Magmoed v Janse van Rensburg and Others

• Jurisdiction: South Africa
• Judge: Corbett CJ
• Judgment Date: 25 November 1992
• Counsel: J Browde SC (with him JJ Gauntlett SC and LA Rose Innes) for the appellant BW Burman SC (with him JJ Wessels and PJJ de Jager) for the respondents
• Citation: 1993 (1) SACR 67 (A)
• Court: Appellate Division

Corbett CJ:

The events with which this case is concerned occurred in Thornton Road, Athlone (a suburb of Cape Town) at about 17:00 on 15 J October 1985. It was

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A a time of serious civil unrest in the Athlone area, and elsewhere; and Thornton Road was one of the trouble spots. In order to deal with the situation, authorities concerned with unrest prevention and control, viz the South Arican Police, the South African Railway Police and the South African Defence Force, had established a joint operational centre at B nearby Manenberg. At this centre daily meetings were held and operations were planned. On the day in question it was decided at such a meeting to send a railway delivery truck to patrol certain unrest areas, including Thornton Road. On the truck, which was driven by a sergeant in the Railway Police, were nine passengers, all members of either the Police or the Railway Police. In circumstances which I shall later describe in greater detail a shooting incident occurred in Thornton Road. In the course of C this incident the passengers on the truck, who were all armed with shotguns, fired a number of shots in the direction of persons gathered in groups in and near Thornton Road. As a result of the shooting three persons were killed and at least 15 wounded. One of the persons killed was a 16-year-old youth, Shaun Magmoed ('the deceased').

The Attorney-General of the Cape having issued a certificate of nolle prosequi, the father of the deceased, Martin Stanley Magmoed ('the D appellant'), instituted a private prosecution in the Cape of Good Hope Provincial Division in terms of which the 10 policemen on the truck at the time of the shooting (fourth to thirteenth respondents inclusive) and three senior officers alleged to be concerned with the planning of this operation (first, second and third respondents) were indicted with murder, alternatively culpable homicide. The case was heard by Williamson J and assessors. After a protracted trial lasting over four months, in which E none of the respondents was called to give evidence, all the respondents were acquitted on both charges.

Thereafter the appellant, being dissatisfied with the outcome of the trial, made application in terms of s 319 of the Criminal Procedure Act 51 of 1977 ('the Act') for the reservation of certain questions of law for the consideration of the Appellate Division. For reasons which have been F reported (see Magmoed v Janse van Rensburg and Others 1990 (2) SACR 476 (C)) Williamson J refused the application. The appellant then applied on petition in terms of s 319(3), read with s 317(5), of the Act to this Court for an order directing that the questions of law be reserved. Acting under s 319(3), read with s 317(5) and s 316(8)(d), this Court made the following order on the application:

'1.

The application for the reservation of questions of law in terms G of s 319, read with s 317(5), of Act 51 of 1977 is referred to the Appellate Division for consideration in terms of ss 319(3), 317(5) and 316(8)(d) of the said Act.

2.

In the event of the application being granted in respect of any of the questions of law sought to be reserved, counsel are requested to be prepared forthwith to argue the appeal on the question or questions of law reserved.

3.

A full record, as if on appeal, must be prepared and lodged for H hearing of argument on the application. The record must include the present petition with such annexures as do not in any event form part of the record on appeal.'

The matter now comes before us in terms of this order.

Regard being had to the procedures involved, this Court is accordingly required to decide in relation to each of the questions which the I appellant seeks to have reserved as questions of law (1) whether there are good grounds for granting the application to have the question reserved as a question of law; (2) assuming the answer to (1) to be in the affirmative, whether the question of law should be answered in favour of the appellant or not; and (3) in the event of the question being answered in appellant's favour, what relief the appellant should be granted.

The petition asks for six questions of law to be reserved. Questions 1 and 2 deal with the correctness of rulings given by the trial Judge on the J admissibility of

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A certain evidence; questions 3 and 5 may be ignored since appellant no longer seeks their reservation; and questions 4 and 6 relate to the merits of the trial Court's decision to acquit the respondents. It will be convenient to start a consideration of the application with question 4.

Before doing so, I should mention en passant that there was before us at the hearing a petition by appellant for condonation of his failure to B lodge the appeal record within the required time limit. The application was not opposed by the respondents and was granted at the inception of the hearing.

Question 4

This question, as formulated in the petition and as amended in a minor C respect by appellant at the hearing before us, reads as follows:

'Whether as a matter of law the trial Court was correct in concluding on the basis of its factual findings and the uncontroverted evidence summarised in annexure "C" hereto that no unlawful common purpose on the part of any of the accused was established beyond reasonable doubt either

(a)

in the sense of an agreement prior to the vehicle leaving the D joint operational centre to carry out a punitive and illegal expedition entailing acts of assault, culpable homicide or murder; or in the absence of any prior agreement

(b)

in the sense of acts of association by the accused present on the truck with the conduct of each other in perpetrating acts of assault, culpable homicide or murder.'

E The acts as found by the trial Court and the uncontroverted evidence, all of which is summarised in annexure 'C' to the stated case, may be stated as follows:

The railway delivery truck to which reference has already been made was ordered to patrol the Athlone area, including Thornton Road, in pursuance of a decision taken at the joint operational centre by first, second and third respondents. The truck was to all outward appearances an ordinary railway delivery vehicle; but on the loading platform there were three F large wooden crates and crouching in these crates, hidden from view, were seven policemen armed with shotguns and side-arms (respondents Nos 4, 5, 7, 8, 10, 12 and 13). Another policeman (respondent No 11), similarly armed, was hiding under a short canopy immediately to the rear of the cab of the truck. The truck was being driven by a policeman (respondent No 9) and a policeman (respondent No 6) was sitting in the passenger seat. G Respondents Nos 6 and 9 were both wearing khaki-coloured dustcoats. Respondent No 6 was also armed with a shotgun. Because outward appearances concealed its real inwardness the truck was likened to the wooden horse which in ancient times led to the fall of Troy.

The shooting incident took place near the T-junction formed where St Simons Road enters Thornton Road. The latter road runs north/south. After H entering Thornton Road the truck proceeded along Thornton Road, past the T-junction, for some distance in a northerly direction. It then turned and came back. When it again reached the T-junction it was stoned by members of a crowd estimated at between 50 and 200 persons. Thereupon the hitherto concealed policemen on the back of the truck stood up and commenced firing with shotguns; as also did the passenger in the front of the truck. The shooting lasted some 17 seconds, with the consequences already described. I What actually happened at the time of the shooting is portrayed on a video film which was put in as an exhibit at the trial. This film was shot mainly by a cameraman employed by CBS News, a Mr C D N Everson; but it also contains an insertion of film taken from a different angle by another CBS cameraman, a Mr W de Vos. The trial Judge included in his judgment a description of what appears on the video film and this is incorporated in J annexure 'C'. The description reads as follows:

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A 'An orange truck, of the type frequently used by the railways, is seen proceeding down Thornton Road in a northerly direction at a relatively low speed. Wooden crates are visible on the rear of the truck. The truck resembles an ordinary railway delivery vehicle going about its usual business. This would also have been the impression created to those who were present in the vicinity at the time the truck B passed. No people are visible in the rear of the truck. As the truck passes the three shops on the western side of Thornton Road it has to manoeuvre past a parked car on the left-hand side of the road in front of the shops and it then moves back into the left lane so as to avoid an approaching motor car. There are no barricades, burning objects or other obstructions visible in Thornton Road. The approaching traffic appears C to move freely. There are furthermore no crowds of people visible in the vicinity. There are a few people visible on the stoep of the café and a few others behind the wall of a house adjoining 102 Thornton Road. The truck proceeds past the intersection with St Simons Road without any incident.

The next sequence of footage shows the same truck returning down Thornton Road, this time moving in a southerly direction. (We know from D the minute of the inspection in loco (exh 51) that the truck turned around at Denchworth Close, approximately 800 metres away from the intersection of Thornton and St Simons Roads.) This piece of footage is a continuous shot with no edits or stoppages. The entire incident from the time the first object hits the windscreen to the last shots being fired is seen and heard.

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