|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
South Africa: Supreme Court of Appeal |
[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]
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 1st Applicant
SIPIWE JAMES BHOLO 2nd
Applicant
SIPHO SAMUEL GAVIN 3rd 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
SAFLII:
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/za/cases/ZASCA/1999/52.html