S v Hadebe and Others

• Jurisdiction: South Africa
• Judge: Marais JA
• Judgment Date: 29 September 1997
• Citation: 1997 (2) SACR 641 (SCA)
• Hearing Date: 12 September 1997
• Counsel: A B Burger and T Verschoor for the appellants N J Carpenter for the State
• Court: Supreme Court of Appeal

Marais JA:

The four appellants were convicted in the Witwatersrand Local Division upon one court of murder, one count of attempted murder, one count of unlawfully possessing four firearms, and one count of unlawfully possessing a quantity of ammunition. They were all sentenced to death upon the murder count and imprisonment for five years upon the attempted murder count. The first three appellants were sentenced to imprisonment for two years, and the fourth J appellant to I

Marais JA

imprisonment for three years, upon the counts of unlawfully possessing four firearms and a quantity of ammunition, the A two counts being taken together for the purpose of sentence. The latter terms of imprisonment imposed upon the appellants were ordered to run concurrently with the sentence of five years' imprisonment imposed in respect of the count of attempted murder. B

All of the appellants appeal against all of their convictions and the sentences of death, leave to appeal having been granted where necessary by the learned Judge (Marais J) in the Court a quo. A special entry made at the request of the appellants is also before the Court. I shall return to it in due course. The appellants were acquitted in the same proceedings upon another count of murder. C

The State set out to prove the following case against the appellants.

Count 1 (Murder)

The deceased, Sibusiso Nkosinathi Chonco, was shot dead at approximately 17:00 on Friday, 6 November 1992 while in a Nissan Skyline motor vehicle at Tshiawelo in Soweto. A large number of shots were fired at the deceased and the D vehicle in which he was seated. A red Nissan Sentra motor vehicle travelling at high speed was seen in the vicinity of the Nissan Skyline at about the same time. On arrival at the scene of the shooting the police found and took possession of three spent cartridge cases. One was found in the street about 30 m away from the Nissan Skyline; one was found inside E the Nissan Skyline on the window ledge of the door next to the front seat on the passenger's side of the vehicle and one was found approximately one metre away from where the deceased lay on the ground next to the Nissan Skyline. Photographs depicting the spent cartridge cases and the places where they were found were taken by Sergeant Nieuwoudt at about 19:40 on the same day. The deceased had been shot repeatedly and five spent bullets were F recovered from his body in the course of the post-mortem examination. The State was unable to call any witness who could identify the person or persons responsible for shooting the deceased.

Count 2 (Murder) G

In the afternoon of the following day, Saturday, 7 November 1992, another shooting took place. One Fisher Makhoba was killed and one Jeffrey Flower Njikelani was wounded. They had been working on a vehicle at deceased's home at Senoane in Soweto with two other men when the shooting suddenly commenced. The latter two men managed to run H away and so avoid being shot. The deceased and Njikelani were less fortunate. Both of them were shot and fell to the ground. While they were lying on the ground a person moved between them, bent downwards, and removed from its holster a 9 mm CZ pistol owned by the deceased. None of the witnesses was able to say who the person was. Further shots were fired at the deceased as he lay on the ground. Deceased succumbed to his many bullet wounds and died. I Njikelani was hit only once in the buttock and survived. A large number of spent cartridge cases as well as some bullet heads and a live bullet were found in the immediate vicinity. In addition, three spent bullets and the jacket of a bullet were recovered from the body of the deceased. J

Marais JA

A That very afternoon, and quite coincidentally, a police patrol encountered a red Nissan Sentra motor vehicle not far from the scene of the shooting. It excited suspicion but when the occupants of the police vehicle showed interest in it, it sped off. Despite pursuit by the police for a number of kilometres, the sounding of a siren, and the flashing of lights, the B Sentra failed to stop. Eventually the driver lost control of it and it mounted an island in the middle of the road and came to a halt. In the car were the four appellants. Sergeant Brits searched the vehicle and found on the floor in the front of the car a 9 mm CZ pistol (exh 1) and a .38 Taurus revolver the serial number of which had been obliterated (exh 2). Constable Volschenk found in the back of the car two more handguns. They were another .38 Taurus revolver (exh 3) C and a 9 mm Browning pistol (exh 4). It was subsequently found that the 9 mm CZ pistol (exh 1) belonged to the deceased (Mr Makhoba). Furthermore, ballistic tests showed that some of the cartridge cases found at the scenes of D both the shooting on Friday, 6 November and the shooting on Saturday, 7 November had been fired from the Browning pistol (exh 4).

Both of the deceased persons had been involved in the business of operating taxis and the appellants were also so involved. The State contended that it had succeeded in proving beyond reasonable doubt the facts outlined above and that they gave rise to an irresistible inference that the four appellants had joined in a murderous attack upon Mr Chonco E on Friday, 6 November and upon Mr Makhoba and Mr Njikelani on Saturday, 7 November.

The four appellants denied that they were involved in any way in either of the attacks. Not all of them gave evidence upon oath but those who did (first and third appellants) said that they had given the police patrol no reason to take any F particular interest in them; that there had been no pursuit of them in the manner described by the police; that they stopped on becoming aware that the police wished them to do so; that they were unaware of the presence in the vehicle of any handguns and that there were good reasons why they were on the road together at that time.

G The Court a quo considered the evidence tendered by the State in respect of the murder of Mr Chonco to be...