S v Robiyana and Others

• Jurisdiction: South Africa
• Judge: Dhlodhlo ADJP, Greenland AJ and Darwood AJ
• Judgment Date: 27 June 2008
• Citation: 2009 (1) SACR 104 (CK)
• Docket Number: CC55/2001
• Hearing Date: 14 March 2008
• Counsel: TN Price for the appellants. JJ Cillier for the State.
• Court: Ciskei High Court

Greenland AJ:

[1] D This is an appeal against the convictions and sentences imposed on the appellants by the High Court, Bisho, on 15 May 2003, after a trial lasting just over one year. The trial record comprises some 25 volumes totalling 1 666 pages. The appellants were granted leave to appeal by the Supreme Court of Appeal after such leave was refused the appellants, E and four other accused with whom they were tried, by the trial judge, White AJP.

First appellant was found guilty on two counts of murder, four counts of attempted murder, four counts of malicious injury to property and one F count of unlawful possession of a firearm.

Second appellant was convicted on one count of unlawful possession of a firearm and one count of unlawful possession of ammunition.

Third appellant was convicted on one count of G murder, one count of unlawful possession of a firearm and one count of unlawful possession of ammunition.

Right at the outset it is made clear that there was no attack on the court's findings that the crimes were actually committed. The issue for determination H is whether the court a quo was right in concluding that it was proved beyond reasonable doubt that the appellants were complicit in the commission of the crimes of which they stand convicted.

Background

[2] In all, the appellants faced 30 counts, involving, inter alia, murder, I attempted murder, racketeering and unlawful possession of firearms, all arising out of a saga, spanning the period September 1999 to May 2000, of violent strife, colloquially known as a turf war, between two taxi organisations constituted as Melta Non Racial Taxi Organization (Melta Non Racial) and Mdantsane and East London Taxi Association J

Greenland AJ

A (MELTA). Appellants were all members of Melta Non Racial which had broken away from MELTA. Note that the name Melta Non Racial does not denote a racial grouping.

Basis of convictions

B [3] In summary the convictions were founded on (quotes are extracts from the judgment) -

(a)

as regards all the appellants:

(i)

acceptance of evidence establishing the commission of the offences;

(ii)

C acceptance of the evidence of an accomplice witness, one Lungile John Nyalela (Nyalela), having been warned in terms of s 204 of the Criminal Procedure Act 51 of1977 (the CPA);

(iii)

an overall finding that, as regards each appellant, upon weighing up the evidence of the State witnesses against that of the D appellant, the court was satisfied that ' . . . the evidence of the accused is not reasonably possibly true';

(iv)

an adverse finding regarding the appellants' professed lack of memory formulated as 'it is surprising that not one of the accused can remember where they were on any of the relevant E days' and elaborating by pointing out that the last of the incidents had occurred barely two months before their arrest;

(v)

a rejection of a claim that the police must have coached Nyalela into implicating the appellants;

(vi)

a finding of the existence of corroboration of Nyalela's evidence in the confession of a co-accused, Vuyo Johnson Grootboom F (Grootboom), who was tried and convicted as accused 2;

(b)

as regards the first appellant:

(i)

an adverse finding that his bare denial of the State evidence of the saga of violence that undoubtedly had occurred on an G ongoing basis simply did not ring true, accepting his admitted status as an executive member of Melta Non Racial holding the position of Public Relations Officer;

(ii)

an adverse finding that in the circumstances his evidence, that the executive of Melta Non Racial did not meet in order to address such terrible and extraordinary events, was highly H improbable;

(iii)

a finding that conversely the evidence of this witness 'painted a picture which would have been fertile ground for Melta Non Racial attacking Melta . . . (as) . . . their drivers were shot and taxis burnt shortly before the attacks on Melta, mentioned in I this case, occurred';

(c)

as regards second appellant:

a finding that it was safe to reject the appellant's evidence which was essentially a 'bare denial when . . .weighed against Nyalela's evidence, bearing in mind the general weaknesses in the witness' J evidence';

Greenland AJ

(d)

as regards third appellant: A

an adverse finding that the witness's evidence in denial of knowledge of some of the violent incidents, and of knowing Nyalela and accused 2, both of whom implicated him, was '. . . so improbable as to be unacceptable . . . (and) . . . manifestly simply an attempt to exonerate himself'. B

Demeanour and credibility findings

[4] From the above it is obviously the case that the court was unimpressed with each of the appellants as witnesses. Not surprisingly, therefore, on appeal reliance was placed on the fact that the court a quo made no specific adverse findings as to the demeanour of the appellants. C In the absence of adverse findings regarding demeanour, so the submission must be formulated herein, the court should not have found that ' the evidence of the accused is not reasonably possibly true'.

(a)

It is of course trite that demeanour is one of the factors that a court is entitled to take into account in its assessment of a witness. D Sometimes it is a critical factor. See S v Hassim and Others 1972 (2) SA 448 (N) at 457E where James JP refused to issue a commission in respect of a witness who was refusing to attend court, as he considered the evaluation of the witness's demeanour and conduct was of fundamental importance. Also see S v Nyamayevu 1978 (2) E SA 684 (R) at 688E where Smith J refused to issue a commission where the evidence to be obtained was of a material nature and the evaluation thereof depended on the manner in which a witness would testify and on his demeanour.

(b)

However, it is certainly not the case that a court is obliged to accept F the evidence of a witness whenever it is unable to make an adverse demeanour finding in respect of such witness. Such an approach would lead to the absurd result that criminals, skilled in the art of mendacity, would be entitled to acquittal despite the most comprehensively damning evidence, simply on account of their ability to calmly and assuredly brazen out their denials without being ruffled G in any way. See S v Martinez at (e) below.

(c)

So it is the case that there are instances where demeanour may actually be disregarded. In S v Basson 2000 (4) SA 479 (T) at 482 Hartzenberg J stated -

In S v Hoare and Others 1982 (3) SA 306 (N) at 309 James AJP H issued a commission where the ultimate triers of fact would not physically see or hear the witness. It was justified on the basis that the triers of fact were not a jury but experienced legal people.

Franklin J held in S v Mzinyathi 1982 (4) SA 118 (T) at 122D - G I that a magistrate misdirected himself where he refused to issue a commission on the ground that he would not be able to see and hear the witness. This application was on behalf of the accused.

(d)

The approach of Du Toit AJ in S v Minnies and Another 1991 (1) SACR 355 (Nm) (1991 (3) SA 364) at 366 (at 376 (SA)) is an example of a situation where good demeanour did not preclude the J

Greenland AJ

A court from rejecting part of the evidence of police witnesses, as evidenced by the following quote by the learned judge -

On the whole, I cannot criticise the demeanour of the policemen in Court. Their stories however were remarkably similar. But what they could not explain satisfactorily, in my view, was:

(1)

why, if they could interrogate Brand at the police station, they B could not interrogate Minnies there; and

(2)

why it was necessary to take Minnies (and Mbali, for that matter) to a lonely unlit shed to conduct an interrogation.

I cannot accept that a policeman of the seniority .

(e)

C The whole issue of the utility of demeanour being a reliable indicator of truthfulness is eloquently put in a nutshell by Levy J in S v Martinez 1991 (4) SA 741 (Nm) at 758.

This Court hesitates and is loathe to condemn a witness because of his or her demeanour in the witness-box.

D Some people follow occupations which frequently expose them to the public eye and they have learnt to speak with conviction even when they are lying. Others are able to disguise their feelings and emotions and may be so crafty that they can simulate an honest demeanour. On the other hand some persons who are entirely truthful are shy, withdrawn and nervous by nature and unable to E express themselves. They hesitate and some times even lean over backwards to be fair. When the witness is a foreigner from a different cultural background the difficulty is compounded. Where witnesses speak through interpreters one has even greater difficulties. Voice intonations, nuances of language, which may convey different shades of meaning, are frequently lost.

F Consequently references to demeanour, if they are to carry any weight at all, should only back up conclusions reached by an objective assessment of the facts.

(f)

Pertinent is the dictum of Davis AJA in R v Dhlumayo and Another 1948 (2) SA 677 (A) at 697 -

G It is often urged by counsel that, when the court below has made no comments on the demeanour of the witnesses, then the appellate court is in just as good a position to decide the case as was that lower court. But this can hardly ever be so - see per LORD SHAW in Clarke's case (supra). The mere fact that the Judge did not H comment on the demeanour of the witnesses is not to say that he was not - perhaps even unconsciously - greatly influenced by the whole intangible atmosphere of the case that he himself had tried. As was said by LORD MACMILLAN in Watt v. Thomas (supra, at p. 590):

I 'The appellate court had before it only the printed record...