S v Groenewald

• Jurisdiction: South Africa
• Judge: Mpati DP, Scott JA, Cameron JA, Van Heerden JA and Mlambo JA
• Judgment Date: 08 September 2005
• Docket Number: 055/05
• Hearing Date: 16 August 2005
• Counsel: J G Cilliers SC for the appellant. F C Roberts for the State.
• Court: Supreme Court of Appeal

Cameron JA:

[1] The appellant was convicted in the Pretoria High Court (Pretorius AJ and assessors) of the murders of Prince Makena and Simon G Chuene Kgobo, and the attempted murder of Xavier Lekgoate. He was sentenced to an effective term of 20 years' imprisonment. He appealed to the Full Court, where a majority (Seriti J, Mbha AJ concurring) dismissed his appeal; R D Claassen J dissented. This Court granted special leave for a further appeal against conviction and sentence. H

[2] The case is unusual because of the time between the incident and the prosecution. The incident occurred on Saturday night, 5 May 1990. The appellant was arrested three days later. Despite initial opposition by the State, he was granted bail. Some months later, in late 1990, he left South Africa for Portugal, in breach of his bail I conditions, where attempts to extradite him on the present charges failed. He returned for unrelated reasons in 2000 and was arrested some two years later. His trial commenced in the Pretoria High Court on 10 February 2003, nearly 13 years after the fatal events. J

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[3] The case is singular also because of the nature of the State's evidence. Two eyewitnesses testified against the A appellant - the complainant in the attempted murder charge, Mr Xavier Lekgoate, and Mr Brian Chester-Browne, who was in the appellant's company at the time of the events. Lekgoate and Chester-Browne testified to similar effect regarding the shooting that led to the deaths and to Lekgoate's injuries, but to radically different effect about what preceded it. B

[4] The appellant pleaded not guilty and put all the elements of the case against him in issue. His counsel informed the Court that there had been discussions between him and the State and that 'the necessary admissions' regarding the post-mortem reports 'et cetera, et cetera' would be formulated and handed up later, to save time. In the result, the State called no medical or ballistic C evidence. It relied, instead, on agreed admissions that defence counsel formulated. These admissions became pivotal to the defence argument at the close of the trial, and in the appeal to the Full Court, where they formed the basis of the dissenting judgment of Claassen J. D

State case

[5] Chester-Browne - whom the State undertook formally not to prosecute - testified that, on the night in question, he was driving the appellant, his passenger, from Cullinan to Mamelodi (a Pretoria township) in his Alfa Guilietta, when they were E 'pulled over' by a Nissan Skyline that cut in front of them. The occupants, three black men, approached. One of them accused the occupants of the Alfa of throwing a stone at their vehicle and breaking the windscreen. The appellant alighted. His pistol was drawn, pointing at the black men. Chester-Browne's account of what then happened was terse: 'I didn't take part in much of the conversation. We inspected F the vehicle, the accused suggested we go to the Mamelodi Police Station. There seemed to be some discussion and then the accused shot them.'

[6] The appellant, Chester-Browne said, was, at this stage, a little more than an arm's length from the others. He pursued one who G ran away and later returned to the vehicle. He asked where the first person was that he had shot, but he 'had in the meantime got up and run away'. Since there were headlights approaching, 'we got in the car and drove away'.

[7] In cross-examination, Chester-Browne stated that no stone was thrown from his vehicle at the Nissan; that the Nissan forced his H vehicle to a halt; that the actions of the occupants were aggressive; and that 'a very tense situation' had resulted. He was firm that he himself had fired no shots and that the appellant alone had. There was no attack upon him or the appellant and he was aware of 'no attempt to arrest' anyone. I

[8] Lekgoate gave a completely different account of events leading to the shooting. He and his companions, the deceased Simon Kgobo and Prince Makena, were travelling to Cullinan in the Nissan. He was in the front passenger seat; Kgobo was driving. A white vehicle passed them. It flicked its lights at them, but Kgobo declined to stop in the dark. The J

Cameron JA

vehicle passed them again. This time the front passenger threw an object at the Nissan, which broke its windscreen. A (Police photographs after the incident showed a damaged windscreen.) Kgobo slowed down and stopped. The other vehicle stopped ahead. Two white men alighted and approached. The person from the passenger side had a firearm in his hand. The men ordered them from the vehicle. The driver challenged Kgobo for not stopping when ordered to do so. B Lekgoate noticed that the vehicle was not a police vehicle - but the armed man told him that the registration plate was incorrect. The men alleged that cards they displayed were police appointment certificates; but Lekgoate could see they were not. The driver asked them if they knew of the Wit Wolwe. [1] Kgobo and Lekgoate denied knowing of them. The driver then asked for their identity documents. Lekgoate and C Kgobo produced theirs. When Makena wished to retrieve his from the vehicle, someone said: 'No, leave it, old chap' ('Nee, los dit, ou kêrel'). The driver then asked his companion: 'Shouldn't we just let them go?' The other replied: 'Why?' D

[9] Lekgoate was then shot. He suffered two gunshot wounds to the abdomen, and one to the left elbow. He fell to the ground. The shooting continued. When he heard footsteps of the men running away from where he was, he managed to crawl and hide himself in the grass next to the road. Shots continued. Then he heard the men close by, asking each other where he had hidden himself. One said: 'No, man, leave them, let us get in the vehicle.' The doors slammed and they E drove off. Lekgoate dragged himself from the grass to the road surface. A passing motorist stopped but did not assist. He crawled to the vehicle, where he found Kgobo lying close to the driver's door. Kgobo proved unresponsive to efforts to rouse him. Lekgoate then drove the Nissan to the Mamelodi police station. He was taken to Mamelodi day F clinic and thence, by ambulance, to Kalafong hospital, where he was operated on.

[10] Lekgoate insisted that he was the first person to be shot and that only one person fired. This was the passenger of the other vehicle. The driver, he stated, was not armed and did not fire. On 16 May, a week after the appellant's arrest, Lekgoate identified G the appellant at an identification parade. However, at the same parade, he also made a second, mistaken identification, while omitting to identify Chester-Browne, who was present.

[11] On Monday 7 May, two days after the shooting, the investigating officer, detective warrant officer Oosthuizen, visited H Lekgoate in hospital. Later that day or the next day, Oosthuizen made a note on the case dossier. This recorded that Lekgoate had described the man who shot as blond, with longish and slightly curly hair. It was not disputed at the trial that this description would apply to Chester-Browne, but not to the appellant. Oosthuizen's note also recorded that the blond-haired person I

Cameron JA

was wearing khaki (Chester-Browne testified that he could not recall whether he was wearing khaki or what A the appellant was wearing).

[12] Later, after his discharge from hospital, Lekgoate made a formal written statement to the police. In this, his description of the man who fired the shots (shorter than his companion, black hair) accorded with his identification of the appellant at the identity parade. At the trial, Lekgoate did not recognise the appellant in Court B as his assailant but confirmed that the man he identified at the identity parade was he.

[13] The investigating officer, Oosthuizen, who had the dossier from Monday 7 May until he left the police force at the end of June 1990, testified that spent cartridges (doppies) were...