of persons who
had hijacked a BMW vehicle
and compelled its owner, Mr Nelson Mpunge
(“Mpunge”), to transport them to Eikenhof, fired upon
the five occupants
of a stationary vehicle, killing three and
wounding two of them (“the Eikenhof attack”). Two of
the persons killed,
and one of the wounded, were schoolchildren on
their way to school. At their subsequent trial, at which the
essential issue
was the identity of the attackers, the applicants
were held to be the persons responsible. The main evidence against
them comprised
(1) confessions made by the first and second
applicants which were found to have been freely and voluntarily
made, and (2) their
identification as the perpetrators by certain
witnesses of whom Mpunge was the main one. Their alibi defences
were rejected
by the court
a
quo.
There was no
other evidence linking them to the attack.
It
is common cause that the three applicants have at all relevant times
been members of the African National Congress (“the
ANC”).
On 22 July 1997, more than four years after the incident, and three
years after the applicants’ convictions,
the Azanian People’s
Liberation Army (“APLA”) issued a press statement
claiming responsibility for the Eikenhof
attack. Subsequent
enquiries made on the applicants’ behalf revealed that an APLA
member, Mr Phila Martin Dolo (“Dolo”)
had submitted
applications for amnesty to the Truth and Reconciliation Commission
(“the TRC”) in December 1996 and
February 1997. In the
latter application he claimed that, in addition to other acts, “I
also ordered the Eikenhof ambush
where three people were killed”.
This was subsequently confirmed by Dolo in an affidavit made by him
to the applicants’
legal advisers on 24 November 1997. In the
affidavit Dolo claims that the Eikenhof attack was carried out by a
group of four
trained APLA members and that he subsequently received
reports from them, including two written reports, relating to the
attack.
None of the persons named by Dolo (by their code names) has
come forward and made an affidavit. However, it is claimed on the
papers that one of them, Mr Sipho Polite Xuma, also known as
Bulelani Xuma (“Xuma”), has telephonically confirmed
his
involvement to the applicants’ attorney, although it is
alleged by the respondent that he has since denied any participation
in the attack. The above and other considerations, some of which we
shall allude to in due course, have given rise to the present
application. The relief sought, on which there is no need to
elaborate, is cast in wide terms and involves the calling or
re-calling of a number of specified witnesses. Amongst them are
Dolo and Xuma.
It is not in the interests of the
administration of justice that issues of fact, once judicially
investigated and pronounced
upon, should lightly be re-opened and
amplified (
S v De
Jager
1965(2) SA
612 (A) at 613 A - B). An applicant seeking to re-open a case and
lead further evidence will generally be required
to satisfy the
following requirements:
“
(a) There should be some reasonably sufficient
explanation, based on allegations which may be true, why the
evidence which it
is sought to lead was not led at the trial.
(b) There should be a
prima
facie
likelihood
of the truth of the evidence.
(c) The evidence should be materially relevant to the
outcome of the trial.”
(See
S
v De Jager (supra)
at 613 C - D.)
We
do not propose to analyse, or comment upon, the wealth of material
placed before us in support of, or in opposition to, the
application, much of which is in the nature of hearsay. It would be
both unwise and undesirable for us to express a view on
disputed and
contentious matters which are incapable of resolution on the papers.
It will suffice, for present purposes, to
set out certain facts
which, unless otherwise indicated, are either common cause or not
seriously in dispute. They are:
1)
Mpunge testified at the trial that the persons involved in the
Eikenhof attack told him to “report [to] the police that
they
are APLA and that they will strike again”.
2)
As pointed out earlier, the applicants are members of the ANC; APLA
is the military wing of the Pan Africanist Congress (“the
PAC”).
3)
The ANC and PAC are (and were at the time) different and distinct
political groupings. Although sharing certain common goals
they
were generally in opposition to each other.
4)
Five prospective witnesses who were in the immediate vicinity of
where the shooting occurred made sworn statements to the
police
between one to four days after the event. Three of them, Bennie
Schoonwyk (“Bennie”), Piti (or Pietie) Mthembu
(“Piti”)
and Yvonne Msimango (“Yvonne”) were school children aged
15, 14 and 16 years respectively.
The other two were Mrs Regina
Bonose (“Bonose”) and her husband Mr Joseph Nkosi
(“Nkosi”). Bennie, Piti
and Yvonne were each
individually shown a set of approximately 300 photographs and each
one independently identified from them
the same two persons as being
amongst the attackers. The persons they identified were Xuma and Mr
Muzi William Motha (“Motha”).
Both Xuma and Motha were
known to the police as APLA members. Although there is some dispute
in this regard, it would seem
that from a set of six photographs
shown to them, Bonose identified Motha as one of the attackers while
Nkosi stated that he
(Motha) resembled one of them. All five persons
failed at later identification parades to point out any of the
applicants who
were present on such parades.
5) In December 1994 Dolo was
convicted of murder and various other offences arising out of an
attack on two policemen at Diepkloof
and sentenced,
inter
alia
, to life
imprisonment. A variant of an AK-47 rifle was used in the attack.
On 30 July 1997 Captain Brits, a ballistics expert
with the South
African Police Services, found on testing that the weapon in
question had also been used in the Eikenhof attack.
6)
As previously mentioned, Dolo claimed in his amnesty application in
February 1997 that he had ordered the Eikenhof attack;
and on 22
July 1997 APLA publicly claimed responsibility for the attack. Yet
as far back as May 1995 two “secret reports”
relating to
the Eikenhof attack, purporting to be written by APLA members, were
seized by members of the South African Police
Services in a raid on
a so-called “safe house” used by APLA members. Doubts
have been raised on the papers as to
the authenticity of these
reports. It is now conceded that the reports are in Dolo’s
handwriting, but he apparently claims
to have copied them from the
original reports submitted to him, which he then destroyed. This
was done, according to him, for
security reasons. However, what is
beyond dispute is that the reports were already in existence in
1995, more than 18 months
before the first claim of APLA’s
involvement was made.
7)
Preliminary security police reports compiled after the Eikenhof
attack concluded that APLA was to blame for the attack. In
later
reports, however, a different conclusion was reached.
8)
In the course of an enquiry into the claims made by APLA conducted
by a Deputy Attorney-General, Mr Anton Ackermann, Mpunge
(whose
evidence of identification at the trial revealed some confusion) on
27 August 1997 made a further statement in which,
while abiding by
his original statement, he alleged the following:
“
I went to two (2) ID-parades. Before the first
ID-parade a photograph of Mr Dawid Mokoena was shown to me by a
white police official
and the police official told me that this is
the man that hi-jacked my car and I must go to the ID-parade to
point out the man
on the photograph on the ID-parade. I went to the
ID-parade and pointed the man out. This man was later released by
the police.
5.
Before the second ID-parade a white police official
showed photographs of Siphiwe Bholo and Boy Titi Ndweni to me and
asked me
if I knew them. I said no. He told me that the two (2)
persons on the photographs confessed that they were involved in the
Eikenhof incident and that I must go to the ID-parade and point the
two (2) persons out. I went to the ID-parade and pointed the
above-mentioned two (2) persons out.”
In
a later statement made on 21 May 1998 he retracted these allegations
and denied that any photographs had ever been shown to
him.
In essence the applicants seek to
re-open their trial and lead further evidence (including recalling
certain witnesses who have
already testified) with regard to whether
they, or APLA members instructed thereto by Dolo, were responsible
for the Eikenhof
attack. The evidence they seek to lead satisfies
requirements (a) and (c) in
De
Jager
’s case
(
supra
).
The common cause facts listed in paras 5, 6, 7 and 8 above, which
are materially relevant to the ultimate outcome of the trial,
only
came to light after the conclusion of the trial. The facts referred
to in para 4 were known to the prosecuting authorities
at the time
of the trial. The witnesses who were not called by the State were
made available to the defence. The fact that
at the time APLA had
not yet claimed responsibility coupled with an apparent lack of
knowledge or appreciation on the part of
defence counsel that at
least three of the witnesses had pointed out photographs of the same
persons, and that these were APLA
members, provides a reasonably
sufficient explanation for the matter not having been pursued to the
full by defence counsel.
What is important, in our view, is that
the facts referred to in para 4 should have been brought to the
attention of the trial
court. Whether anyone was at fault in not
doing so is something on which we prefer not to comment as the full
facts concerning
the matter are not available to us.
Requirement (b) in
De
Jager
’s case
remains to be satisfied. One would normally be sceptical of a claim
of responsibility first made nearly four years
after the event in
circumstances potentially non-prejudicial to its maker (because he
is already serving a maximum gaol sentence
and has a pending amnesty
application). More particularly this would be so where, as is
evident from the papers, such claim
is (at least in some measure)
subject to conflicting reports, characterised by vagueness and
inconsistency, open to serious challenge
and, furthermore, is
unconfirmed on oath by any of the alleged participants in the
Eikenhof attack. However, we are not called
upon to decide at this
stage whether Dolo’s claims are true or not. In
S
v Steyn
1981(4) SA
385(C), Marais AJ, after an exhaustive review of the relevant
authorities, came to the conclusion that the test of
“a
prima
facie
likelihood
of the truth of the evidence” meant no more than that, in a
matter such as the present, the evidence tendered
should
prima
facie
reasonably
possibly be true (at 392 H). There is much to be said for the
correctness of that approach. Whether that is the
test, or the
correct test is somewhat more stringent is a matter we need not
decide. In our view, if proper regard is had to
the effect on the
evidence which the common cause or undisputed facts we have listed,
taken cumulatively, may (not necessarily
will) have when it comes to
finally weighing up probabilities, drawing inferences and assessing
credibility, the test would be
satisfied in either instance. In any
event, and without elaborating, there are special features present
arising from the unusual
circumstances of this matter which would
justify, by way of exception, the re-opening of the case. (
Cf
S v Myende
1985(1)
SA 805 (A) at 811 E - F.) The dictates of fairness require that all
relevant information bearing on the applicants’
guilt or
innocence should be before the trial court to enable it to determine
the true facts, lest there be an injustice either
to the applicants
or the State.
In
the result the applicants have made out a satisfactory case for the
relief they seek, although not on the wide terms set out
in the
notice of motion. The relief will be confined to the terms set out
in the order to be made.
It
must be emphasised that success in the application does not
guarantee the applicants’ acquittal in due course. The
final
outcome of the trial will ultimately depend upon the trial court’s
impression of the witnesses who testify and its
overall assessment
of the relevant facts and probabilities. The evidence sought to be
led may not, in the end result, after
being subjected to testing and
careful scrutiny, prevail against other, more acceptable or
persuasive evidence.
The
following order is made:
1) The convictions and sentences of the applicants
(appellants) on all counts are set aside;
2) The matter is remitted to the trial court
(i) to allow the applicants to call or re-call some or
all of the following witnesses for the purposes of examination or
further
cross-examination, as the case may be, and to hear their
evidence or further evidence to the extent that such evidence is
relevant
and admissible:
(a) Mr Phila Martin Dolo
(b) Prof Tom Lodge
(c) Mr Letlapa Happy Mphahlele
(d) Mr Sipho Polite Xuma
(e) Capt T J Brits
(f) Mr Bennie Schoonwyk
(g) Ms Yvonne Msimango
(h) Mrs Regina Bonose
(i) Mr Joseph Nkosi
(j) Mr Nelson Mzwamadoda Mpunge
(k) Mr Abel Korope
(l) Capt W M Botha
(m) Insp S J Grundling
(n) Mr Piti Mthembu
(o) Col W C Landman
(ii) to allow, in the exercise of its discretion,
either the applicants or the respondent to call any further
witnesses whose
evidence it (the trial court) considers to be
relevant and material to a just determination of the issues between
the applicants
and the respondent, and;
(iii) to consider the further
evidence led, hear argument thereon and give a decision
de
novo
on all the
evidence.
3) We express the hope that, in the interests of the
proper administration of justice, the further proceedings will
commence as
a matter of urgency and be disposed of as expeditiously
as possible.
____________________
J
W SMALBERGER
JUDGE
OF APPEAL
____________________
F
H GROSSKOPF
JUDGE
OF APPEAL
__________________________
L
MPATI
ACTING
JUDGE OF APPEAL