S v Mbanyaru and Another
Jurisdiction | South Africa |
Judge | Moosa J, Bozalek J and Dlodlo J |
Judgment Date | 11 August 2008 |
Citation | 2009 (1) SACR 631 (C) |
Docket Number | A 271/2007 |
Hearing Date | 21 July 2008 |
Counsel | PJ Burgers for the appellants, instructed by the Justice Centre, Cape Town.S Raphels for the State. |
Court | Cape Provincial Division |
Moosa J:
[1] The appellants were convicted on 21 August 2006 on one count each B of murder, of attempted murder and of the unlawful possession of a firearm. On 18 October 2006, first and second appellants were sentenced to 18 and 14 years' imprisonment, respectively; on the count of attempted murder they were each sentenced to five years' imprisonment and on the count of unlawful possession of a firearm they were each sentenced to three years' imprisonment. The court further ordered that C the sentences imposed in respect of the attempted murder and the unlawful possession of a firearm should run concurrently with the sentence imposed in respect of the murder. The effective sentences of first and second appellants were accordingly 18 and 14 years' imprisonment respectively. The appellants, with the leave of the trial court, come D on appeal to this court against their convictions and sentences.
[2] Despite the fact that only second appellant formally applied for leave to appeal, the trial court granted both appellants leave to appeal. First appellant did not file his grounds of appeal. Second appellant's grounds of appeal are contained in his application for leave to appeal. Adv E Burgers, who appeared before us for both first and second appellants, was instructed by the Legal Aid Board. He informed us that he had instructions to appear for both appellants and, despite the fact that no grounds of appeal had been filed for first appellant, he had instructions to pursue the appeal in respect of him also. He indicated that the F grounds of appeal in respect of both appellants are substantially similar and he is in a position to argue the appeal in respect of both of them. Adv Raphels, for the State, had no objection thereto and the court allowed Adv Burgers to put the case to us for both of the appellants.
Grounds of appeal G
[3] The grounds of appeal on the merits of the convictions are substantially threefold. Firstly, that the trial court erred in accepting the identification evidence of the State and rejecting the alibi of the appellants and concluding that the evidence, as a whole, established the guilt of the appellants beyond reasonable doubt. Secondly, that the trial H court erred in not rejecting the evidence of Nomasibongwe Patricia Hlobo (Hlobo) and Phazamile Patrick Dyonase (Dyonase) because of the material discrepancy in their evidence as to whether or not they saw second appellant in possession of a firearm at the time they were seen running away from the crime scene. Thirdly, that the trial court erred in holding that the crime was executed by the appellants in pursuance of a I common purpose. The court will deal with each of these grounds in turn.
The facts
[4] It is common cause that on 13 February 2004 and at Old Faure Road, Khayelitsha, one Nasir Frieslaar (the deceased) was shot and J
Moosa J
A killed, and one David John van der Westhuizen (Van der Westhuizen) was shot and injured. The undisputed evidence is that on the particular day and place the deceased was sitting in the driver side of his stationary bakkie and Van der Westhuizen in the passenger side of the bakkie. The deceased had hooted to indicate to his workmen, who were living in the B vicinity, that he had arrived to transport them to their workplace. While they were waiting in the bakkie, an assailant appeared at the driver side of the bakkie and, without saying a word, shot the deceased. The deceased slumped forward and later died as a result of shot wounds to the neck and chest. Van der Westhuizen, who saw the assailant shooting, C crouched in the bakkie to avoid being shot, but discovered later that he had been shot in the chest. He also noticed another person standing behind the assailant. After the deceased was shot, the bakkie which was idling, began careening out of control across the road, while the assailant was hanging on to the steering wheel. In the process the bakkie crashed against another vehicle and came to rest against a wall on the opposite D side of the road.
The identification
[5] Van der Westhuizen was unable to identify the assailant or the person standing behind him. Gobodo Tom (Tom), who was present at the scene E near the bakkie during the shooting, was likewise unable to identify the assailant with the firearm. He did not see a person standing behind the armed assailant as testified to by Van der Westhuizen. He, however, saw two persons standing at the passenger side of the bakkie. He could not say whether they were involved or not with the armed assailant. He, F however, testified that they did not run away when other members of the public ran away while the shooting was in progress. Two State witnesses, namely Hlobo and Dyonase, saw two persons running away from the direction of the crime scene soon after they heard shots being fired. The two persons ran past them. According to Hlobo one was armed, but according to Dyonase both were armed. I will return to this issue later. G Hlobo and Dyonase identified the first and second appellants as the persons who had run past them. Dyonase testified that although it was not daylight, the street lights were still on. The street lighting was good. He had no difficulty in seeing their faces as they ran past him. Hlobo testified that they ran behind each other towards her from the scene of H the crime. She had enough time to look at them when...
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S v Mzwempi
...S v Majosi and Others 1991 (2) SACR 532 (A): compared S v Maxaba en Andere 1981 (1) SA 1148 (A): referred to S v Mbanyaru and Another 2009 (1) SACR 631 (C): referred to S v Mgedezi and Others 1989 (1) SA 687 (A): discussed and applied S v Molimi 2008 (2) SACR 76 (CC) (2008 (3) SA 608; 2008 ......
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Author index
...273, 279, 286S v Mavungu 2009 1 SACR 425 (T) ..................................................... 283S v Mbanyaru 2009 1 SACR 631 (C) ..................................................... 246S v Mdali 2009 1 SACR 259 (C) ............................................................ 464S v M......
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S v Tsotetsi
...suspended for four years. (See [33].) Cases cited S v Langa and Others 1998 (1) SACR 21 (T): referred to S v Mbanyaru and Another H 2009 (1) SACR 631 (C): S v Motaung 1990 (4) SA 485 (A) ([1990] ZASCA 75): applied S v Ngwenya and Others 1998 (2) SACR 503 (W): referred to S v Thebus and Anot......
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S v Radebe
...carried out, the only reasonable inference was that the accused had had direct intention to kill". [36] In S v MBANYARU AND ANOTHER 2009 (1) SACR 631 (C) a distinction was also made between direct intention to kill and preplanning or premeditation. The court found that the close range at wh......
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S v Mzwempi
...S v Majosi and Others 1991 (2) SACR 532 (A): compared S v Maxaba en Andere 1981 (1) SA 1148 (A): referred to S v Mbanyaru and Another 2009 (1) SACR 631 (C): referred to S v Mgedezi and Others 1989 (1) SA 687 (A): discussed and applied S v Molimi 2008 (2) SACR 76 (CC) (2008 (3) SA 608; 2008 ......
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S v Tsotetsi
...suspended for four years. (See [33].) Cases cited S v Langa and Others 1998 (1) SACR 21 (T): referred to S v Mbanyaru and Another H 2009 (1) SACR 631 (C): S v Motaung 1990 (4) SA 485 (A) ([1990] ZASCA 75): applied S v Ngwenya and Others 1998 (2) SACR 503 (W): referred to S v Thebus and Anot......
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S v Radebe
...carried out, the only reasonable inference was that the accused had had direct intention to kill". [36] In S v MBANYARU AND ANOTHER 2009 (1) SACR 631 (C) a distinction was also made between direct intention to kill and preplanning or premeditation. The court found that the close range at wh......
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Author index
...273, 279, 286S v Mavungu 2009 1 SACR 425 (T) ..................................................... 283S v Mbanyaru 2009 1 SACR 631 (C) ..................................................... 246S v Mdali 2009 1 SACR 259 (C) ............................................................ 464S v M......
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Recent Case: Evidence
...of identification has always been a con-troversial issue in the law of evidence. The full bench decision in S v Mbanyaru and another 2009 (1) SACR 631 (C) once again had to grasp the nettle. There were two state witnesses, one corroborating the other on the points considered by the court a......