S v Naidoo and Others

• Jurisdiction: South Africa
• Court: Supreme Court of Appeal
• Judge: Marais JA, Zulman JA and Mpati JA
• Judgment Date: 14 November 2002
• Citation: 2003 (1) SACR 347 (SCA)
• Hearing Date: 02 May 2002
• Docket Number: 321/2001
• Counsel: J E Howse for the third appellant. S Manilall for the State.

Marais JA:

[1] On the afternoon of 24 March 2000 a teargas canister was activated in the Throb Club in Chatsworth while it was packed with schoolchildren celebrating the end of a school term. A stampede ensued E in which 13 young people died and many were injured. Charges of murder, assault, and unlawful possession of the teargas canister were preferred against three persons alleged to have been responsible for the activation of the canister.

[2] The murder charges failed because the Court (Hugo J and F assessors) concluded that it had not been proved that the deaths either had been desired or actually foreseen. The Court found that the deaths should have been foreseen and convicted all three accused on 13 counts of culpable homicide (a competent alternative verdict in terms of s 258 of the Criminal Procedure Act 51 of 1977). They were also G convicted on 57 counts of common assault and the count of unlawful possession of the teargas canister.

[3] The three accused were each sentenced to 18 months' imprisonment on each of the 13 counts of culpable homicide. In the case of accused Nos 1 and 2 the sentences imposed in respect of three of the counts H were ordered to run concurrently with one another and with the sentences imposed in respect of the remaining counts of culpable homicide. No such order was made in respect of accused No 3. All of the accused were sentenced to six months' imprisonment in respect of their unlawful possession of the teargas canister and five years' I imprisonment in respect of the 57 counts of common assault, which were taken together for the purpose of sentencing. These sentences were also ordered to run concurrently with one another and with the sentences imposed in respect of the convictions of culpable homicide. The net effect of it all was that accused Nos 1 and 2 were sentenced effectively to 15 years' imprisonment and accused No 3 to 19 years' imprisonment. J

Marais JA

[4] Accused Nos 1 and 2 were granted limited leave to appeal by the A Court a quo. They were restricted to contending that their conviction upon multiple counts of culpable homicide and assault was impermissible in law and that they should have been convicted of one count of culpable homicide in which the death of 13 people was involved and one count of common assault in which 57 people were assaulted. They B were granted unrestricted leave to appeal against their sentences. They have not prosecuted their appeals and there was no appearance by them or on their behalf when the appeal was heard. I shall return to what the consequence of that should be.

[5] The Court a quo granted accused No 3 unrestricted leave to appeal against all his convictions and sentences. Heads of C argument were filed and counsel appeared on his behalf at the hearing of the appeal.

[6] The case which the State sought to prove against accused No 3 (to whom I shall refer hereafter as the appellant) was that he, a part owner of a rival club (the Silver Slipper) in Chatsworth, supplied D accused Nos 1 and 2 with the teargas canister and commissioned them to smuggle it into the Throb Club and then activate it so that the patrons would flee the premises and repair to the Silver Slipper instead.

[7] The appellant denied that he had done so and raised alibis. He also called some witnesses in support of his case. The case for the State rested upon the evidence of an accomplice, one Dayalan Tyrone E Pillay, and the corroboration of it which was submitted to exist. In essence, the defence case was that Pillay and the other two accused activated the canister for reasons of their own, more specifically, to facilitate the robbing of patrons. That was said to be a technique F which had been employed by a local gang on a previous occasion.

[8] The submissions of counsel for the appellant were, in broad, that the trial Court's evaluation of the evidence of the accomplice Pillay and of the evidence which was said to provide material corroboration of it in respects implicating the appellant was faulty and that the G evidence of the appellant and his witnesses had not been accorded the weight it should have been.

[9] Some of the criticisms of the evidence of Dayalan Pillay have substance but the trial Court acknowledged that to be so and took them into account in evaluating his evidence. In deciding that these H criticisms did not derogate from the acceptability of his incrimination of the appellant, the Court a quo found satisfactory corroboration for it in a number of respects.

[10] There was the evidence of Poobalan (Billy) Pillay that the night before the incident the appellant arrived at his flat in a white Golf I motor vehicle and enquired about the whereabouts of accused No 1 and Dayalan Pillay. He asked the witness to tell them that they should come to him at the Silver Slipper. The witness testified further that on the morning of the incident the appellant arrived again at his flat in the same vehicle and again asked for accused No 1 and Dayalan Pillay. They were J

Marais JA

not there but accused No 2 was there and he and the appellant left A in the appellant's vehicle.

[11] After the incident (at about 16h00) accused Nos 1 and 2 and Dayalan Pillay came to his flat. Accused No 2 (who is his stepson) had blood on his clothes and the clothes of accused No 1 were creased. Both had a bath and left his flat at about 18h00 together with Dayalan B Pillay. Later that evening the police arrived. They were looking for accused No 2. Five to ten minutes after the police had left the appellant arrived in the Golf vehicle which he parked behind the building in a position in which it could not be seen from the road. (On the two previous visits he had parked it in the front of the building C where it could be seen.) Accused Nos 1 and 2 and Dayalan Pillay were with him.

[12] Upon being informed that the police had come looking for accused No 2, Dayalan Pillay and the appellant told accused No 2 to pack his clothes so that they could all 'go'. When the wife of accused No 2 remonstrated with them and asked who would provide for her in the D absence of accused No 2, the appellant gave her R70 and told her not to worry. All four of them then departed in the Golf vehicle.

[13] This witness also testified that the appellant subsequently offered him R70 000 and a half a packet of mandrax tablets to induce his stepson (accused No 2) 'not to talk about him'. The appellant's E evidence was that none of these allegations relating to him was true.

[14] It was not disputed that the appellant drove accused Nos 1 and 2 and Dayalan Pillay to Umkomaas and left them there that very evening. The appellant's version was that he encountered accused Nos 1 and 2 and Dayalan Pillay quite fortuitously that evening at a casino a few F doors away from the entrance to the Silver Slipper Club. Accused No 2 asked him for a lift. He told them that he was going to watch soccer at the stadium and all three of them accompanied him to watch the soccer. About three quarters of the way through the match accused No 2 said that he needed to go home urgently. He looked very worried. As the G soccer was boring he left with the three of them and took them to accused No 2's home.

[15] Accused No 2 asked him to wait a few minutes for him as he wished to return to the casino. While waiting he heard 'loud screams' emanating from the balcony on the second floor. Accused No 2 and his H family were on the balcony and his wife was hysterical. They all looked 'shocked' and 'worried'. They begged him to take accused No 2 to Umkomaas. He assented and accused No 1 and Dayalan Pillay accompanied them to Umkomaas where he dropped them and returned to the club.

[16] During a bail application by the appellant in the magistrate's I court the appellant told the presiding magistrate that he wished to see a magistrate in private, that he did not want to talk to his attorney who was present in court and who wished to speak to him, and that he wanted to make a statement in private to a magistrate - 'maybe a confession'.

[17] While in custody the appellant indicated to Captains Govender and J

Marais JA

Cassim that he wished to see the investigating officer because he A wanted to become a State witness. The appellant's evidence was that he said nothing of the sort to them.

[18] There was the evidence of Bradley Moonsamy that on the fatal day he was told by the appellant to have his entrance fee for the Silver Slipper Club ready because all the people from the Throb Club would be B coming to the Silver Slipper Club. That such a statement was made by him was denied by the appellant.

[19] There was also the evidence given by accused Nos 1 and 2 which implicated the appellant and confirmed Dayalan Pillay's evidence in many important respects. The Court a quo bore in mind that C they were accomplices on their own version and that a cautious approach to their evidence was needed.

[20] The evidence given at the trial had, of course, to be considered in its entirety before any conclusions could be safely reached. It...