S v Mabaso and Another

• Jurisdiction: South Africa
• Judge: Hoexter JA, Smalberger JA, Milne JA, Eksteen JA and Nicholas AJA
• Judgment Date: 26 March 1990
• Citation: 1990 (3) SA 185 (A)
• Hearing Date: 09 November 1989
• Court: Appellate Division

J Hoexter JA:

This is a criminal appeal pursuant to a special entry. In the Witwatersrand Local Division a Court consisting of Vermooten AJ and

Hoexter JA

A two assessors convicted each of the two appellants of (a) attempted robbery with aggravating circumstances; (b) unlawful possession of a firearm; and (c) unlawful possession of ammunition. In respect of the above convictions each appellant was respectively sentenced to (a) 15 years' imprisonment; (b) 12 months' imprisonment; and (c) six months' imprisonment. In addition the first appellant was convicted of the B murder of one Quirino Anastacio Andrade ('Andrade'). In respect of the last-mentioned conviction no extenuating circumstances were found and the first appellant was sentenced to death. Upon an application by defending counsel in terms of s 317 of the Criminal Procedure Act 51 of 1977 ('the Criminal Code') the learned Judge caused a special entry to C be made on the record of the proceedings. On the ground of the alleged irregularity or illegality therein set forth the two appellants appeal to this Court against their convictions and sentences aforesaid.

The main events which led up to the trial in the Court below were the following. In King George Street in central Johannesburg there was a business known as the Montenegro Meat Market ('the butchery'). On the D evening of 26 June 1987, and while the butchery was open, it was entered by four men ('the intruders'), two of whom were armed with loaded pistols. Inside the building Andrade and one Manuel de Jesus Lopes Cunha ('Cunha') were busy counting money. Shots were fired from both pistols E and both Andrade and Cunha sustained fatal gunshot wounds. Andrade was killed outright. Cunha died very shortly afterwards. Immediately after the shooting the intruders fled from the butchery; but they left behind them, lying on the floor of the butchery, spent cartridges which had been ejected from the pistols during the shooting. The policemen F investigating the shooting took possession of these cartridges.

Some 10 days after the shooting, on 6 July 1987, the first appellant was arrested by the South African Police. In the very early hours of 7 July 1987 the first appellant directed Lieutenant De Waal of the Brixton Murder and Robbery Unit, and other policemen, to a house in Soweto. There the first appellant pointed out the second appellant and one Zodwa G Ngcamu ('accused No 3'). The police arrested the second appellant and accused No 3. The first appellant then directed the party of policemen to Dube Hostel where he pointed out one Bafanyana Mbuyisa ('accused No 4'). The police arrested accused No 4. A little later, but still in the small hours of 7 July 1987, the second appellant took Lieut De Waal back H to the house at which he had been arrested. Lieutenant De Waal was the investigating officer in the case and he testified for the State at the trial in the Court below. At the said house, so testified Lieut De Waal, the second appellant told one Amos to take Lieut De Waal to a house across the road. Upon his arrival at the latter place, so Lieut De Waal told the trial Court, a Mrs Paulina Nkosi handed to him a locked I cash-box. De Waal then returned to the house at which the second appellant had been arrested, and on the ground in front of the back door he picked up a key. De Waal discovered that the key fitted the lock of the cash-box. Having unlocked the cash-box De Waal found that it contained, inter alia, three firearms. The cash-box was handed in at the J trial as exh 1. Still in the early hours of 7 July 1987 the

Hoexter JA

A second appellant directed Lieut De Waal to an address in Soweto where the second appellant pointed out one Sipho Dhlamini ('Dhlamini'), who was also arrested.

On the following day (8 July 1987), and in terms of s 119 of the Act, five men appeared in the Johannesburg Magistrate's Court before an B additional magistrate, Mr P J Bredenkamp ('the magistrate'). The five men were the first and second appellants, the third and fourth accused, and Dhlamini. Subsequently the Attorney-General declined to prosecute Dhlamini; and at the trial in the Court below Dhlamini was called as a witness for the prosecution. Both in the magistrate's court and at the trial the first and second appellants were the first and second accused C respectively, and accused No 3 and accused No 4 were the third and fourth accused respectively. After the matter had been called it was postponed to 9 July 1987 when the prosecutor put three charges to the accused and the magistrate required each accused to plead thereto.

In terms of s 119 of the Act the prosecutor put the following three D charges to the accused:

'Count 1:	Attempted robbery with aggravating circumstances. That accused Nos 1 - 5 as per J15 (hereinafter called the accused) are guilty of the crime of attempted robbery with aggravating circumstances as intended in s 1(1)(b) of Act 51 of 1977. In that upon or about 26 June 1987 and at or near Montenegro E Meat Market, King George Street in the district of Johannesburg the accused did unlawfully assault Manuel De Jesus Lopes Cunha and Quirina Anastacio Andrade, White males, by threatening and shooting them with firearms and attempting to take by force and violence from their possession cash, the amount which is to the State unknown, their property or in their lawful possession, aggravating circumstances being F present in that the accused wielded dangerous weapons, to wit, firearms.
Count 2:	Murder The said accused are guilty of the crime of murder in that upon or about 26 June 1987 and at or near Montenegro Meat Market, King George Street in the district of Johannesburg the said accused did unlawfully and G intentionally kill Manuel De Jesus Lopes Cunha who was in life an adult White male by shooting him with a firearm.
Count 3:	Murder The said accused are guilty of the crime of murder in that upon or about 26 June 1987 and at or near Montenegro Meat Market, King George Street in the district of H Johannesburg the said accused did unlawfully and intentionally kill Quirina Anastacio Andrade who was in life an adult White male by shooting him with a firearm.'

On 9 July and in response to the aforesaid charges the two appellants pleaded as follows. The second appellant pleaded not guilty on all three I counts. The first appellant pleaded guilty on count 1 (attempted robbery with aggravating circumstances); guilty on count 2 (murder of Cunha); and not guilty on count 3 (murder of Andrade).

Section 121(1) of the Act provides that where an accused under s 119 pleads guilty to the offence charged, the presiding magistrate shall question him in terms of the provisions of para (b) of s 112(1). The J latter provisions enjoin the questioning of an accused

Hoexter JA

A '... with reference to the alleged facts of the case in order to ascertain whether he admits the allegations in the charge to which he has pleaded guilty'.

Section 121(2)(b) provides that if the magistrate is not satisfied that the accused admits the allegations stated in the charge

'... he shall record in what respect he is not so satisfied and enter a plea of not guilty and deal with the matter in terms of s 122(1): B Provided that an allegation with reference to which the magistrate is so satisfied and which has been recorded as an admission, shall stand at the trial of the accused as proof of such allegation'.

The pleas of the appellants having been recorded, the magistrate explained to the first appellant that he would be questioned

'... in order to determine whether you in fact agree with all the C allegations concerning these counts on which you pleaded guilty',

and the magistrate asked the first appellant whether he had understood the explanation. The first appellant replied in the affirmative. The magistrate asked the first appellant whether he was pleading guilty on count 1 of his own free will and the first appellant replied that he was. The magistrate asked the first appellant whether he admitted that D on 26 June 1987 he had visited 'the Montenegro Meat Market, King George Street, Johannesburg'. From the answer given it appeared that the first appellant was unaware of the name of the butchery visited by him. To this the first appellant added:

'Your worship, the problem is, I do not know the name it is obviously this one.'

E In response to further questions the first appellant stated that 'all of us' went to the butchery; and he explained that 'all of us' comprised

'... myself, that is with the other three accused. Accused 2, 3 and 4. And accused 5 was the driver of the motor vehicle.'

The magistrate asked the first appellant why he had gone to the F butchery. The answer was:

'The reason, a Black man who is employed at the butchery, who informed us that there is money. That is why we went there your worship.'

The magistrate asked the first appellant what had then happened. The first appellant answered that they had entered the premises and demanded G money. One of the people in the butchery argued with them, and he (the first appellant) fired two shots. He did so, he said, because a Portuguese man in the butchery wanted to stab him with a knife. He did not know the name of the Portuguese man. The first appellant said that it had been his intention to remove cash from the butchery but that in fact no money was taken. After firing the shots he ran out of the H butchery. The magistrate asked the first appellant whether, in firing the shots, he had aimed at any particular person. The answer was:

'Your worship, I pointed the firearm in the direction of a Portuguese man I am referring to. I do not know if he was hit or shot as such, your worship.'

Having questioned the first appellant in terms of s 112(2)(b) the I magistrate was not satisfied that he admitted all the allegations...