S v Tyebela
Jurisdiction | South Africa |
Judge | Botha JA, Hefer JA, Milne JA |
Judgment Date | 17 November 1988 |
Citation | 1989 (2) SA 22 (A) |
Hearing Date | 04 November 1988 |
Court | Appellate Division |
Milne JA:
The appellant and his co-accused, Zengisile Mayekiso, G were charged before Kruger AJ and assessors in the Graaff-Reinet Circuit Court with the murder of one Aron Ketelo, it being alleged that this offence was committed in the district of Colesberg on 29 March 1986. They were also charged with contravening ss 2 and 36 of the Arms and Ammunition Act 75 of 1969, it being alleged that they were unlawfully in possession of a.303 firearm, nine rounds of. 303 ammunition and H one round of 7,62 mm ammunition.
Despite considerable pressure on the part of the trial Judge (to which I shall refer later), the appellant and Mayekiso, who were alleged in the indictment to be 20 and 15 years old respectively, declined to accept the services of pro deo counsel until after they had both I been convicted of murder and the appellant had been convicted of unlawful possession of ammunition. (The appellant was acquitted on the charge of unlawful possession of a firearm on the grounds of autrefois convict, and Mayekiso was acquitted on this charge on the ground that mens rea had not been proved against him, since it was not established that he knew that the appellant was not permitted to be in possession of J the firearm.)
Milne JA
A Pro deo counsel, who, at the request of the trial Judge, had been in attendance throughout the trial, then appeared for both the appellant and Mayekiso and adduced the evidence of the appellant solely on the question of his age. The evidence of the appellant's mother was also adduced for the same purpose.
The trial Judge then found, with regard to the appellant:
B 'Die bewyslas is nie gekwyt deur hom nie, die bewyslas op hom om te bewys dat hy onder die ouderdom van 18 is. Ek mag net byvoeg en hoewel ek geen bevinding hieroor maak nie, dat al was hy onder die ouderdom van 18, sou ek my diskresie teen hom uitgeoefen het',
C and found him guilty of '... moord sonder versagtende omstandighede'. I interpose here that Kruger AJ, when giving judgment on the application for leave to appeal said, without any apparent realisation that he was contradicting himself, that '(t)he onus is on the State to prove the age which in my view the State did satisfactorily by producing an identity document'.
D He found extenuating circumstances in the case of Mayekiso and sentenced him to 12 1/2 years' imprisonment. The appellant was sentenced to death on the murder charge and to six months' imprisonment in respect of his unlawful possession of ammunition, it being ordered that such sentence was to come into operation only if the death sentence were not E carried out and to run concurrently with any sentence imposed in place of the death sentence.
An application for leave to appeal to this Court was made on grounds which may be briefly summarised as follows:
the discrepancies between the versions of the State witnesses were such that the Court should have found that the version of the F appellant might reasonably be true and that on that version he was not guilty of any offence; and
the trial Judge had descended into the arena and had so conducted himself that, in effect, the appellant had not had a fair trial.
This application was refused by the trial Judge, but leave to G appeal against the convictions and sentences was granted on petition to the Chief Justice.
In order to evaluate the submissions advanced in this Court in support of the above-mentioned grounds of appeal it is necessary to set out the evidence fairly fully.
H The evidence of the district surgeon, Dr Jacobs, established that the deceased had died as a result of a bullet wound, the bullet having entered the body of the deceased in the space between the sixth and seventh ribs and travelled through the left lung and diaphragm into the abdominal cavity. The bullet was not recovered. When asked to demonstrate the path of the bullet Dr Jacobs said:
I 'Wel, die koeël is hier in, nè, afwaarts deur die linkerkant van hierdie spier wat tussen die borskas en die abdomen is. Dit is 'n diafragma wat so sit, daardeur en die koeel was waarskynlik in die abdominale holte, maar ek het dit nie gevind nie, maar daar was nie 'n uitgangswond nie.'
Although the trial Judge did not, as he should have done, record J what the witness was demonstrating it was common cause that Dr Jacobs had
Milne JA
A demonstrated that the bullet entered the back of the deceased and indeed the trial Court accepted that this was so. The importance of this will appear later.
It was also established that blood droplets of the same blood group as that of the deceased were found on the corrugated iron threshold of the outhouse of Jeffrey Twala in which the State witnesses alleged B the deceased had been shot.
The State adduced the evidence of Nkululeko George, Johnson Singape, Novellake Jas and Linda Twala, all of whom purported to give eye-witness evidence of the events on the night when the deceased met his death. George, Novellake and Linda were all 17 years old at the time of the trial and Singape 14 years old. The evidence was also led of C Linda Twala's brother, Samson Twala, with the object of establishing that the appellant had had possession of the firearm, exh 1, which consisted of a.303 rifle with the barrel shortened, portion of the barrel having been sawn off crookedly. The evidence of Warrant Officer Du Plessis was led with regard to the finding of the blood on the piece D of corrugated iron already referred to. Du Plessis also testified that he visited the home of the appellant frequently between March 31, when the death of the deceased was reported, and April 18, but could not find the appellant there. The evidence of Constable Burleigh and Warrant Officer Sauerman was led to the effect that the body of the deceased was E found in the veld in long grass outside the residential area of Colesberg on 31 March 1986. Sauerman also testified that on 18 April 1986 Samson Twala brought him the sawn-off rifle exh 1; the butt was broken, the barrel had been shortened and he removed eight live rounds of.303 bullets from the magazine of exh 1; the firearm was given back to Twala and he was told to take it 'back' to the appellant (it being F Twala's evidence that the appellant had given it to him and Sauerman's evidence that Twala had told him of this). He and Constable Burleigh accompanied Twala to a house in the Black residential area at Colesburg. Twala went into the house with the firearm and came out without it. He and Constable Burleigh then went into the house and on some blankets, G which constituted a bed on the floor, he found exh 1. He searched the pockets of the appellant and found one live round of.308 ammunition in a pocket of the appellant..308 ammunition would not fit a.303 weapon but would fit a 7,62 mm R1 rifle. Sauerman also said that he knew of a group called the 'Rastas' who were adherents of a singer called Bob Marley, plaited their hair, wore a certain kind of clothing and were teetotalers. 'Rastas' or 'Amarasta' is no doubt an abbreviation H of 'Rastafarian' which is defined as a '(member) of an original Jamaican sect regarding Blacks as a chosen people' (Concise Oxford Dictionary 7th ed).
The relevance of this is that George said that he and the appellant and Mayekiso were previously all 'Rastas', but that the appellant and Mayekiso no longer associated with the 'Rastas' but called I themselves 'The A-Team'. The appellant (and Mayekiso, eventually) agreed that they had been 'Rastas'. This dissociation was a possible source of friction between the State witnesses George and Singape on the one hand, and the appellant and Mayekiso on the other.
The version of the State witness Nkululeko George was to the J following effect: On the night of 29 March 1986 at about 8 pm he, George, and the
Milne JA
A deceased were sitting in the outbuilding (referred to in the record as a 'pausie' or 'posie') of Jeffrey Twala, when the appellant and Mayekiso and Johnson Singape arrived. The appellant then said that George and the deceased were 'impimpis' ie police informers. The appellant produced a firearm and wanted to give it to Johnson Singape but he refused it and the appellant then gave it to Mayekiso after having first cocked it. B The appellant told Mayekiso to shoot the deceased, which he did. The paraffin lamp in the room went out. George ran towards the door, the appellant grabbed hold of him and George then wriggled out of his shirt, escaped and ran away. While he was running away he heard four shots. He ran away to 'die berg' where he slept the night and he reported C the matter to the police the following day. It is thus the effect of George's evidence that there were five persons in the 'posie' at the time of the shooting.
Evidence along similar lines was given by Johnson Singape. He said, however, that the appellant's 'vrymeisie' and Linda were also present, making a total of seven persons in all. He added that George had fled, pursued by the appellant and Mayekiso. They then returned and told D him, Johnson Singape, that he had to help them to carry the deceased. While they were carrying the deceased away, a car arrived on the scene, its lights fell on them and they fled. Some point was made by the appellant in cross-examining Singape of the discrepancy between the evidence of George and the evidence of Singape as to the number of E persons present in the 'posie', and immediately after Singape had testified the trial Judge took a somewhat unusual step. He recalled George and asked him whether there were five people present at Joe Twala's 'posie' on the evening in question. I shall return to this aspect of the case at a later stage.
The evidence of Novellake Jas was, in some respects, the same as that of George and Singape but, as will appear later, it differed in F some respects. Her last word on the number of persons present in the...
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