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FORM AREPORTABLE
FILING SHEET FOR SOUTH EASTERN CAPE LOCAL DIVISION JUDGMENT
PARTIES: MBUYISELI C ROBIYANA and OthersAppellants v
THE STATERespondent
• Case Number: CC55/2001
• High Court: BHISHO
• DATE HEARD: 14 March 2008
• DATE DELIVERED: 27 June 2008
JUDGE(S): DHLODHLO ADJP, GREENLAND A.J., DARWOOD A.J.
LEGAL REPRESENTATIVES –
Appearances:• for the Applicant(s): ADV T. N. PRICE• for the Respondent(s): ADV J.J. CILLIER
Instructing attorneys:• Applicant(s): APPELLANT • Respondent(s): DIRECTOR OF PUBLIC PROSECUTIONS
CASE INFORMATION -• Nature of proceedings: CRIMINAL APPEAL• Topic: ACCOMPLICE EVIDENCE \ ADMISSABILITY OF STATEMENT OF
AN ACCOMPLICE TO CORROBORATE A SECTION 204 WITNESS
• \Key Words: UNCORROBORATED ACCOMPLICE
STATEMENT OF CO-ACCUSED AS EVIDENCE
Appellants were convicted on various counts including murder,
attempted murder, malicious injury to property and unlawful
possession of firearms on account of their alleged involvement in a
turf war between rival taxi organisations.
Accomplice evidence – accomplice called in terms section 204 of the
CPA - reliance by court on evidence of accomplice without
corroboration of the accomplice in his incrimination of the appellants
– approach reviewed and restated – such reliance upheld
Statement of co-accused – not admissible against appellants –
appellants cross-examining accomplice called in terms of section 204
of the CPA- appellants cross-examining such witness on contents of
the statement – such action rendering statement admissible –
statement admissible in terms of section 3(1)(c) of the Law of Evidence
Amendment Act 45 of 1988 as hearsay evidence admissible in the interests
of justice – statement admissible as corroboration of the accomplice in his
incrimination of the appellants
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IN THE HIGH COURT OF SOUTH AFRICA
BISHO
CASE NO: CC55/2001
In the matter between:
MBUYISELI CHRISTOPHER ROBIYANA 1ST APPLELLANT
MLONDOLOZI MAMA 2ND APPELLANT
TEMBEKILE SOLWANDLE 3RD APPELLANT
and
THE STATE RESPONDENT
APPEAL JUDGMENT
GREENLAND A J:
[1] This is an appeal against the convictions and sentences imposed on the
appellants by the High Court, Bisho on 15 May 2003, after a trial lasting just
over one year. The trial record comprises some 25 volumes totalling 1666
pages. The appellants were granted leave to appeal by the Supreme Court of
Appeal after such leave was refused the appellants and four (4) other accused
with whom they were tried by the trial judge, White A.J.P.
3
First appellant was found guilty on two (2) counts of murder, four (4) counts
of attempted murder, four (4) counts of malicious injury to property and one
(1) count of unlawful possession of a firearm.
Second appellant was convicted on one (1) count of unlawful possession of a firearm and one (1) count of unlawful possession of ammunition.
Third appellant was convicted on one (1) count of murder, one (1) count of unlawful possession of a firearm and one (1) count of unlawful possession of ammunition.
Right at the outset it is made clear that there was no attack on the court’s
findings that the crimes were actually committed. The issue for
determination is whether the court a quo was right in concluding that it was
proved beyond reasonable doubt that the appellants were complicit in the
commission of the crimes of which they stand convicted.
Background[2] In all the appellants faced thirty (30) counts involving, inter alia,
murder, attempted murder, racketeering and unlawful possession of firearms
all arising out of a saga, spanning the period September 1999 to May 2000,
of violent strife, colloquially known as a turf war, between two taxi
organisations constituted as Melta Non Racial Taxi Organization (Melta Non
Racial) and Mdantsane and East London Taxi Association (MELTA).
Appellants were all members of Melta Non Racial which had broken away
from MELTA. Note that the name Melta Non Racial does not denote a racial
grouping.
Basis of convictions
4
[3] In summary the convictions were founded on – (italicised quotes are
extracts from the judgement)
a) as regards all the appellants
i) acceptance of evidence establishing the commission of the offences;
ii) acceptance of the evidence of an accomplice witness, one Lungile John
Nyalela (“Nyalela”), having been warned in terms of section 204 of
the Criminal Procedure Act, No.51 of1977, (“the CPA”);
iii) an overall finding that, as regards each appellant, upon weighing up the
evidence of the State witnesses against that of the appellant, the court
was satisfied that “…..the evidence of the accused is not reasonably
possibly true”;
iv) an adverse finding regarding the appellants’ professed lack of memory
formulated as “it is surprising that not one of the accused can
remember where they were on any of the relevant days” and
elaborating by pointing out that the last of the incidents had occurred
barely two months before their arrest;
v) a rejection of a claim that the police must have coached Nyalela into
implicating the appellants;
vi) a finding of the existence of corroboration of Nyalela’s evidence in the
confession of a coaccused Vuyo Johnson Grootboom (“Grootboom”)
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who was tried and convicted as accused 2;
b) as regards the First Appellant
i) an adverse finding that his bare denial of the State evidence of the saga of
violence that undoubtedly had occurred on an ongoing basis simply
did not ring true accepting his admitted status as an executive member
of Melta Non Racial holding the position of Public Relations Officer;
ii) an adverse finding that in the circumstances his evidence, that the
executive of Melta Non Racial did not meet in order to address such
terrible and extraordinary events, was highly improbable;
iii) a finding that conversely the evidence of this witness “painted a picture
which would have been fertile ground for Melta Non Racial attacking
Melta … (as) .. their drivers were shot and taxis burnt shortly before
the attacks on Melta, mentioned in this case, occurred.”;
c) as regards Second Appellant
a finding that it was safe to reject the appellant’s evidence which was
essentially a “bare denial’ when “…..weighed against Nyalela’s
evidence, bearing in mind the general weaknesses in the witness’
evidence”;
d) as regards Third Appellant
an adverse finding that the witness’s evidence in denial of knowledge
of some of the violent incidents, and of knowing Nyalela and accused
2, both of whom implicated him, was “…so improbable as to be
6
unacceptable …..(and)...manifestly simply an attempt to exonerate
himself.”
Demeanour and credibility findings
[4] From the above it is obviously the case that the court was unimpressed with each of the appellants as witnesses. Not surprisingly therefore, on appeal reliance was placed on the fact that the court a quo made no specific adverse findings as to the demeanour of the appellants. In the absence of adverse findings regarding demeanour, so the submission must be formulated herein, the court should not have found that “...the evidence of the accused is not reasonably possibly true”.
a) It is of cause trite that demeanour is one of the factors that a court is
entitled to take into account in its assessment of a witness. Sometimes
it is critical factor. See S v Hassim and Others 1972 (2) SA 448 (N)
at 457E where James J P refused to issue a commission in respect of a
witness who was refusing to attend court as he considered the
evaluation of the witness's demeanour and conduct was of
fundamental importance. Also see S v Nyamayevu 1978 (2) SA 684
(R) at 688E where Smith J refused to issue a commission where the
evidence to be obtained was of a material nature and the evaluation
thereof depended on the manner in which a witness would testify and
on his demeanour.
b) However it is certainly not the case that a court is obliged to accept the
evidence of a witness whenever it as unable to make an adverse
demeanour finding in respect of such witness. Such an approach
would lead to the absurd result that criminals, skilled in the art of
mendacity, would be entitled to acquittal despite the most
7
comprehensively damming evidence simply on account of their ability
to calmly and assuredly brazen out their denials without being ruffled
in any way. See S v MARTINEZ at e) below.
So it is the case that there are instances where demeanour may actually be
disregarded. In S v BASSON 2000 (4) SA 479 (T) at 482 HARTZENBERG
J stated
“In S v Hoare and Others 1982 (3) SA 306 (N) at 309 James AJP issued a
commission where the ultimate triers of fact would not physically see or
hear the witness. It was justified on the basis that the triers of fact were not
a jury but experienced legal people.
Franklin J held in S v Mzinyathi 1982 (4) SA 118 (T) at 122D G that a magistrate misdirected himself where he refused to issue a commission on the ground that he would not be able to see and hear the witness. This application was on behalf of the accused”
d) The approach of S Du Toit AJ in S v MINNIES AND ANOTHER
1991 (3) SA 364 (NM) at 376 is an example of a situation where good
demeanour did not preclude the court from rejecting part of the
evidence of police witnesses as evidenced by the following quote by
the learned judge
“On the whole, I cannot criticise the demeanour of the policemen in
Court. Their stories however were remarkably similar. But what they
could not explain satisfactorily, in my view, was:
(1) why, if they could interrogate Brand at the police station,
they could not interrogate Minnies there; and
(2) why it was necessary to take Minnies (and Mbali, for that matter) to
8
a lonely unlit shed to conduct an interrogation.I cannot accept that a policeman of the seniority …”
e) The whole issue of the utility of demeanour being a reliable indicator
of truthfulness is eloquently put in a nutshell by Levy J in S v
MARTINEZ 1991 (4) SA 741 (NM) at 758.
“This Court hesitates and is loath to condemn a witness because of his or her
demeanour in the witnessbox.
Some people follow occupations which frequently expose them to the public eye and they have learnt to speak with conviction even when they are lying. Others are able to disguise their feelings and emotions and may be so crafty that they can simulate an honest demeanour. On the other hand some persons who are entirely truthful are shy, withdrawn and nervous by nature and unable to express themselves. They hesitate and some times even lean over backwards to be fair. When the witness is a foreigner from a different cultural background the difficulty is compounded. ……. Where witnesses speak through interpreters one has even greater difficulties. Voice intonations, nuances of language, which may convey different shades of meaning, are frequently lost.
Consequently references to demeanour, if they are to carry any weight at all, should only back up conclusions reached by an objective assessment of the facts”.
f) Pertinent is the dictum of DAVIS AJA in REX v DHLUMAYO AND
ANOTHER 1948 (2) SA 677 (A) at 697 –
“It is often urged by counsel that, when the court below has made no comments
on the demeanour of the witnesses, then the appellate court is in just as good a
position to decide the case as was that lower court. But this can hardly ever be so
see per LORD SHAW in Clarke's case (supra). The mere fact that the Judge did
not comment on the demeanour of the witnesses is not to say that he was not
perhaps even unconsciously greatly influenced by the whole intangible
atmosphere of the case that he himself had tried. As was said by LORD
MACMILLAN in Watt v Thomas (supra, at p. 590):
'The appellate court had before it only the printed record of the evidence. Were that the whole evidence, it might be said that the appellate Judges were entitled and qualified to reach their own conclusion upon the case, but it is only part of the evidence. What is lacking is evidence of the demeanour of the witnesses, their candour or their partisanship, and all the incidental elements so
9
difficult to describe which make up the atmosphere of an actual trial. This assistance the trial Judge possesses in reaching his conclusions, but it is not available to the appellate court.'”
g) It therefore must be stressed that it is not strictly correct to say that the
court a quo made no adverse finding on the demeanour of each of the
appellants. Such adverse finding necessarily reposes in the court’s
rejection of their protestations of innocence, i.e., each failed to
impress as being truthful and a reading of the judgement induces a
conclusion that each made a poor impression on the court. The
specific driver of such poor impression was that each appellant was
decidedly economical as regards providing meaningful detail of his
whereabouts “….on any of the relevant days...” i.e., times when the
incidents from which the more serious charges arose especially as the
last of the incidents had occurred barely two (2) months before their
arrest. Such instance of selective memory is an objective factor as
envisaged by Levy J in S v MARTINEZ, supra which supports the
adverse finding of an impression of untruthfulness arrived at by the
trial court.
h) The judgement makes it clear however that the court was convinced in
its final conclusions, including the finding that it was safe to reject the
evidence of the appellants, by the totality of the evidence of which
the evidence of the accomplice Nyalela was critical.
i) That such rejection, in terms of impression gleaned, is the preserve of
the trial court is trite. REX v DHLUMAYO AND ANOTHER, supra.
In essence the court a quo made an adverse credibility finding in
10
respect of each of the appellants and this court is constrained not to
interfere unless such finding can be faulted on the record. See S v J
1998 (2) SA 984 (SCA) at 1006 –
“In the absence of an irregularity or misdirection, a Court of appeal is bound by
the credibility findings of the trial court, unless it is convinced that such findings
are clearly incorrect.”
S v THEBUS AND ANOTHER 2003 (6) SA 505 (CC) [75] at 539 –
“[75] The credibility findings of the trial Court pose an
insurmountable obstacle to the first appellant's case.”
j) In the circumstances the fact that the court, comprising a judge
and an experienced assessor “influenced by the whole
intangible atmosphere of the case”, did not articulate or
particularise demeanour findings as regards the appellants is of
no great significance and does not constitute misdirection.
Basis of appeal[5] It follows, and this was common cause during argument on appeal,
that the convictions must be upheld if the Court a quo cannot be faulted in its
acceptance of the evidence of the accomplice Nyalela. He was the primary
source of incrimination. Accused 2, Grootboom, (not an appellant) was a
secondary source. Unsurprisingly an attack on acceptance of Nyalela’s
evidence constituted the central theme of both the grounds of appeal and
argument proffered in support thereof.
Nyalela as a witness
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[6] Nyalela, a selfconfessed hitman, by his own admission, was fully
implicated in the activities of Melta Non Racial which in relation to MELTA
included a purposeful campaign involving murder using firearms and
destruction of property.
a) He was warned in terms of section 204 of the CPA. He is being
accommodated in a witness protection program. His evidenceinchief
lasted two (2) days. He was then crossexamined for five (5) days by
two counsel.
b) The court’s finding that –
“From the commencement of his evidence it was manifest that the
witness was not only well acquainted with all the accused, but that he
also had inside knowledge and was well versed in the affairs of Melta
Non Racial ….Nyalela has testified on all the incidents. There is a host
of evidence that corroborates the accomplice’s evidence that the actual
offences were committed”
is completely supported by manner, nature and content of the evidence
of this witness as a reading of the record confirms. So the correctness
of the finding was common cause on appeal.
c) So too was the court’s observation which immediately followed –
“The danger lies in the possibility that he may be falsely implicating the
accused in those offences.”
Heads of argument
[7] In the result appellants’ heads of argument state –
“14. For this simple reason this entire Appeal can be decided on a
12
very simple and limited argument”
15.1 He (the trial judge) erred strongly… in relying in any way on the
confession of Accused No. 2 to either corroborate the evidence of
the Section 204 witness, Nyalela, or in order to use portions
thereof …against the other accused;
15.2 He approached the evidence of Nyalela in a legally incorrect way
by repeatedly asking the question “why would he lie?”……;
15.3 He erred considerably … in rejecting the Appellants’ version
simply because, in his words, it amounted to a bare denial …
(thereby) place an onus on the accused and therefore committed a
gross misdirection;
15.4 While rejecting the Appellants’ evidence on the basis that it was
improbable, the learned Judge did not set out … why he said the
evidence was improbable…”
It need only be added that, apart from the further complaint regarding a
failure to make demeanour findings dealt with in par [4] above, argument
on appeal was confined to the above.
Court’s approach to evidence of accomplice
[8] It is as well to set out what is stated in the judgement –
“The danger lies in the possibility that he may be falsely implicating the
accused in those offences. As the Court is acutely aware of this danger, it
has spent much time considering and analysing Nyalela’s evidence on its
own and also in conjunction with the other evidence. The Court assessed his
13
evidence firstly on its own, i.e., without the corroborating factors in the
confession of accused 2 (Exhibit “FF”), and thereafter in conjunction with
the corroboration afforded by Exhibit “FF”.”
a) Cautionary Rule
It must therefore be accepted that the court was fully alive to the ever
present problem as regards all accomplices, i.e., that for reasons as
varied as human nature can be, an accomplice may falsely implicate
another. The judgement goes on to state –
“Although a court may, in terms of section 208 of the Criminal Procedure (sic) 51
of 1977, convict an accused on the evidence of a single witness, our courts have
for a long time insisted on compliance with the cautionary rule. The reasons for
the caution were set out by Holmes JA in S v HLAPEZULA AND OTHERS
1965 (4) SA 439 (A) at 440D as follows:
“First, he is a selfconfessed criminal. Second, various considerations may
lead him falsely to implicate the accused, for example, a desire to shield a culprit
or, particularly where he has not been sentenced, the hope of clemency. Third, by
reason of his inside knowledge, he has a deceptive facility for convincing
description his only fiction being the substitution of the accused for the culprit”.
In the light of the above it is difficult to understand why in argument
on appeal it was submitted that the court a quo was not alive to the
provisions of section 208 of the CPA as regards a single witness.
b) Corroboration
The judgement goes on to state –
“Today, although it is necessary that a court must still warn itself of the
aforesaid dangers inherent in an accomplice’s evidence, it is no longer
14
necessary to find corroborating evidence for his evidence if the court is
satisfied that he is a credible witness – S v Niewoudt (1990) 4 All SA 242
(SE); S v Zitha 1965 (1) SA 166 (E).
There is a great deal of evidence which corroborates the factual aspects of
Nyalela’s evidence…There is however…no corroboration of Nyalela’s
implication of the various accused in these events, other than the fact that
the accused have been untruthful when testifying…In this case, ...we are,
after warning ourselves of the dangers inherent in an accomplice’s
evidence, satisfied that…Nyalela’s evidence, in the absence of
corroboration, is the truth and that it can be accepted. The Court has
therefore considered the case firstly on the evidence of Nyalela, without any
corroboration of his evidence other than the untruthfulness of the accused”.
c) In S v ZITHA AND OTHERS 1965 (1) SA 166 (E) MUNNIK J
stated at 170
“The cautious Court or jury will often properly acquit in the absence of other
evidence connecting the accused with the crime, but no rule of law or practice
requires it to do so. What is required is that the trier of fact should warn himself,
or if the trier be a jury, that it should be warned of the special danger of convicting
on the evidence of an accomplice; for an accomplice is not merely a witness with
a possible motive to tell lies about an innocent accused but is such a witness
peculiarly equipped, by reason of his inside knowledge of the crime, to convince
the unwary that his lies are the truth. This special danger is not met by
corroboration of the accomplice in material respects not implicating the accused,
or by proof aliunde that the crime charged was committed by someone; so
that satisfaction of the requirements of sec.285 does not sufficiently protect
the accused against the risk of false incrimination by an accomplice. The
risk that he may be convicted wrongly although sec. 285 has been satisfied
will be reduced, and in the most satisfactory way, if there is corroboration
implicating the accused. But it will also be reduced if the accused shows
15
himself to be a lying witness or if he does not give evidence to contradict or
explain that of the accomplice. And it will also be reduced, even in the
absence of these features, if the trier of fact understands the peculiar danger
inherent in accomplice evidence and appreciates that acceptance of the
accomplice and rejection of the accused is, in such circumstances, only
permissible where the merits of the former as a witness and the demerits of
the latter are . . . beyond question.”
See also S v AVON BOTTLE STORE (PTY) LTD AND OTHERS
1963 (2) SA 389 (A) which in the headnote at 390 reads
“But this socalled 'cautionary rule' requires no more than an appreciation by
the trier of fact of the risk of false incrimination of an accused by an accomplice, a
risk which will be reduced by the presence of certain features, such as
corroboration of the accomplice implicating the accused. Moreover the absence of
such features will not by itself invalidate a conviction on accomplice evidence if
the trier of fact appreciated the peculiar danger inherent in accomplice evidence,
and it is clear that he accepted the evidence of the accomplice and rejected that of
the accused because the merits of the former as a witness and the demerits of the
latter were beyond question.”
The approach particularized in S v ZITHA AND OTHERS and S v
AVON BOTTLE STORE, supra, as approved for instance in S v
MHLABATHI AND ANOTHER 1968 (2) SA 48 (A) can be regarded
as settled law.
d) It is concluded therefore that the court a quo was correct in
believing that it could convict on the incriminatory evidence of the
accomplice Nyalela even in the absence of other evidence
corroborating his incrimination of the appellants.
16
Basis of conviction
[9] The court a quo made it absolutely clear that, guided by the law as set
out in [8] above, it convicted the appellants on the evidence of the
accomplice Nyalela, even though there was nothing to corroborate the
accomplice’s incrimination of the appellants, because it found that it was
safe to do so.
a) The court subjected the evidence of Nyalela to an exhaustive
assessment of which twelve (12) pages comprise a meticulous
catalogue of the merits of Nyalela as a witness in the context of
applying the cautionary rule. The assessment is so thorough that
attempting to paraphrase it would be to do the judgement of the court
a quo a disservice. Pertinent is that the court is able to demonstrate
that Nyalela, far from betraying a need to sink, incriminate or pillory
the appellants and their coaccused at all cost, was at all times fair and
careful about their involvement to the extent of even exculpating the
accused on some of the counts and concomitantly not playing down
his own involvement. It is also the case that the court made specific
positive findings as to this witness’s demeanour who had been
subjected to exhaustive crossexamination over a five (5) day period
and had nonetheless not deviated from his version.
It is pertinent to point out that counsel for the appellants levelled no
criticism at the trial court’s assessment of Nyalela and expressly
accepted that Nyalela was a good witness adding at one stage that “…
he was too good to be true”.
17
It need only be added that a reading of the record confirms the trial
court’s assessment of the witness.
b) It is also clear that the court simultaneously found that it was safe to
reject the evidence of the appellants. In doing so the court
undoubtedly “….accepted the evidence of the accomplice and rejected that
of the accused because the merits of the former as a witness and the
demerits of the latter were beyond question” per S v ZITHA AND
OTHERS; and S v AVON BOTTLE STORE; S v MHLABATHI
AND ANOTHER 1968 (2) SA 48 (A), supra.
c) The court’s approach in rejecting the appellant’s evidence is set out in
[4] above. It need only be added that a reading of the record reveals
nothing to indicate that the court was obviously wrong. On the
contrary this is a classical instance of this court being handicapped by
not having the benefit of “…all the incidental elements so difficult to
describe which make up the atmosphere of an actual trial” per REX v
DHLUMAYO AND ANOTHER, supra, and is therefore not in a
position to fault the trial court in its credibility findings.
d) It is simply not correct to claim that the trial court did not furnish
reasons why it found the bare denials by the appellants to be
improbable. It explained that as active members of Melta Non Racial
they must undoubtedly have been aware of the traumatic events
comprising the saga of violence. The saga comprised four distinct
incidents named, in terms of geographical location, as The Chalumna
18
Incident, The Highway Taxi Rank Incident, The Rasi Incident and the
King William’s Town Incident. As regards each incident shots were
fired at persons and/or taxis involved with MELTA, sometimes with
fatal consequences. In the circumstances their disinclination to give
evidence of their whereabouts at the time of occurrence of such
notorious events was consistent with concealment of their
involvement. This was so particularly as regards First Appellant, an
executive member, whose evidence, directly contradicted by Nyalela,
that the executive of Melta Non Racial did not meet despite the
terrible events occurring was selfevidently mendacious. This was so
in the light of the observation that his evidence “…..painted a picture
which would have been fertile ground for Melta Non Racial attacking
Melta … (as) ... their drivers were shot and taxis burnt shortly before
the attacks on Melta, mentioned in this case, occurred.”
e) In addition it is to state the obvious to say that if an accused says very
little in his defence the court is necessarily constrained to say very
little in adjudication thereof. So the trial court was hardly in a
position, as compared with its treatment of the evidence of Nyalela, to
make long exhaustive analyses and assessment of the evidence of each
appellant. It was put in a position where it had to make up its mind on
the evidence as proffered by each appellant. It did just that and stated
its reasons clearly and simply within the context of the totality of
evidence it had to consider. In part it was influenced by the fact that
the appellants did “not give evidence to contradict or explain that of the
accomplice”. Per dictum in S v ZITHA AND OTHERS in [8] c) above.
19
The submissions therefore regarding an apparent breach of section 146
of the CPA, which section requires reasons for judgement to be given,
and the authorities cited are no more than of academic interest. The
fact of the matter is that the court a quo gave very full and detailed
reasons as to why it came to the decision it did.
f) Much is made of the fact that the court posed the question – “Why
would Nyalela lie?” It is certainly the position that if the trial court
believed that the witness had no reason to lie its judgement must be
regarded as fatally flawed. This court was referred to S v Lesito 1996
(2) (O) SACR 682 at 687 I – 688 a) and R v Mtembu 1956 (4) SA
334 (T) at 336.
However it is clear that S v Lesito, R v Mtembu, supra, S v Ipeleng
1993 (2) SACR (T) and S v Makobe 1991 (2) SACR (W) 456 are all
authority for the proposition that a misdirection occurs, not on account
of such question having been posed, (and appellants’ counsel made it
clear that the complaint was not that the question was posed) but on
account of the trial court having, as a consequence, visited an onus on
the accused to show or explain why the state witness would falsely
incriminate him or her.
This was explained by Mahomed J in S v Ipeleng, supra, at 189 “It is dangerous to convict an accused person on the basis that he cannot
advance any reasons why the State witnesses would falsely implicate him. The
accused has no onus to provide any such explanation. The true reason why a State
witness seeks to give the testimony he does is often unknown to the accused and
sometimes unknowable. Many factors influence prosecution witnesses in insidious
ways. They often seek to curry favour with their supervisors; they sometimes need
20
to placate and impress police officers, and on other occasions they nurse secret
ambitions and grudges unknown to the accused. It is for these reasons that the
Courts have repeatedly warned against the danger of the approach which asks:
'Why should the State witnesses have falsely implicated the accused?'
The case of S v Makobe 1991 (2) SACR 456 (W) is instructive on this point.”
g) It is however absolutely clear that the trial court was completely alive
to the danger of false incrimination of the appellants by the
accomplice. Hence its statement “The danger lies in the possibility that
he may be falsely implicating the accused in those offences. As the Court is
acutely aware of this danger, it has spent much time considering and
analysing Nyalela’s evidence on its own and also in conjunction with the
other evidence. “
Misdirection
[10] Taken on its own, the categorization in the judgement – “They have
either no reason or no acceptable reason why Nyalela implicated them” as
one of the “defects” in the evidence of the appellants’ evidence must be
classified as misdirection. Had the court simply stated this as an observation
of the factual position there would be little problem. Its categorisation of this
being a defect is what renders it a misdirection.
However having regard to the whole of the judgement it is clear that the
misdirection is of little consequence. This is so as this court can be satisfied
that, in terms of approach, nowhere did the trial court visit an onus on the
appellants to prove why the accomplice was implicating them. To my mind
this misdirection presents as but one flaw in otherwise unimpeachable
judicial reasoning and therefore had no effect on the outcome. It certainly is
21
not the position that the misdirection “pervaded all its reasoning and was
instrumental to the conclusion to which it came” as envisaged in NATIONAL
DIRECTOR OF PUBLIC PROSECUTIONS v RAUTENBACH AND
OTHERS 2005 (4) SA 603 (SCA).
In particular see S v THEBUS AND ANOTHER 2003 (6) SA 505 (CC) at
539 –
“[74] In my view, the misdirection of the SCA would be relevant only if it would
be an issue which materially alters the outcome of the trial (See S v Harris 1965
(2) SA 340 (A) at 364A. A lucid formulation of the test is offered by Holmes JA
in S v Bernadus 1965 (3) SA 287 (A)) or compromises its substantive fairness, to
which the appellant is entitled under s 35(3) of the Constitution. Put otherwise, the
applicable test is whether, 'on the evidence, unaffected by the defect or
irregularity, there is proof of guilt beyond reasonable doubt'. (S v Bernadus at
305B F and Kriegler and Kruger n 16 at 831). Compare the earlier commonlaw
test of whether by reason of the irregularity or misdirection 'a failure of justice
has, in fact, resulted’. If this Court were to find that such proof has been
established, it must follow that the conviction must stand.”
Important is the converse fact that the judgement includes a meticulous
examination and testing of Nyalela’s evidence on the issue of possible false
incrimination including
“The important question is whether…his evidence was fabricated…For the
following reasons the witness’s evidence gives the lie to the latter
suggestion… (reasons then set out)...if he or the police were hellbent on
convicting the accused, his evidence would surely have implicated either
all, or more of the accused on all, or more counts. He did not do so and
often went out of his way to state that certain of the accused were not
present at certain events …”and goes on in further amplification of
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features of Nyalela’s evidence that are inconsistent with false
incrimination.
Summary
[11] In summary the court a quo, comprising a judge and a retired
magistrate, cannot be faulted in its approach. In particular it is clear that the
court was fully alive to the implications of the cautionary rule regarding the
evidence of an accomplice. The court subjected the evidence of the
accomplice to the most conscientious, critical and rigorous examination in
every respect in order to arrive at its assessment on the acceptability of this
evidence for the purpose of convicting the appellants. It concluded, for good
reasons, that it was safe to accept the evidence of the accomplice. In
rejecting the evidence of the appellants it misdirected itself in categorizing
their inability to provide a reason as to why the accomplice was
incriminating them as a defect. The misdirection however is not fatal to the
overall integrity of the judgement as it is clear that the court did not seek to
place an onus on the appellants to show why the accomplice would lie or
falsely incriminate them. In accepting the evidence of the accomplice and
rejecting that of the appellants the court was making a credibility finding
which it was best placed to make. The fact that it did not include specific
findings on the demeanour of the appellant is of little consequence as it is
clear from the judgement that they made a poor impression on the court.
In the circumstances the judgement of the court a quo must be upheld and
the appeal against conviction by each appellant dismissed in terms of the
foregoing.
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Reliance on statement of coaccused
[12] The court, in a distinct and separate exercise in its judgement, also relied on a statement of a coaccused (not an appellant) to find corroboration of the accomplice in his incrimination of the appellants. Such corroboration was absent in the reasons for judgement as set out above. Because the court was of the view that such an approach may be impermissible it made it absolutely clear that its conviction of the appellants on this basis was in terms of a separate and distinct decision process albeit included in the same judgement.
Having upheld the judgement on the first basis of conviction formulated by
the court a quo, it may be technically unnecessary for this court to deal with
this aspect. Having carefully considered this I am of the view that an issue
which was so central to the trial of the appellants and their challenge on
appeal must be retained in the adjudication process if the principle of justice
being done and being seen to be done is to remain sacred. Such approach
also commends itself as being prudent as a higher court may find that this
court is in error in having upheld the conviction on the first basis formulated.
It is common cause that the only issue for determination in this phase of the
exercise is the legal one of whether or not it was permissible for the court to
find such corroboration of the accomplice in the statement of the coaccused.
The issue of the credibility and reliability of the accomplice has already been
covered.
a) It is undoubtedly the position that, in the ordinary course, a confession by
a coaccused cannot be used as evidence against an accused and this is
common cause between counsel. See S v RALUKUKWE 2006 (2)
SACR 394 (SCA); S v Makeba & another 2003 (2) SACR 128 (SCA)
at 133.
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b) A problem is that the statement made by the coaccused has been referred
to both as a “statement” and as a “confession” by the court during the
proceedings and in its judgement. Describing it as a “confession” has, in
part, provided the basis for this particular ground of appeal and strenuous
attack in argument. A perusal of the statement reveals it to be a story of
the involvement of the maker of the statement (Grootboom who appeared
as Accused 2) and the other accused, including the appellants, in the turf
war against MELTA. It is in narrative format and is certainly
incriminatory. However it is not a confession for lack of clear admission
of the elements of the offences charged. For instance nowhere does he
admit murder or attempting to kill anybody preferring to describe
involvement as “they started firing” (meaning his accomplices) and
“...we also tried to burn out those vehicles...” and “Quenta went to him
and shot him…” In short Grootboom implicates himself in admitting
being present at the scenes of crime but barely takes any specific personal
responsibility as regards any of the terrible criminal deviance played out.
c) It is clear therefore that statement cannot be regarded as a confession as
envisaged by section 219 of the CPA which provides –
“No confession made by a person shall be admissible as evidence against
another person”
In S v RALUKUKWE, supra, Cloete JA goes into the question as to
what is to be regarded as a confession for the purposes of applying the
section and concludes at 399 e – f :
“It was therefore the view of De Villiers ACJ that 'confession' should be given the same meaning wherever it appeared in the Act; and that for a statement to qualify as a
25
confession, and therefore to be subject to the provisions of s 273 which governed its admissibility, every element of the offence charged had to be admitted. This approach has been applied time and again in this Court and in Provincial Divisions; and Becker's case has been cited by the Constitutional Court (S v Zuma and Others 1995 (1) SACR 568 (CC) (1995 (2) SA 642; 1995 (4) BCLR 401) para [27]) as authority for the proposition that:
'A confession by definition is an admission of all the elements of the
offence charged, a full acknowledgement of guilt.'”
In terms of this approach the statement does not constitute a
confession, even though largely selfincriminatory of the accused
Grootboom. As stated by Zeffert, Paizes, Skeen in The South African
Law of Evidence at p. 472 – “The logical conclusion of these cases is that
in crimes which require mens rea an account by the accused of his actions,
however detailed and damning, will hardly ever amount to a confession…”
d) It should be noted that the admissibility of the statement was challenged
by the coaccused Grootboom and only admitted after a “trial within a
trial”. Later in the main trial this accused further disavowed the statement
and persisted in his claim that the police had forced him to make it.
.
e) The court was of the view that as the appellants had, via their counsel,
crossexamined the accomplice on the contents of the statement this
rendered its contents admissible for the purposes of corroborating the
accomplice generally and in his incrimination of the appellants. It is
contended on appeal that this approach was plainly wrong in the light of
the dicta in S v Makeba & another; S v RALUKUKWE , supra, at 400 –
“[14] The statement made by accused 1 must accordingly be left entirely out of
account in determining the guilt of the appellant. It cannot be used even
indirectly as part of a chain of inferences drawn against the appellant or as
26
corroboration of other evidence: R v Kohlinfila Qwabe 1939 AD 255 at 260
3.; R v Baartman and Others 1960 (3) SA 535 (A) at 542B E.; S v Serobe
and Another 1968 (4) SA 420 (A) at 425A H.; S v Makeba and Another,
supra”. (my underlining)
It is important to note that here the court was dealing with a confession.
f) The simple answer to the above precedents is that they are distinguishable
on the facts of this case. The main distinguishing factor is that the
statement is not a confession as envisaged by section 219 of the CPA. See
S v RALUKUKWE, supra as set out in c) above. In addition the court
was not faced with the situation pertaining in this case.
In particular, applying these precedents in the manner suggested leads
to an incongruity. Having crossexamined the accomplice on the
contents of the statement they were entitled to claim (and this they
did) that he should be disbelieved on account of contradictions
between his evidence and the contents of the statement and thereby
secure their acquittal. Put simply they were entitled to claim that the
contents of the confession revealed the witness to be a liar. However,
and this is the incongruity, having failed in an attempt to use the
confession to destroy the accomplice’s credibility they now claim that
the contents of the confession should be ignored and not used to
confirm his credibility. This appears plainly absurd. However the
absurdity begs rather than resolves the problem. Hence the oft quoted
statement that the “law is an ass”.
g) As it is trite that such a statement is hearsay (S v RALUKUKWE, supra
for instance) it seems to me that the issue is resolved by a proper
27
application of section 3(1)(c) of the Law of Evidence Amendment Act 45
of 1988 which provides –
“3(1) Subject to the provisions of any other law, hearsay evidence shall not be
admitted as evidence at criminal or civil proceedings, unless
. . .
(c) the court, having regard to
(i) the nature of the proceedings;
(ii) the nature of the evidence; (iii) the purpose for which the evidence is tendered; (iv) the probative value of the evidence; (v) the reason why the evidence is not given by the
person upon whose credibility the probative value
of such evidence depends;
(vi) any prejudice to a party which the admission of such evidence might entail;
(vii) any other factor which should in the opinion of the court be taken into account, is of the opinion that such evidence should be admitted in the interests of justice.”
As it is a statement which is not caught by the prohibition in section
219 of the CPA it was “hearsay evidence” only admissible in terms of
section 3(1)(c) of the Law of Evidence Amendment. See S v
RALUKUKWE, supra, at 400 a –b citing S v Ndhlovu and Others
2002 (2) SACR 325 (SCA) (2002 (6) SA 305; [2002] 3 All SA 760);
S v Molimi and Another 2006 (2) SACR 8 (SCA).
h) In my view although the court a quo was not specifically
mindful of the provisions of the above Act and section
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3(1) (c), it in effect applied its provisions in permitting
crossexamination of the accomplice on what was
hearsay. In circumstances in which the appellants
initiated consideration of the statement by cross
examining on its contents, it can hardly be argued that
admitting this hearsay was not in the interests of justice.
The appellants must be taken to have been of the view
that the interests of justice were fully served by the
testing the of evidence of the accomplice against the
contents of the statement.
Ordinarily admission of hearsay in terms of this section should be
formalised and the accused put on guard in specific terms. However
the fact that this did not happen does not vitiate the procedure as no
prejudice occurred. Neither can it be said to have been unfair. See S v
Molimi and Another, S v RALUKUKWE supra, as regards the issues
formalised procedure, prejudice and unfairness. So too as regards S v
Ndhlovu and Others, supra. In particular the appellants had the
opportunity of dealing with the contents of the statement when they
presented their defences.
i) In my view the court a quo was correct in also relying on
the statement of the coaccused as corroboration of the
accomplice both generally and in his incrimination of the
appellants. Obviously the case against the appellants is
stronger where the accomplice is corroborated in his
incrimination of them.
29
Summary
[13] In summary the appellants themselves chose to challenge, test and
discredit the accomplice by crossexamining him on a statement made by
their coaccused. They then proceeded to submit that the accomplice was to
be disbelieved on account of discrepancies between his evidence and the
contents of the statement. Having failed in such submission it is not open for
them to claim that the statement cannot be used to confirm the credibility of
the witness. To my mind the statement is admissible in terms of section 3(1)
(c) of the Law of Evidence Amendment Act 45 of 1988 as hearsay admitted
in the interests of justice. It is immaterial that the court a quo was not
specifically mindful of section 3(1)(c) of the Law of Evidence Amendment
Act as the procedure it adopted was at the behest of the appellants and no
prejudice or unfairness accrued.
In the circumstances the judgement of the court a quo must also be upheld
and the appeal against conviction by each appellant dismissed in terms of the
foregoing
Appeal against sentence[14] This ground of appeal reads – “The sentence imposed on the
Appellants, bearing in mind the cumulative effect thereof, was shockingly
inappropriate and causes a sense of shock.”
FIRST APPELLANT MBUYISELI CHRISTOPHER ROBIYANA
a) The appellant, at the time, was a 43 year old first offender, married with 4
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children. He was sentenced to imprisonment as follows –
Count 2: Attempted murder of 2 brothers 10 years
Count 3: Illegal possession of machine gun 15 years as the
minimum sentence in terms of section 51(2) of the CPA in
the absence of substantial and compelling circumstances.
Count 8: Attempted murder 10 years
Count 9: MIP Destruction of minibus 5 yearsCount 12: Murder Life as the
minimum sentence in terms of section 51(2) of the CPA in
the absence of substantial and compelling circumstances.
Count 15: Attempted murder 10 years
Count 16: Attempted murder 10 yearsCount 17: MIP Destruction of minibus 5 yearsCount 18: MIP Destruction of minibus 5 yearsCount 19: MIP Destruction of minibus 5 years
Count 20: Murder Life as the
minimum sentence in terms of section 51(2) of the CPA in
the absence of substantial and compelling circumstances.
Sentences on counts 17, 18 and 19 to run concurrently.
Note that there is no attack on the finding that there were no substantial and
compelling circumstances in respect of the sentences on Counts 3, 12 and 20.
To my mind this puts the whole issue of sentence into perspective. It is the
clearest indicator of the moral reprehensibility of the conduct of the
appellant and the absence of mitigatory features.
The fact of the matter is that the appellant was a key role player in the grim
business of employing hitmen in a taxi turf war (to quote the judgement) to
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“… shoot and kill indiscriminately and the innocent victims are the commuters
whom they had never seen before. The administration of justice must do
everything in its power to eradicate this evil and protect commuters”.
To the extent that the cumulative effect of the sentences might appear
“shocking” this result is the inevitable consequence of the appellant’s own
criminal activities purposefully executed with contemptuous disregard for
the law and the rights of others. Where an accused commits a number of
criminal offences it is an inevitable consequence that the aggregate of the
sentences that must accrue on each count will result in a total sentence which
appears “shocking’. This however does not mean that it is to be classified as
shocking. A sentence is only to be classified as shocking if it is
disproportionate to the crime in question. Whereas a court is required to be
mindful of the cumulative effect of sentences it is precluded from reducing
the sentence on each or any one count to the extent of trivialising the gravity
of the count in question.
It is also pertinent to point out that the overall effect of the sentences is ameliorated on account of the fact that all sentences, by operation of law, run concurrently with the life sentences imposed.
SECOND APPELLANT MLONDOLOZI MAMA
b) The appellant, at the time, was a 31 year old first offender, single with 2
children. He was sentenced to imprisonment as follows –
Count 10: Illegal possession of 2 machine guns 7 years having
found substantial and compelling circumstances justifying departing
from the minimum sentence of 15 years in terms of section 51(2) of
the CPA in that the appellant did not fire the weapons.
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Count 11: Illegal possession of ammunition – 2 years to run
concurrently with the sentence on Count 10.
The sentence which, in effect, is less than half that which might have been
imposed represents an unexcipiable exercise of judicial discretion. At the
time of the hearing of this appeal the appellant had already served his
sentence. Bearing in mind the overall circumstances and the purposes for
which he had possession it cannot be said that the sentences were excessive.
THIRD APPELLANT TEMBEKILE SOLWANDLE
c) The appellant, at the time, was a 31 year old first offender, single with 2
children. He was sentenced to imprisonment as follows –
Count 20: murder 15 years having found substantial and
compelling circumstances justifying departing from the minimum
sentence of life in terms of section 51(2) of the CPA in that the
appellant did not fire the weapons.
Count 22: Illegal possession of firearm 1 year
Count 23 Illegal possession of ammunition 1 yearto run concurrently with the sentence on Count 22.
The sentence represents an unexcipiable exercise of judicial discretion. Bearing in mind the overall circumstances of the appellant’s involvement it cannot be said that the sentences were excessive.
Conclusion as regards appeal.[15] In the circumstances it is my judgement that the appeal against
convictions and sentence in respect of each appellant be dismissed and
therefore propose accordingly.
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_______________________
GREENLAND A.J.
I agree. It is so ordered.
_______________________
DHLODHLO JUDGE
ACTING DEPUTY JUDGE PRESIDENT
I agree
_______________________
DARWOOD A.J.
FOR THE APPELLANTS : ADV T. N. PRICE
FOR THE RESPONDENT : ADV J.J. CILLIER
HEARD ON : 14 MARCH 2008
DELIVERED ON : 27 June 2008
34