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Reportable
CASE NO: 338/2001
In the matter between :
ABDURAGHMAN THEBUS First Appellant
MOEGAMAT ADAMS Second Appellant
and
THE STATE Respondent
___________________________________________________________________________
Before: OLIVIER, NAVSA JJA and LEWIS AJA
Heard: 9 MAY 2002
Delivered: 30 AUGUST 2002
Summary: Reliability of evidence of identification: alibi defence – approach to: sentence – Criminal Law Amendment Act 105 of 1997 – increase on appeal.
___________________________________________________________________________
___________________________________________________________________________
LEWIS AJA:
[1] I have read the judgment of Navsa JA and regret that I do not agree with his finding that the conviction of the first appellant should be set aside.
[2] Navsa JA has concluded that because the evidence of Kiel was found to be unreliable in respect of the identification of the second and third accused, it is not to be relied upon in respect of the first appellant. The learned judge considers, however, that Kiel’s evidence identifying the fourth appellant is reliable because it is corroborated by the evidence of David (Petersen), and by the car registration number taken down by witnesses to the shooting, and which led to the tracing of the fourth appellant.
[3] The principal difficulty with Kiel’s evidence implicating the first appellant is that it is uncorroborated by any other evidence: he was the only member of the community who identified the first appellant, and the reliability of that identification must be weighed carefully with his alibi, and the testimony of the two witnesses who supported it. The real issue is to decide whether Kiel’s identification of the first appellant (which the court found to be reliable in the case of the other appellant, but which he did not accept in respect of the other two accused) proves his presence at the scene of the shooting in the face of the alibi evidence of Ms Van Rooy and Ms Jacobs. The further question that arises from this is whether an alibi which is considered to be fabricated can in fact corroborate in some way the identification of an accused by a single witness.
[4] Navsa JA has referred to the tests to be employed when determining the reliability of the evidence of a single witness as to the identity of an accused. I do not propose to repeat these. The Court a quo took into consideration the following factors. The first appellant was well-known to Kiel. They had grown up in the same area, and Kiel had seen him regularly over a number of years although they did not socialize together. He knew the nickname (Maantjie) of the first appellant. He had remonstrated with the first appellant, calling on him, by name, to stop the shooting because of the presence of children on the scene. When remonstrating he had been threatened with a firearm. He had seen a pickaxe in the hands of the first appellant. Moreover, the incident had occurred in daylight, where the perpetrators of the violence and the shootings were for the most part clearly visible. Kiel’s description of the events tallied to a considerable extent with that of the other witnesses to the scene, although there were some inconsistencies. These are easily attributed to the different times at which the various witnesses had seen the events, the different vantage points and their different powers of recollection.
[5] The reliability of the observations of Kiel must be considered having regard to the assessment of the trial Court of Kiel as an honest and impressive witness. It is true that the Court rejected his evidence implicating the two other accused: but it did so on the basis that he must have been mistaken in having placed them on the scene. The second accused was discharged after the close of the State’s case because, although he was placed on the scene by Kiel, a State witness, Cedric Calton, gave him a plausible alibi. This was the position also in the case of the third accused where a plausible explanation of his whereabouts, supported by testimony, placed in doubt his presence on the scene and his complicity. The discharge and the acquittal were the result, in my view, of doubt having been cast on Kiel’s evidence that placed those two accused on the scene, given that their versions were reasonably possibly true.
[6] As I have mentioned previously, Navsa JA has taken the view that if Kiel was found to have given unreliable evidence in respect of those two accused, then his evidence must be unreliable also in respect of the first appellant. This conclusion is based, in my respectful view, on two faulty premises.
[7] The first fallacy is that Kiel’s evidence was equally strong in respect of all the accused, and that there is thus no reason to differentiate between his evidence identifying each. That is not the case. The two accused who were respectively discharged and acquitted were seen at a greater distance than was the first appellant. This is on its own of no great significance since Kiel testified that the distance was no more than eight metres. But they were on the other side of the road, whereas the appellants were on the same side. In particular, as I have mentioned, Kiel knew the first appellant well by sight and by reputation, and spoke to him on the scene, calling him by his nickname and asking him to desist from shooting. He did not speak to the other two accused. They were not said by him to have played any particular role in the shooting and its aftermath. I consider that there is no illogicality in the reasoning of Mitchell AJ that Kiel’s evidence may have been less reliable in respect of those whom he had seen at a greater distance and with whom he had had no interaction.
[8] The second faulty premise is that Kiel could be right in respect of the fourth appellant because there was other evidence to corroborate his identification of him, but wrong where there was nothing other than a dubious alibi to support the identification of the first appellant. Kiel testified that he had never seen the fourth appellant previously. He recognized him subsequently only by reason of his build and other physical characteristics (in respect of which he and David Petersen were inconsistent). His capacity to identify the fourth appellant was clearly thus not greater or better than his capacity to identify the first appellant. It is highly unlikely that he would be correct in respect of the man whom he did not know but incorrect in respect of the man whom he did know and to whom he spoke during the incident. Moreover, there was nothing to suggest that Kiel had any motive falsely to implicate any of the accused.
[9] The reason that Mitchell AJ acquitted the second and third accused was, as I have suggested, because of the reasonable doubt as to their presence on the scene, raised by plausible alibis – and not because Kiel was necessarily wrong.
[10] Was the first appellant’s alibi of the same kind? Was it reasonably possibly true? I shall not traverse in detail the evidence of Ms van Rooy and Ms Jacobs. The version advanced by the first appellants and his two witnesses was that he had left Ocean View at about 13h00 and taken a taxi to the Fishhoek station. Ms Van Rooy, who also lived in Ocean View, was in the same taxi. They had both caught the 15h10 train to Wynberg. He and Van Rooy had parted ways there. He had gone to a mosque in Wynberg where he led the prayers. He had then proceeded to the home of Ms Jacobs, his second wife, in Parkwood Estate. The first appellant and Ms Jacobs had been together all the time until the following day when he had left to return to Ocean View, save that he had gone alone to a mosque in Parkwood Estate. It was only when the first appellant returned to Ocean View that he had heard about the events of the previous day.
[11] Van Rooy testified, two years after the event, that she had caught the 15h10 train to Wynberg with the appellant, and that he had gone to the mosque in Wynberg. Ms Jacobs remembered, also some two years later, that the first appellant had arrived at her house at precisely 16h55. She could remember the exact time, she said, because she had been waiting for the first appellant to return her bank card to her so that she could do some shopping; and that she had been angry when he arrived too late for her to do this.
[12] I agree with the finding of Mitchell AJ in the court a quo that the two witnesses’ versions of the first appellant’s movements on the day in question were so consistent with each other, and with the evidence of the first appellant himself, and their ability to remember minute detail, such as timing and train schedules, so remarkable, that the suspicion must arise that the entire story was concocted for them and carefully rehearsed. That suspicion is not enough, however, to say that the first appellant’s version is not reasonably possibly true.
[13] What is more telling, in my view, is that the version was raised only at the trial, some two years after the incident. It does not seem to me reasonably possible that the second wife of the first appellant, Ms Jacobs, and his acquaintance Ms Van Rooy, would not come forward immediately upon his arrest, or at least some short time later, and advise the police investigating the crimes, which had shaken the community as a whole, that he had been with them at the crucial times. It is equally not possible that the first appellant himself, having so cogent an alibi when arrested and charged, did not advise the police or the prosecution that this was the case. The only inference that can be drawn from his failure to advise the police, and from the other witnesses’ failure to do so, is that the alibi had no truth in it at all.
[14] In my view, therefore, the evidence of Kiel identifying the first appellant as a participant in the crimes of murder and attempted murder is reliable and compelling. That he may have been mistaken in identifying the second and third accused as participants in the shooting spree does not detract from his clear identification of the other two accused. Kiel’s evidence is supported, moreover, by the patent fabrication of an alibi by the first appellant. Accordingly there is no reasonable doubt, in my mind, that the first appellant was correctly convicted by the trial Court.
[15] I would thus also dismiss the appeal against the conviction of the first appellant.
[16] In so far as sentence is concerned, I agree with Navsa JA that the crimes committed by the appellants fall within the ambit of s 51 of the Criminal Law Amendment Act 105 of 1997, and in particular that the appellants were part of a group acting in furtherance of a common purpose. In the circumstances the prescribed minimum sentence is life imprisonment for each unless substantial and compelling circumstances, warranting the imposition of a lesser sentence, are shown to exist.
[17] I agree also with the views expressed by Navsa JA on the abhorrent nature of the crimes, and on the dangers of appearing to condone the conduct of the appellants in taking the law into their own hands. Vigilante action must be visited with severe consequences. But I consider that there are a number of factors which should be taken into account in determining whether the sentence of life imprisonment is disproportionate to the crime. In S v Malgas 2001 (1) SACR 469 (SCA) Marais JA, in discussing the meaning of the phrase ‘substantial and compelling circumstances’ said (at 481a—d):
‘The greater the sense of unease a court feels about the imposition of a prescribed sentence, the greater its anxiety will be that it may be perpetrating an injustice. Once the court reaches the point where unease has hardened into a conviction that an injustice will be done, that will only be because it is satisfied that the circumstances of the particular case render the prescribed sentence unjust, or, as some might prefer to put it, disproportionate to the crime, the criminal and the legitimate needs of society. If that is the result of a consideration of the circumstances the court is entitled to characterize them as substantial and compelling and such as to justify the imposition of a lesser sentence.’
The approach of this Court in Malgas was endorsed in S v Dodo 2001 (1) SACR 594 (CC).
[18] The imposition of life imprisonment on the two appellants leaves me with a sense of considerable unease, and a conviction that the sentences would be unjust. That does not mean that the two appellants should not be severely punished for their conduct. However, life imprisonment is the most severe sentence recognized by the law, and it seems to me that to impose it would be completely wrong in the circumstances of this case and in respect of the two appellants.
[19] It is useful, before dealing with the particular factors that I consider relevant, to set out the specific guidelines laid down in Malgas (in the Court’s summary at 481j—482e), and that I consider pertinent in this case.
‘D. The specified sentences are not to be departed from lightly and for flimsy reasons. Speculative hypotheses favourable to the offender, undue sympathy, aversion to imprisoning first offenders, personal doubts as to the efficacy of the policy underlying the legislation, and marginal differences in personal circumstances or degrees of participation between co-offenders are to be excluded.
E. The Legislature has however deliberately left it to the courts to decide whether the circumstances of any particular case call for a departure from the prescribed sentence. While the emphasis has shifted to the objective gravity of the type of crime and the need for effective sanctions against it, this does not mean that all other considerations are to be ignored.
F. All factors (other than those set out in D above) traditionally taken into account in sentencing (whether or not they diminish moral guilt) thus continue to play a role; none is excluded at the outset from consideration in the sentencing process.
. . .
I. If the sentencing court on consideration of the circumstances of the particular case is satisfied that they render the prescribed sentence unjust in that it would be disproportionate to the crime, the criminal and the needs of society, so that an injustice would be done by imposing that sentence, it is entitled to impose a lesser sentence.’
[20] The killing of Crystal Abrahams, and the injuring of Riaan van Rooyen and Lester September was not premeditated. They were caught in the middle of the shooting by the vigilante group. The appellants, although guilty by virtue of being part of the group and having a common purpose, were not themselves the men who fired the shots. The first appellant stood at the scene of the shooting and the second collected spent cartridges. They did not have the direct intention to kill or injure but were guilty by virtue of dolus eventualis. Both were first offenders, and both had previously been regarded as respectable members of their community (I would add, however, that people who choose to take the law into their own hands and to participate in groups that deliberately damage property and cause severe injury and even death in the process can hardly be described as respectable members of society).
[21] I do not consider that the frustration allegedly felt by the community of Ocean View at the inability of the police to deal with gangsterism and drug-dealing is a factor that should be regarded as mitigating. Nor do I accept the approach of the trial judge that the entire community shouldered responsibility for the tragic events that occurred when the vigilante group descended on Ocean View. Indeed, I agree with Navsa JA that the conduct of the group would have added to the fear felt generally by people living in Ocean View. And the argument that members of the group were provoked by Cronje is illogical given that the group had first attacked his property.
[22] However, the other circumstances must weigh heavily in determining the appropriate punishment for the appellants. Their participation in the actual shooting was not a direct cause of the death of the deceased or the injuries to the complainants. That they are legally responsible for the death and injuries that resulted is not in question. Nor is their moral responsibility doubted. They participated in violent action that they must have known could lead to injury and death. But they did not actually shoot and neither was seen using a firearm. Such a difference in the degree of participation is not marginal – it is, in my view, significant. I have no doubt that it would be unjust to impose a sentence of life imprisonment on either of the appellants given that their participation in the commission of the crimes charged was limited. That the appellants were first offenders, were employed and have families to support are factors that must also be taken into account.
[23] I consider therefore that there are substantial and compelling circumstances that justify a lesser sentence than life imprisonment. But the appellants’ conduct is such as to warrant a lengthy sentence of imprisonment. They were responsible for the death of a child and the injuries of others. They showed a contempt for the administration of justice, and of the police who are charged with dealing with the prevention of crime, in a reckless and unconscionable fashion. The sentence imposed by the trial court was in the circumstances grossly inadequate for the punishment of the appellants and as a deterrent to others who might take it upon themselves to deal with criminal conduct by perpetrating crimes themselves.
[24] In all the circumstances I consider that a sentence of imprisonment of 15 years for each appellant is appropriate.
[25] The appeals of both appellants against their convictions are dismissed, and the sentences of suspended imprisonment subject to conditions in respect of both appellants are replaced with the following:
‘The first and fourth accused are each sentenced to imprisonment of 15 years.’
CAROLE LEWIS
ACTING JUDGE OF APPEAL
OLIVIER JA CONCURS
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