S v Safatsa and Others

• Jurisdiction: South Africa
• Judge: Botha JA, Hefer JA, Smalberger JA, Boshoff AJA and M T Steyn AJA
• Judgment Date: 01 December 1987
• Citation: 1988 (1) SA 868 (A)
• Hearing Date: 02 November 1987
• Court: Appellate Division

Botha JA:

On 3 September 1984 Mr Kuzwayo Jacob Dlamini, the deputy mayor of the town council of Lekoa, was murdered outside his house in Sharpeville, near Vereeniging. A mob of people numbering about 100 had attacked his house, first by pelting it with stones, thus breaking the J windows, and then by hurling petrol bombs through the windows, thus

Botha JA

A setting the house alight. Mr Dlamini's car was removed from the garage, pushed into the street, turned on its side, and set on fire. As his house was burning down Mr Dlamini fled from it and ran towards a neighbouring house. Before he could reach it he was caught by some members of the mob, who disarmed him of a pistol that he had with him. He was then assaulted. Stones were thrown at him and some members of the B mob went up to him and battered his head with stones. Thereafter he was dragged into the street, where petrol was poured over him and he was set alight. He died there.

These events led to eight persons - they are the eight appellants in this case - being charged in the Transvaal Provincial Division before Human AJ and assessors on two counts. Count one was a charge of murder, C arising out of the killing of Mr Dlamini, to whom I shall henceforth refer as the deceased. Count two was a charge of subversion, which was framed in terms of s 54(2) of Act 74 of 1982 (the Internal Security Act), with reference to certain circumstances surrounding the killing of the deceased which will be detailed later. Count two contained D alternative charges of arson and malicious injury to property. All the appellants pleaded not guilty to all the charges. For convenience I shall refer to the appellants collectively as the accused and individually by means of the numbers allocated to each of them in the Court a quo. At the conclusion of a lengthy trial the trial Court convicted the accused as follows:

Count one: accused Nos 1, 2, 3, 4, 7 and 8 convicted of murder; E accused Nos 5 and 6 convicted of public violence (this being a competent verdict in terms of s 258 of the Criminal Procedure Act 51 of 1977).

Count two: all the accused convicted of subversion.

In respect of the convictions of accused Nos 1, 2, 3, 4, 7 and 8 on the charge of murder, the trial Court found that there were no F extenuating circumstances. Consequently each of these accused was sentenced to death. In respect of the convictions of accused Nos 5 and 6 of public violence, each of them was sentenced to 5 years' imprisonment. In respect of the convictions of subversion, all of the accused were sentenced to 8 years' imprisonment. In the case of accused Nos 5 and 6 it was ordered that their sentences of imprisonment were to run G concurrently.

The trial Judge granted leave to all the accused to appeal to this Court. In his judgment granting leave the learned Judge specified certain grounds upon which he considered that leave should be granted. The first issue to be considered in this appeal is whether the trial Judge intended to curtail the ambit of the appeal by limiting it to the H grounds specified in his judgment (this was the contention advanced on behalf of the State) or whether the grounds specified were merely the reasons mentioned by the learned Judge for granting leave which was intended nevertheless to be leave in general terms (as was contended for on behalf of the accused). This issue was argued separately, as a I preliminary matter, at the outset of the hearing of the appeal. At the conclusion of this part of the argument the Court announced that counsel for the accused would be allowed to argue the appeal without any limitation as to the scope of the grounds he wished to canvass and that the Court would deal with the preliminary arguments in its final judgment. In order to explain why this course was followed, and also J with a view to the basis upon which the factual issues

Botha JA

A will be dealt with later in this judgment, it is necessary first of all to survey some aspects of the course of the trial generally and of the trial Judge's judgment on the merits, and thereafter to advert to the application for leave to appeal and the trial Judge's judgment thereon.

The trial was, as I have said, a lengthy one. A large number of witnesses were called to testify, both for the State and for the B accused. Amongst the witnesses called by the State were a number of eyewitnesses of the events, or parts of the events, in question. Of these, the names of three must be mentioned now: Jantjie Mabuti, Mrs Alice Dlamini, and Joseph Manete. Mabuti gave the most detailed account of the entire sequence of the events. In his evidence he implicated C accused Nos 1, 4, 5, 6, 7 and 8, all of whom were known to him. Mrs Dlamini, the widow of the deceased, testified to part of the events, and implicated accused No 1, whom she knew. Manete described a part of the events that he witnessed, and implicated accused Nos 7 and 8, who were known to him. Accused No 2 was implicated by a confession that he had made to a magistrate, which was ruled to be admissible after a 'trial D within the trial', and also by a letter he had written to the Minister of Justice while in prison. Accused No 3 was implicated by means of police evidence as to the circumstances under which the deceased's pistol was found in his possession some time after the events.

During the cross-examination of the State witness Manete, counsel for E the accused informed the trial Judge that he (counsel) was in possession of a statement made by Manete which was prima facie a privileged statement, having been made by the witness to an attorney for the purpose of obtaining legal advice. Counsel argued that he was nevertheless entitled to cross-examine Manete on the contents of the F statement. It will be necessary later in this judgment to examine the nature of the argument that was put forward by counsel and what transpired during its presentation to the Judge a quo. For present purposes the point to be recorded is that the trial Judge at the conclusion of the argument delivered a judgment in which he held that he had no power to order Manete to be cross-examined about the statement. G Accordingly he ruled that such cross-examination be disallowed.

All the accused gave evidence denying complicity in the events that led to the killing of the deceased. Most of them denied having been at or near the scene at any relevant time and some set up alibi defences of an elaborate nature, involving the calling of many witnesses. In H addition, a number of witnesses were called to contradict some of the general observations deposed to by the eyewitnesses called by the State, particularly Mabuti.

In a comprehensive judgment on the merits of the case Human AJ analysed all the evidence in detail and furnished full reasons as to why the trial Court accepted the evidence of certain witnesses and rejected I that of others. With regard to the eyewitnesses called by the State, the trial Court found that some of them were unreliable and that no weight could be attached to their evidence; others the trial Court found to be both credible and reliable witnesses. In the latter category were the three witnesses whose names I have mentioned already: Mabuti, Mrs Dlamini, and Manete. It is clear from the judgment that the trial Court J considered

Botha JA

A Mabuti to be a particularly impressive witness; the Court's opinion of him, as recorded by the trial Judge, was that he was an extremely competent, intelligent and honest witness. During the course of the events in question he had deliberately from time to time moved from one vantage point to another in order to be able the better to observe the events, with the specific object of later making a full report of what B he had seen to the police (which he did). The Court found, on an analysis of his evidence, that he was able to make the observations to which he testified and that they were reliable. Of Mrs Dlamini the trial Judge observed that her honesty could not be questioned (nor was it), and that her observations were found by the trial Court to be reliable. As to Manete, the trial Judge remarked that in respect of some details C his evidence was subject to valid criticism. The trial Court treated his evidence with caution, but nevertheless found it to be acceptable, particularly insofar as he implicated accused Nos 7 and 8. In this regard it must be noted that the trial Court, in assessing the State case, placed reliance on the fact that Mabuti and Manete corroborated D each other in a number of material respects. (This aspect of the trial Court's approach will be referred to again later.) With regard to the witnesses for the defence, the trial Judge canvassed numerous contradictions and other unsatisfactory features in the evidence of each of the accused, which the trial Court regarded as justifying the rejection of the denials of complicity by the accused as being false E beyond reasonable doubt. Similarly, the evidence of the witnesses called in support of the alibi defences and in refutation of some of Mabuti's general observations was scrutinised at considerable length in order to demonstrate the grounds upon which the trial Court concluded that that evidence, insofar as it was material, was also false beyond reasonable F doubt.

Against this background I now turn to the application for leave to appeal. The application contained no less than 22 separately enumerated grounds upon which leave was sought, some of which were of a composite nature. I do not propose to quote these grounds. For the most part they related to specific findings of fact by the trial Court and to the G acceptance or rejection by the trial Court of the evidence of particular witnesses. For instance, in para 10 the ground of appeal put forward was that the trial Court had erred in accepting the evidence of Mabuti, for a number of reasons, including...