S v Kgengwe (666/1996) [1998] ZASCA 95 (3 November 1998)

2 Melunsky AJA

The appellant and a certain Captain Sono stood trial before Comrie J and assessors in the Bophuthatswana Provincial Division of the Supreme Court, as it was then called, on three counts - murder, robbery and attempted murder. Despite their pleas of not guilty they were convicted on all counts. The appellant was sentenced to life imprisonment on the murder charge and to ten and twelve years imprisonment respectively on the robbery and attempted murder counts. He appeals to this Court against the convictions and sentences with leave of this Court.

Before dealing with the merits of the appeal it is necessary to say something about the deplorable state of the record. Apart from numerous spelling mistakes and other errors, various pages of the record were invariably duplicated where the transcriber reached the end of a tape. What is more, the documentary exhibits, including a plan and photographs, were entirely

3 omitted. All of this was disconcerting if not confusing and made the task of

reading the record far more difficult than it should have been.

There is a duty on an appellant's attorney to ensure that the record is properly prepared for the appeal. Occasional errors in transcription may be overlooked but in this case the persistent duplication of pages coupled with the omission of the exhibits were of such a nature that we gave serious consideration to striking the appeal from the roll. It is only because we have a firm and clear view of what the outcome of the appeal should be and that it is in the interests of justice to dispose of this matter that we are prepared to concern ourselves with the merits.

The events that gave rise to the conviction of the appellant and his co-accused took place at the Mafikeng Jewellers in Main Street Mafikeng, a business owned by Mr and Mrs Maree. During the afternoon of 25 June 1993 a man entered the shop and went to the workshop area at the back of the

4 building where Mr and Mrs Maree, their granddaughter and a Mr Snyman

were present. He seized Mr Maree by the collar of his shirt and shot him in the

face with a pistol which he held in his other hand. Mr Maree died instantly.

Mrs Maree and her granddaughter took cover but Snyman, who had been

discussing insurance business with the deceased, tried to intervene. The

assailant shot at Snyman and wounded him in the hand. He then fired more

shots, including one into the shop which shattered a glass display cabinet.

While the shooting was taking place a Mr Mokise was in the front

part of the shop. He saw the shooting and testified that a second person, whom

he was unable to identify, grabbed hold of him and threw him onto the street.

Mokise was able to observe the person who had shot the deceased leave the

shop and go down the street. Mrs Maree later ascertained that a tray of silver

bracelets had been removed from the display cabinet which was shattered by

the bullets fired by the assailant.

5 The charges against the appellant and Sono arise out of the death

of Mr Maree, the theft of the bracelets and the shooting of Snyman.

The appellant was identified as the person who had fired the shots by Mrs Maree, Snyman and Mokise. Mrs Swanepoel, the manageress of a shop next door to the jewellery store, heard the shots and went to the front door of her shop. A man whom she identified as the appellant hurried past her. He held a pistol in one hand and attempted to conceal something under his jacket with the other. Mr and Mrs da Silva were on the pavement on the opposite side of the street. They testified that the appellant went along the street carrying a box in one hand and holding a pistol in the other. He then entered a white van, referred to as a bakkie in evidence, which was parked in the street. The vehicle drove off.

There was also evidence from two policemen, Sergeants Khoela and Pieterse who were manning a road block near to Sannieshof, some 120

6 kilometres from Mafikeng. They told the trial court that they stopped a white

bakkie driven by Sono in the late afternoon or early evening of the day in

question. The appellant was the only passenger in the vehicle. There was a

fresh wound on his left arm. He told them that he had sustained the injury

from the fan belt of a harvester. A search of the bakkie revealed a 9 mm

parabellum pistol in the cubby-hole and a bracelet under the seat. The

appellant told Khoela that the pistol belonged to Sono. Mrs Maree, Snyman,

Mrs Swanepoel and the da Silvas identified the pistol as being similar to the

one which they had seen in the assailant's possession earlier that day; and it

was indeed common cause that spent cartridges found in the Marees' jewellery

shop had been fired from this hand gun. Moreover, Mrs Maree was able to

identify the bracelet as one that had come from her shop.

The appellant's evidence, in brief, was to the effect that he had

accompanied Sono and two other people, known only as Zachs and Ticky, to

7 Main Street Mafikeng in the said bakkie; that Zachs and Ticky, especially the

former, had compelled him to accompany them to Mafikeng Jewellers; and that

he had gone with them under duress. The appellant said that it was his task to

help the other two carry jewellery out of the shop. He denied that he had a

pistol in his possession. He claimed that the shots were fired by Zachs who

had gone into the shop first and that after the shooting he had tried to take

some jewellery from a display cabinet but had been unable to do so because

he had cut his hand on the glass. He also denied that he himself had entered

the workshop at the back of the shop. He testified that after the shooting he,

Zachs and Ticky had run back to the bakkie which proceeded to a place known

an Danville. There Zachs told Sono to take the pistol and added that he would

get it from Sono at a later stage. He also allegedly instructed them to drive to

Wolmaranstad where the bakkie was to be sold. Sono also gave evidence

which, to some extent, corroborated the appellant's version but it is not

8 necessary to say anything more about his testimony.

About a week after the incident the appellant appeared at various

identification parades at the local police station. He was there identified by

Mrs Maree, Snyman and Mokise as the person who had fired the shots and by

Mrs Swanepoel and the da Silvas as the person who had hurried along the

street, holding a pistol in one of his hands. In identifying the appellant the

witnesses relied - to a greater or lesser extent - on a prominent scar or mark

around the outer aspect of the appellant's left eye. The trial court placed no

reliance on the da Silvas' identification of the appellant on the grounds that

they would not have been able to see the scar because of the distance which

separated them from the appellant. Moreover, Mrs da Silva in court at first

identified a court orderly as the person whom she had seen running in the

street. The court, however, accepted that Mr da Silva had seen a man with a

pistol get into the passenger side of the bakkie and it is significant that

9 appellant testified that he did enter the passenger's side of the vehicle after the

shooting.

Mrs Maree told the trial court that on her way to the identification

parade she was told by a Major Brand to watch for a mark or scar on the face

of one of the suspects. Her son had also mentioned this to her. Moreover she

saw the appellant being taken out of a police van on her arrival at the police

station where the parade was to take place. Mrs Maree said that before she

was taken to the identification parade there was a discussion between her and

the other witnesses, apart from Snyman who was in another room, about the

fact that one of the suspects was the man with a scar on his face. The other

witnesses, however, denied that such a discussion had taken place. In the light

of Mrs Maree's disclosures, the trial court, quite correctly in my view, was not

able to place reliance on her identification of the appellant. Although the

Court a quo described Mrs Swanepoel as a woman of considerable resource

10 and self assurance it considered it to be unwise to rely on her identification of

the appellant because she had little time to observe him as he hurried past her.

Moreover there was the possibility that Mrs Swanepoel might have been

present during the discussion about the scar on the suspect's face.

Snyman, however, was not present during the said discussion.

The Court a quo considered that he was a satisfactory witness and that he had

had an adequate opportunity to observe the appellant, despite the terrifying

circumstances under which he had seen him. Mokise, who was described as

an honest witness, also had sufficient time to see the appellant's face,

according to the trial court. The court considered it to be doubtful whether

Mokise had heard any discussion about the scar before the identification

parades were held. In the result the court did not have regard to the evidence

of identification of Mrs Maree, Mrs Swanepoel or the da Silvas. For the

purposes of identification it placed reliance on the evidence of Snyman and,

11 to a lesser extent, on that of Mokise. Counsel for the appellant correctly

conceded that both Snyman and Mokise were honest witnesses. He submitted

however, that the circumstances under which they saw the suspect were not

ideal for identification purposes. This is true but the circumstances under

which the witnesses identified the appellant were carefully considered by the

trial court and its approach in this regard cannot be faulted. Furthermore the

evidence of da Silva and Mrs Swanepoel provides strong corroboration for the

finding that it was the appellant who went to the bakkie, holding a pistol in his

hand. The police evidence, moreover, shows quite clearly that the appellant

and Sono were in possession of the murder weapon and some of the stolen

property a short while after the shooting. The false explanation given by the

appellant to the police did nothing to advance his case.

Finally it is necessary to emphasise that the evidence given by the

appellant was so improbable that it cannot reasonably be true. A fundamental

12 feature in this case is that it was common cause that the appellant was in the

jewellery shop when the shots were fired but his explanation for his presence

there was far-fetched and not credible. The trial court gave detailed reasons

for rejecting his evidence but it is not necessary to repeat what is contained in

the judgment. It follows, therefore, that the appeal against the convictions

must fail.

As far as sentence is concerned, it was submitted on the appellant's behalf that the sentences were too severe and that the judge over­emphasised the nature of the offences and overlooked the personal circumstances of the appellant.

The appellant is a young man with no previous convictions. He is reasonably well-educated and comes from a stable family background. His counsel submitted in particular that the appellant should be given an opportunity to rehabilitate himself, particularly because of his youth. While

13 there is considerable force in counsel's submission, the personal circumstances

of the appellant must be weighed against the nature of the crimes. The

appellant's behaviour was callous in the extreme. He resorted to robbery for

personal gain and was quite prepared to kill to achieve his object. The courts

of this country are obliged to act with firmness when confronted with crimes

of this kind. While the sentences imposed on the appellant are severe they are

certainly not unreasonable or disproportionate to the sentences that are

warranted in this case. The trial judge exercised a proper discretion and

committed no misdirection. There is therefore no substance in the appeal

against the sentences and it should be dismissed, subject to what follows.

The judge ordered the sentence on Count 3 to run concurrently

with that of life imprisonment on Count 1. He made no similar order in respect

of the sentence on Count 2. This was obviously an oversight on his part and

in any event it is clear from s 32(2) (a) of the Correctional Services Act 8 of

14 1959 that the sentence on Count 2 must also run concurrently with the

sentence of life imprisonment on Count 1. It is so ordered and, save for this,

the appeal is dismissed.

MELUNSKY AJA

Hoexter JA)

Concur Plewman JA)

ORDER

The sentence on Count 2 will run concurrently with the sentence of life imprisonment imposed on Count 1. Save for this the appeal is dismissed.

Melunsky AJA