S v Libazi and Another

• Jurisdiction: South Africa
• Judge: Mthiyane JA, Mlambo JA and Shongwe JA
• Judgment Date: 01 June 2010
• Citation: 2010 (2) SACR 233 (SCA)
• Docket Number: 424/09
• Hearing Date: 05 May 2010
• Counsel: MR Hellens SC for the appellants.S Mbewu for the State (DPP, Mthatha and Bloemfontein).
• Court: Supreme Court of Appeal

Mlambo JA:

Introduction

[1] The first and second appellants (Libazi and Mbayimbayi) and three others were arraigned before Petse DJP sitting in the Sterkspruit Circuit I Court of the Mthatha High Court. They were all indicted on one count of murder arising out of the death of Mr Thokozile Anderson Thubela, one count of conspiracy to commit murder, five counts of attempted murder in which the complainants were Messrs Mawethu Malangabi, Gcobani Ngcakana, Simphiwe Ngqaza, Lunga Maqala and Linda Malangabi, one count of unlawful possession of two AK47 rifles, one J

Mlambo JA

A count of unlawful possession of three 9 mm pistols, one count of unlawful possession of 9 mm, AK47, R4 and R5 ammunition, and one count of theft of a firearm. At the conclusion of the trial only Herbert Shasha (Shasha), who was accused 3 during the trial, was convicted on the murder and theft counts. The appellants were convicted on the B conspiracy count as well as on three and two counts of attempted murder respectively [1] but were acquitted on all other counts. The remaining two accused were acquitted on all counts.

[2] The High Court sentenced each of the appellants to 10 years' imprisonment on the conspiracy count, as well as 10 years' imprisonment C on each of the attempted murder counts they were convicted of. The court further ordered that nine years of each of the sentences imposed on account of the attempted murder counts were to run concurrently with the sentence imposed on the conspiracy count. This resulted in an effective term of imprisonment of 13 years for Libazi and 12 years for Mbayimbayi. The High Court subsequently granted the D appellants leave to appeal to this court against their conviction on the conspiracy count, but refused them leave to appeal against their other convictions and sentences. This court, however, granted the appellants leave to appeal to this court against their convictions for attempted murder and against all the sentences imposed by the High Court. Shasha E subsequently passed away and is not an appellant in the appeal before us.

[3] The criminal proceedings sketched above arose from some shooting incidents which occurred in and around Sterkspruit on 27 May 1995. On that day a number of men allegedly allied to the Herschel United F Taxi Association (HUTA) pursued and shot at members of the Herschel Long Distance Taxi Association (HLDTA). With the exception of Shasha, the appellants and the other accused persons who were acquitted were admittedly members of HUTA, whilst Thubela, the deceased, and all the complainants in the attempted murder counts, were members of HLDTA. The first shooting incident occurred on the outskirts of G Sterkspruit when occupants of a white Toyota Corolla fired shots at the occupants of an Opel Kadet whose passengers were members of HLDTA. Ngcakana, who was the driver of the Kadet, identified Libazi as one of the assailants. Mawethu Malangabi, who was a passenger in the Kadet, also identified Libazi as well as Mbayimbayi as two of the assailants. H Further shooting incidents took place at the Buyafuthi taxi rank in Sterkspruit. On this occasion Lunga Maqala was shot at by occupants of a white Corolla and was wounded in his right thumb, index finger and thigh. He identified Libazi as one of the assailants. Linda Malangabi also witnessed the shooting incident at the taxi rank and saw the deceased, who had fallen to the ground whilst attempting to run away, being shot I several times as he lay on the ground. This witness, however, was unable to identify any of the assailants.

Mlambo JA

[4] In convicting the appellants, the High Court relied predominantly on A the evidence of Mr Mbulelo Albert Mbulawa (Mbulawa) and a number of eyewitnesses, including the complainants in the attempted murder counts, as well as on an extra-curial statement signed by Shasha and given to a magistrate in Sterkspruit on 24 December 1996. That statement, which came to be known as exhibit D during the trial, reads: B

'We were fetched from Phola Park in Johannesburg by certain young men from Sterkspruit. There is a certain man whom I know as Dlomo. He is residing at [Dawn] Park. He arrived in the company of two young men. They were travelling in a white 12 valve Toyota Corolla. Dlomo introduced the two young men as Andile Libazi and Mbayimbayi. C He then introduced me to the two young men. Dlomo said that the two young men were his homeboys in Sterkspruit. Their presence there was that they were assaulted by Zulus who are having taxis which transport passengers from Sterkspruit. One of their colleagues has passed away and that they needed assistance. I told Dlomo that there are certain young men to whom he can talk. Whilst we were standing, the two of D them appeared. We then talked to them. We explained to them the presence of the two young men from Sterkspruit. The young [men] agreed to come and assist. The two young men from Phola Park requested me to accompany them. Andile and Mbayimbayi promised to offer some money after the job had been done. They asked us how much were we going to need. We told them that we never did this. They thanked us. Later on we told them that we wanted a sum of R6000-00. E They agreed and told us that we should go to Sterkspruit immediately. They said that the people [they] were fighting against are armed with firearms. They agreed that they were having firearms after we asked them. At about 18h00pm they picked us [up] after they had dropped Dlomo. We arrived at about 11h00pm in Sterkspruit. We attended a night vigil of Andile's colleague. Andile and his colleague talked with F other taxi drivers. We remained in the M/V. We then left and they followed us. We went to fetch an R1 rifle from a certain homestead. We were told that it had no rounds of ammunition. Some of the taxi drivers went to ask for some fire-arms. They came back with one fire-arm. We told them that we cannot work with one fire-arm. We decided to go back and not fight if there were no fire-arms. We demanded the money G they promised us. They did give us money. They then took us back. We said that if they found more fire-arms they could come and fetch us. They fetched us again on the following week saying that they will try to collect another fire-arm in Soweto. They collected the fire-arm. At about 8h00pm we left for Sterkspruit. We arrived there at about 12h00pm at Andile's place. We were then taken to Mvelase's place. In H the morning some drivers arrived at Mvelase's place. It was alleged that their rivals were at the taxi rank busy loading passengers. The two young men from Phola Park were taken to the taxi rank by a white motor vehicle carrying rifles. One of the men who were having another fire-arm arrived carrying two fire-arms. He then gave me a .38 rifle. We I then proceeded to the taxi rank travelling with Mvelasi's van. Before we entered the taxi rank we heard gun shots next to the garage. We met Andile's M/V retreated. We met another gentlemen of Andile saying that they were fighting. His M/V had been shot. We also turned back when we [did] not see Andile's group. There were also policemen. On our arrival at Mvelase's place others also arrived. They said that they found a fire-arm from somebody who had been shot. They did not J

Mlambo JA

A know as to whom the fire-arm belongs. We suggested that they took us back home. They told us to remain a while because there were soldiers. On the following day we left for Johannesburg travelling in a Mercedes Benz. On the second occasion we were offered a sum of R3000,00.

That is all.'

B [5] Shasha, who was legally represented, did not contest the State's application for the admission of the statement into evidence and to it being used against him. Nor did he contest that the statement was given by him freely and voluntarily. The appellants, however, resisted the State's application to have the same admitted in evidence against them C in terms of s 3(1)(c)[2] of the Law of Evidence Amendment Act 45 of 1988 (the LEAA). The High Court ruled that the statement was admissible hearsay evidence against the appellants and undertook to provide reasons at the conclusion of the trial. The court has, however, not provided its reasons for the ruling.

D [6] The appeal against all the convictions is primarily based on two legs. The first is that the High Court erred in ruling that Shasha's statement was admissible, not only against him, but also against the appellants. The other basis specifically in relation to the convictions on the attempted murder counts is that the evidence of the State witnesses was unreliable due to the influence of the rivalry between the taxi associations, E and further due to inadequate opportunity for the witnesses for reliable identification during the shooting incidents.

[7] The ruling by the High Court and the proper approach to s 3(1)(c) featured prominently in the argument before us. In this regard it was F argued that the statement, properly construed, amounted to a confession and as such was inadmissible against anyone else, other than its maker,

Mlambo JA

in terms of the provisions of s 217 [3] of the Criminal Procedure Act 51 of A 1977 (the CPA). An alternative argument was that, if it were found that the statement was not a confession, but an admission, that it was similarly not admissible against the appellants in terms of s 219A [4] of the CPA. Pursuing this argument, we were invited to revisit the reasoning and conclusion of this court in S v Ndhlovu and Others, [5] where statements B by two co-accused which, despite their disavowal by their alleged makers, were treated as hearsay evidence in terms of s 3(1)(c) and were ruled to be admissible against the co-accused in that matter. It was argued before us that that matter had been wrongly decided and that we should depart from it. It is appropriate...