S v Pakane and Others

• Jurisdiction: South Africa
• Judge: Mthiyane JA, Maya JA and Hurt AJA
• Judgment Date: 28 September 2007
• Citation: 2008 (1) SACR 518 (SCA)
• Docket Number: 43/07
• Hearing Date: 30 August 2007
• Counsel: RB Engela for the appellants. NJ Carpenter for the State.
• Court: Supreme Court of Appeal

Maya JA:

I [1] This appeal arises from events which occurred in the early hours of 13 December 1999 at Coffee Bay in the Eastern Cape. The appellants were at the time police officers of varying ranks, stationed at a local police station, Mapusi. At about 02h40, they were despatched in a police van J driven by Sergeant Sokuyeka to investigate a report of a shooting

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incident near the backpackers' hostel in the village. The second appellant, A then a sergeant, was the most senior officer in the group. Both his co-appellants were constables. During their foot patrol in the vicinity of the place where the alleged shooting occurred, the second and third appellants fired a volley of shots. Shortly thereafter, Mr Louis Fourie, a local resident (the deceased) who, unbeknown to the appellants, had been patrolling the area, was found dead with gunshot wounds, in the B nearby bushes. Several R4 and 9 mm empty cartridges and a live bullet were subsequently recovered by the police at the scene.

[2] Some three and a half years later, the appellants were arrested in connection with the deceased's death. They were subsequently arraigned on charges of murder and of defeating the ends of justice. They denied C guilt. The court below (Miller J in the Mthatha High Court) convicted the second appellant as charged. He was sentenced to 15 years' imprisonment for the murder and eight years for defeating the ends of justice which was ordered to run concurrently with the 15-year sentence. His co-appellants were convicted only of being accessories after the fact D to murder and were each sentenced to eight years' imprisonment. They appeal against their convictions and sentences with the leave of this court.

[3] The issues on appeal are whether the evidence supports the convictions and the appropriateness of the sentences imposed on the appellants. E

[4] From the evidence adduced from several witnesses at the trial, the following picture emerged. A Mr Lang, one of the deceased's neighbours, telephoned the police at 02h30 on the fateful morning to report that shots had been fired by unknown people in the Lagoon Hotel area. He requested police assistance. The appellants were roused from sleep in F their police barracks and hastily despatched to the scene accompanied by another police van which conveyed their Station Commander, Captain Booi, and Sergeant Ngxumza. In addition to the State issued R4 rifle with serial number 806 295 A1 (rifle 295) carried by the second appellant, they were each armed with Z88 9 mm pistols. The two G vehicles separated along the way as a strategy to close off all possible escape routes.

[5] According to the appellants, the only witnesses to the shooting which subsequently occurred, they heard the sound of gunfire as they approached their destination. To avoid an ambush, they decided to leave H their vehicle, which was not armoured, in Sokuyeka's care some distance away and proceeded on foot. They walked in a tight single file along the southern edge of the tarmac road towards the Lagoon Hotel, led by the second appellant. It was dark and overcast. Fifteen to 20 minutes later, about 200 m from where they left their vehicle, the second appellant reported to his companions that he saw a figure carrying a big firearm I standing in the middle of the road, about 12 - 15 paces away. The third appellant confirmed that he also saw the shadowy figure but the first appellant saw nothing because of poor night vision.

[6] There are various contradictory versions regarding the next steps taken by the second appellant both in the confessions that he and the J

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A third appellant made to magistrates (admitted in evidence in terms of s 220 of the Criminal Procedure Act 51 of 1977 (the Act), albeit their subsequent allegations of duress by the investigating officers) and their oral testimony, a number of contrary versions having been put to the trial court by the time the proceedings concluded. I will therefore confine B myself to the evidence which the second appellant gave in court. He testified that having spotted the shadowy figure, he shouted a warning in English and in isiXhosa that they were police officers and ordered it to stop whereafter he fired warning shots with the rifle into the air. Seeing no reaction from the figure, he repeated the same process. The first and third appellants took cover in a ditch on the side of the road.

C [7] When the second warning shot was fired, the figure turned to face them and raised the firearm to a firing position. The second appellant shot at it and continued firing even after it disappeared until his rifle jammed. He attempted to clear the rifle without success. During this interval, the third appellant emerged from his hiding spot and fired a shot D with his pistol towards the bushes across the road into which the figure had disappeared. In the meantime, the second appellant had dropped to the ground, drawn his pistol and fired shots in the same direction to discourage any other would-be attackers.

[8] Thereafter, the appellants regrouped where they had left their E vehicle, without once crossing the road to the side where the figure had disappeared, and, on the instruction of the second appellant, drove back to the police station. There, the second appellant placed the rifle in the strongroom and booked out another R4 rifle with serial number 806 291 A1 (rifle 291). They then returned to the scene and joined Lang F and his group and Captain Booi in the search for the deceased who had been reported missing. He was subsequently found already dead, lying on his back, by his night guard, Mr Beja, near the left edge of the road, at the turnoff point towards the hotel. Members of the Serious and Violent Crimes Unit (SVC 'unit') arrived from Mthatha and commenced investigations.

G [9] Medical evidence led by the State established that the deceased had sustained two gunshot wounds (a) on the front left chest which lacerated his lungs and aorta, ruptured the heart and fractured his ribs with an exit on the right back chest; and (b) on the right jaw into the mouth cavity. There was also a superficial V-shaped laceration on the right shoulder H which the district surgeon (Dr Monahali) believed was probably caused during his fall. She described the lacerated star-shaped face injury as a contact wound inflicted from a distance of no more than 15 cm away. According to the specialist forensic pathologist, Prof Scholtz, the special features of the wounds indicated that the one in the chest was inflicted by a high velocity R4 rifle and that the one in the jaw was inflicted, at I close proximity, by a 9 mm pistol. These views were also endorsed by the ballistics expert called by the State, Inspector Dreyer.

[10] The medical experts concluded that the chest wound was the mortal one. The order in which the wounds were inflicted could not be ascertained conclusively but Scholtz described the one in the face as J 'perimortem', ie sustained at the most not long after death because there

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was sufficient vital reaction in the tissues. The fate of the bullet which A caused the wound was unknown and the medical experts expressed a view that it possibly remained lodged in the deceased's skull or had exited through his mouth cavity.

[11] Inspector Mithi of the SVC unit was the initial investigating officer of the case and one of the police officers who attended the scene directly B after the incident. He testified that when found, the deceased had in his hands a torch and a big 12 bore protector firearm tied to his wrist. He personally emptied the firearm which had its safety catch on. He found bullets in its magazine and none in the chamber - a clear indication that the firearm was not ready to be discharged. He stated that he suspected from the onset that police may have been involved in the shooting but his C enquiries from those present met no response. In the course of his investigations he requisitioned all the service firearms belonging to Coffee Bay Police Station and sent those handed to him for ballistics testing.

[12] Two people were, at some stage, arrested in connection with the D matter and kept in custody for two years before they were released without being charged. Investigations seem to have stalled thereafter and no further progress appears to have been made towards solving the case until December 2003, when it was reallocated to Inspector Coetzee of the East London SVC unit. Investigations commenced afresh. A reconstruction E of the scene (made possible by the fact that the paint markings of the original scene still remained visible on the road) established amongst things that the most likely position from which some of the cartridges found there were discharged, was on the same side of the road from which the deceased's body was recovered, just a few metres behind the body. F

[13] It is at this stage that it was discovered that two pages of the occurrence book relating to events of 12 December 1999 (which would have included entries of Lang's distress call to the police station and the appellants' departure from the station in response to that call) had been torn out and the relevant entries rewritten. In this regard, Ngxumza, who G was on duty when Lang called, testified for the State that on his departure from the station, the second appellant merely took rifle 295 from the other duty officer, Sgt Mjindi, without booking it out (a version which the trial court correctly rejected having regard to the other relevant evidence). When he and Captain Booi heard the gunfire after the party separated, they looked for the appellants and followed their van to the H station. Upon their arrival there, the second appellant instructed him to book out rifle 291 on his behalf and to rewrite the entries preceding Lang's call...