S v Thebus and Another

• Jurisdiction: South Africa
• Judge: Chaskalson CJ, Langa DCJ, Ackermann J, Goldstone J, Madala J, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J and Yacoob J
• Judgment Date: 28 August 2003
• Citation: 2003 (2) SACR 319 (CC)
• Docket Number: CCT 36/02
• Hearing Date: 20 February 2003
• Counsel: J Gauntlett SC (with D P Borgström) for the appellants. J A D'Oliveira SC (with A D R Stephen) for the State.
• Court: Constitutional Court

Moseneke J:

[1] This is an appeal against the judgment and orders of the Supreme Court of Appeal (the SCA) handed down on 30 August 2002, G confirming the convictions of both appellants in the Cape High Court on 14 September 2000 on one count of murder and two counts of attempted murder. H

Factual background

[2] On 14 November 1998, a group of protesting residents in Ocean View, Cape Town, gathered and approached the houses of several reputed drug dealers in the area, including the house of one Grant Cronje. They allegedly caused damage to the property of Cronje before I moving on. The protestors drove through the area in a motorcade of about five to six vehicles. As the motorcade approached a road intersection Cronje opened fire on the group. In response, some members of the group alighted from their vehicles and returned fire. In the resulting J

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crossfire, a seven-year-old girl, Crystal Abrahams, was fatally shot and two others, Riaan van Rooyen and Lester September, A were wounded. [1]

[3] Thereafter, the two appellants were arrested on suspicion of having been part of the group involved in the shooting incident. After the arrest of the first appellant, Sergeant McDonald of the South African Police Services warned him that he was not obliged to make any B statement and that if he did it may be used in evidence against him. In this regard Sergeant McDonald testified as follows:

'Tydens die onderhoudsverklaring . . . toe ek hom nou gewaarsku het van sy regte. Toe vra ek hom of hy vir my 'n verduideliking wil gee, toe sê hy ja. Hy het toe vir my sy weergawe gegee. Ek het dit, soos hy praat het ek dit genotuleer, maar hy wou nie hê dat, ek moes C dit in 'n verklaringvorm sit nie. Dit wou hy nie gehad het nie.' [2]

The first appellant readily admitted that after his arrest he was informed of the charges of which he was suspected and warned that he need not make a statement. He, nonetheless, made an oral statement before Sergeant McDonald. In this regard, his evidence is as follows: D

'Ja. So met ander woorde mnr McDonald het vir u gesê daar is getuies wat sê u was betrokke, maar u het geweet dat u eintlik by u tweede vrou was daardie tyd. - Ja.

Het u dit vir mnr McDonald gesê? - Ek het gesê die familie was in Hanover Park gewees. Maar ek het nie gesê waar ek was nie. E

Enige rede daarvoor? - Nee, ek het nie rede gehad nie.

So met ander woorde u het vir mnr McDonald gesê die familie was in Hanover Park, maar u het niks gesê van uself nie. - Van myself nie.

En u sê daar was geen spesifieke rede daarvoor. - Nee.' [3]

[4] Thereafter, the first appellant refused to make a written statement to the police. Nearly two years passed before the appellants F were brought to trial. Neither of the appellants disclosed his alibi defence until the trial before the High Court.

[5] At the trial, the State led evidence placing both appellants in the vicinity of the shooting. A witness for the State, Gregory Edward Kiel (Kiel), testified that he had seen the first appellant G standing near a vehicle holding a pick-handle, while the second appellant was retrieving spent cartridges discharged from the firearms of other members of the group. He also testified that the second appellant held a firearm but that

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he had not seen him shooting. Mitchell AJ found Kiel to be an impressive and forthright witness, A whose evidence concerning the first appellant was beyond reproach.

[6] The first appellant testified in support of his alibi defence and called two witnesses. Both witnesses testified that on the date and at the time of the shooting, the first appellant was at a place other than the scene of the shooting. The trial Court rejected this alibi defence. It concluded that both appellants had been part of B the protesting group and were present at the scene of the shooting. Applying what is commonly referred to as the doctrine of common purpose, Mitchell AJ found both appellants guilty of one count of murder and two counts of attempted murder. C

[7] The trial Court sentenced each of the two appellants to eight years' imprisonment, suspended for a period of five years on certain conditions. Both appellants were granted leave to appeal against their conviction and the State leave to appeal against the sentences.

[8] In May 2002, the SCA heard both appeals. The majority of the SCA (per Lewis AJA and Olivier JA concurring) dismissed the D appeal against the convictions and upheld the appeal of the State against the sentences. The SCA ordered that each of the sentences imposed by the High Court be replaced by a sentence of 15 years' imprisonment. In a separate judgment, Navsa JA concurred in some respects with and dissented in others from the majority judgment. E

[9] Thereafter, the appellants made an application in terms of Rule 20 for special leave to appeal to this Court against the judgment and order of the SCA. This Court granted leave to appeal and issued directions calling for argument on two constitutional issues. Firstly, F in the case of both appellants, whether the SCA failed to comply with its duty in terms of s 39(2) [4] of the Constitution to develop and apply the common-law doctrine of common purpose so as to bring it in line with the constitutional rights to dignity, [5] freedom and security of the person [6] and the right to be presumed innocent. [7] Secondly, whether the SCA erred in G drawing a negative inference from the first appellant's failure to disclose an alibi defence prior to trial, in violation of his right to silence as contained in the Constitution. [8]

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The High Court A

[10] The trial Court was persuaded that the State had made out a proper case to warrant a conviction of both appellants based on the common-law doctrine of common purpose as laid down in S v Mgedezi and Others. [9] In that regard the trial Court held that:

'(T)he events of that afternoon took place in a sequence which commenced with the gathering at the Raven's home. The evidence shows B that some of those persons were armed and that there was no apparent attempt to conceal this from others in the group. The intent was to confront and intimidate persons alleged to be drug dealers. In these circumstances it can hardly be said that any member of the group did not appreciate the possibility that violence could erupt and persons could be killed by the use of the group's armaments. By participating in the further activities of the group, each member signified his C acceptance of that possibility. Such possibility became a reality when the shooting took place. There is no doubt . . . that the shots which killed Crystal and wounded Riaan and Mr September came from . . . the group of which (the first appellant) and (the second appellant) were part.' D

Later in the judgment the trial Court observed that:

'They were present on the scene; they were aware that the shooting was taking place; they were throughout making common cause with the group, including the gunman, and they acted in association with him - (the first appellant) by standing guard and [the second appellant] by collecting the cartridge cases . . . they had the requisite intention, albeit by way of dolus E eventualis, to commit murder . . . .'

[11] The first appellant denied having been present at the scene of the shooting. In support of his alibi defence, the first appellant testified that at approximately 13:00 on the day of the shooting he travelled by taxi from Ocean View to Fish Hoek train station. The purpose of the trip was to visit his second wife, Ms F Faranaaz Jacobs, in Parkwood Estate. In the taxi, the first appellant met with a fellow resident of Ocean View, Ms Brenda van Rooy. He and Ms Van Rooy took the 15:10 train to Wynberg. On arrival in Wynberg, the first appellant went to the local mosque where he led the afternoon G prayers. On his version, the first appellant spent the rest of the afternoon and evening with his second wife. He returned to Ocean View only on the following day. In their evidence, Ms Van Rooy and Ms Jacobs corroborated the version offered by the first appellant.

[12] Mitchell AJ rejected as untrustworthy the alibi evidence put up by the first appellant and his two witnesses. The trial Court H took into account that both witnesses had claimed that they had not discussed their evidence with each other or with anybody else; that Ms Van Rooy was informed one month and Ms Jacobs, one week before the trial that they had to testify about events which had occurred nearly two years earlier and that these witnesses remembered with remarkable detail and accuracy the occurrences of the day in question. Mitchell AJ I concluded that the close correlation between the evidence of the two witnesses and of the first appellant had cast doubt on its credibility. J

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[13] The trial Court found that the evidence of the State witness, Kiel, placing the first appellant on the scene of the shooting A was satisfactory and adequate to secure a conviction against first appellant. It rejected the first appellant's claim that he chose to disclose his alibi defence only during his trial and not at any time after his arrest. The trial Court reasoned that the first appellant was a man of considerable stature within the Ocean View community. He was B the assistant Imam at the local mosque. He was arrested one month after the shooting incident and spent nearly a week in custody before he was granted bail. According to his second wife, the community had known of his arrest and that it concerned the shooting incident in which a young child had been killed. To the first appellant and his second wife these C unfounded accusations should have amounted to an obvious error. The trial Court rejected the alibi as...