S v Thebus and Another

• Jurisdiction: South Africa

S v Thebus and Another
2002 (2) SACR 566 (SCA)

2002 (2) SACR p566

Citation	2002 (2) SACR 566 (SCA)
Case No	338/2001
Court	Supreme Court of Appeal
Judge	Olivier JA, Navsa JA and Lewis AJA
Heard	May 9, 2002
Judgment	August 30, 2002
Counsel	J van der Berg for the appellants.; A D R Stephen for the State.

Flynote : Sleutelwoorde D

Evidence — Of identification — Whether evidence sufficient to convict — Witness positively identifying four accused — Two accused having plausible alibis — Evidence identifying one accused, who witness knew well, as participant in crimes reliable and E compelling — That he may have been mistaken in identifying co-accused as participants not detracting from his clear identification of other two accused — Witness's evidence supported by fabricated alibi of appellants — Accused correctly convicted.

Evidence — Of alibi — Assessment of — Accused's alibi raised only at trial, some two years after incident — Not reasonably possible F that his corroborating witnesses would not come forward immediately upon his arrest, or at least some short time later, and advise police that he had been with them at crucial times — Equally not possible that accused himself, having so cogent an alibi when arrested and charged, did not advise police or prosecution — Only inference to be drawn from his failure to advise police, and from other witnesses' failure to do G so, is that alibi had no truth in it at all.

Sentence — Prescribed sentences — Minimum sentence — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 — 'Substantial and compelling circumstances' — Trial Court taking in account, inter alia, that police inaction and community H apathy, whilst not excusing group's behaviour, at least explaining it — Frustration allegedly felt by community, where vigilante shooting taking place, at inability of police to deal with gangsterism and drug-dealing is factor that should not be regarded as mitigating — It can also not be accepted entire community shouldered responsibility for I tragic events that occurred when vigilante group descended on area — Conduct of group would have added to fear felt generally by people living in area — Such circumstance not substantial and compelling.

Sentence — Prescribed sentences — Minimum sentence — Imposition of in terms of Criminal Law Amendment Act 105 of 1997 — 'Substantial and compelling circumstances' — Killing of deceased and injuring of others not J

2002 (2) SACR p567

premeditated — Deceased and injured caught in middle of shooting by vigilante A group — Accused, although guilty by virtue of being part of group and having common purpose, not themselves firing shots — They did not have direct intention to kill or injure but were guilty by virtue of dolus eventualis — Both first offenders and both previously regarded as respectable members of their community — Unjust to impose sentence of life imprisonment on accused B given that their participation in commission of crimes charged had been limited — Substantial and compelling circumstances present justifying lesser sentence than life imprisonment — However, accuseds' conduct was such as to warrant lengthy sentence of imprisonment.

Headnote : Kopnota

During a shoot out between a vigilante group and alleged drug C dealers, passers-by had been shot and a seven-year-old girl fatally injured. The appellants had been identified at the scene by a witness, K, who knew the first appellant well and who recognised the second appellant based on his physical features. Two other accused had been tried with the appellants and also identified by K, but they had been further away from him than the appellants. All four of the accused in the Court a quo had had alibis. The Court a quo D rejected the alibis of the appellants and accepted those of their co-accused. In the case of the co-accused, they had raised their alibis at an early stage, in the case of one co-accused, upon being arrested. In deciding not to impose the prescribed minimum sentence, the Court a quo had, inter alia, taken into account that police inaction and community apathy, whilst not excusing the group's behaviour, at least explained it. The accused had been sentenced to E eight years' imprisonment, conditionally suspended.

Held (per Lewis AJA, Olivier JA concurring; Navsa JA dissenting), that it was telling that the first appellant's version had been raised only at the trial, some two years after the incident. It did not seem reasonably possible that his corroborating witnesses would not come forward immediately upon his arrest, or at least some F short time later, and advise the police investigating the crimes, which had shaken the community as a whole, that he had been with them at the crucial times. It was equally not possible that the first appellant himself, having so cogent an alibi when arrested and charged, did not advise the police or the prosecution that this was the case. The only inference that could be drawn from his failure to advise the police, G and from the other witnesses' failure to do so, was that the alibi had no truth in it at all. (Paragraph [13] of Lewis AJA's judgment at 583f - h.)

Held, therefore, that the evidence of K identifying the first appellant as a participant in the crimes of murder and attempted murder was reliable and compelling. That he may have been mistaken in identifying the co-accused as participants in the shooting H spree did not detract from his clear identification of the other two accused. K's evidence was supported, moreover, by the patent fabrication of an alibi by the first appellant. Accordingly there was no reasonable doubt that the first appellant had been correctly convicted by the trial Court. (Paragraph [14] of Lewis AJA's judgment at 583h - i.)

Held, further (per Navsa JA, Olivier JA and Lewis AJA concurring), that on all the evidence before the Court a I quo the second appellant had been correctly convicted. (Paragraph [27] of Navsa JA's judgment at 577h - 578d.)

Held, further (per Lewis AJA, Olivier JA and Navsa JA concurring), that the frustration allegedly felt by the community of the area at the inability of the police to deal with gangsterism and drug-dealing was a factor that should not be regarded as mitigating. It could also not be accepted that the entire J

2002 (2) SACR p568

community shouldered responsibility for the tragic events that occurred A when the vigilante group descended on the area. Indeed, the conduct of the group would have added to the fear felt generally by people living in the area. (Paragraph [21] of Lewis AJA's judgment at 585e - g.)

Held, further (per Lewis AJA, Olivier JA concurring; Navsa JA dissenting), as to sentence, that the killing of the deceased and the injuring of the others had not been premeditated. B They had been caught in the middle of the shooting by the vigilante group. The appellants, although guilty by virtue of being part of the group and having a common purpose, had not themselves fired the shots. They did not have the direct intention to kill or injure but were guilty by virtue of dolus eventualis. Both were first offenders, and both had previously been regarded as respectable members of their community. (However, people who chose to take the law into C their own hands and to participate in groups that deliberately damaged property and caused severe injury and even death in the process could hardly be described as respectable members of society.) (Paragraph [20] of Lewis AJA's judgment at 585c - e.)

Held, accordingly, that it would be unjust to impose a sentence of life imprisonment on either of the appellants, given that D their participation in the commission of the crimes charged had been limited. That the appellants were first offenders, were employed and have families to support are factors that must also be taken into account. Therefore, there were substantial and compelling circumstances that justified a lesser sentence than life imprisonment. However, the appellants' conduct was such as to warrant a lengthy sentence of E imprisonment. (Paragraphs [22] and [23] of Lewis AJA's judgment at 585g - 586a.)

Held, accordingly, that a sentence of imprisonment of 15 years for each appellant was appropriate.

The decision in the Cape Provincial Division in S v Thebus and Others confirmed as regards conviction, but altered with respect to sentence.

Cases cited

R v Hlongwane 1959 (3) SA 337 (A): considered F

R v Shekelele 1953 (1) SA 636 (T): considered

R v T 1958 (2) SA 676 (A): considered

S v Dodo 2001 (1) SACR 594 (CC) (2001 (3) SA 382; 2001 (5) BCLR 423): applied G

S v Malgas 2001 (1) SACR 469 (SCA) (2001 (2) SA 1222): applied

S v Mehlape 1963 (2) SA 29 (A): considered

S v Mgedezi 1989 (1) SA 687 (A): referred to

S v Mtsweni 1985 (1) SA 590 (A): considered.

Case Information

Appeal from a decision in the Cape Provincial Division H (Mitchell AJ). The facts appear from the reasons for judgment.

J Van der Berg for the appellants.

A D R Stephen for the State.

In addition to the authorities cited in the judgment of the Court, counsel for the parties referred to the following: I

Attorney-General, Venda v Marga 1992 (2) SACR 594 (V) at 606d - e

Municipal Council of Bulawayo v Bulawayo Waterworks Co Ltd 1915 AD 611

R v Garnsworthy 1923 WLD 17 at 19 - 20

R v Latimer 2001 SCC 1 J

2002 (2) SACR p569

R v Smith (1987) 34 CCC (3d) 97 A

R v Zikalala 1953 (2) SA 568 (A)

R v Zulu 1951 (1) SA 489 (N) at 494

S v Barnes 1990 (2) SACR 485 (N) at 491d

S v Francis 1991 (1) SACR 198 (A) at 204

S v Ivanisevic 1967 (4) SA 572 (A) at 575H

S v Jama 1989 (3) SA 427 (A) at 426G, 436H - I B

S v Khumalo 1984 (4) SA 684 (W)

S v Makwanyana 1995 (1) SA 391 (CC)

S v Memani 1990 (2) SACR 4 (TkA) at 8d

S v N 2000 (1) SACR 209 (W)

S v Ntuli 1975 (1) SA 529 (A) C

S...