S v Chabalala (CA 39/2006) [2006] ZANWHC 44 (15 June 2006)

CASE NO. CA 39/2006

IN

THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

In the matter between:

ISAAC

CHABALALA APPELLANT

and

THE

STATE RESPONDENT

___________________

JUDGMENT

MOGOENG JP.

INTRODUCTION

[1] The Appellant, who acts on his own behalf in this appeal, was charged and convicted of (i) murder; (ii) robbery; (iii) the unlawful possession of a firearm; as well as (iv) the unlawful possession of ammunition. He was sentenced to undergo life imprisonment, 10 years imprisonment, 3 years imprisonment and 1 year imprisonment for the above counts, respectively.

[2] The Court a quo recommended that the Appellant is not to be considered for parole until he had served an effective term of 30 years imprisonment.

[3] The Appellant applied for leave to appeal against the convictions and sentences. Leave to appeal against the convictions was granted. As for the sentences, leave was confined to the recommendation in paragraph 2 above. This then is an appeal against the convictions and sentences. The factual background follows below.

BACKGROUND

[4] It is common cause or undisputed that:

on 12 February 1999 and at or near Temba, the deceased in this matter, Mr Dede Joel Nkomo, was driving a red Toyota Venture with Registration No. CFS 490 NW, valued at about R44 000.00 and that he had a Nokia cellular phone in his possession;

a firearm, a 9mm Norinco Model 213 pistol, whose numbers were scratched out, was used to kill the deceased and to deprive him of the Venture;

there was ammunition in the said firearm; and

the Appellant did not have a licence to possess both the firearm and the ammunition mentioned above.

The only point in dispute is really whether or not the Appellant was present when the offences, mentioned in paragraph 1 above, were committed and whether he was involved in their commission.

[5] Initially, the Appellant and Mr Phillip Chabangu were charged of the commission of the above offences together. Mr Phillip Chabangu tendered a plea of guilty and was accordingly convicted and sentenced to various terms of imprisonment, including life imprisonment. He subsequently agreed to testify against the Appellant as a State witness. The essence of the evidence he gave appears below.

[6] He and the Appellant had been close friends for years. They both resided along the same street in Temba. In the morning of 11 February 1999 he and the Appellant went to deliver a stolen Toyota Venture Station-wagon to their buyer at Rubber Ridge near Tembisa.

It was then that their buyer placed an order for another stolen Venture. Mr Chabangu and the Appellant decided to target a Venture the next morning. As a result they boarded a red Venture with the aforementioned registration numbers, which was being operated as a taxi, pretending to be mere passengers. Mr Chabangu sat directly behind the deceased whereas the Appellant sat next to Mr Chabangu but on the left-hand side.

[7] Shortly thereafter, Mr Chabangu strangled the deceased with a piece of wire that they had cut from a nearby fence. The deceased struggled to free himself. It was then that the Appellant used the firearm that he had to fire one shot at the deceased. That shot turned out to be fatal. The vehicle came to a standstill at some stage. After the deceased had been shot at, he alighted from the Venture. There were bloodstains in the Venture.

[8] The Appellant drove the vehicle away. Mr Chabangu sat on the front passenger side. At some stage the vehicle stalled on its own. Some fuses were cut to disconnect the alarm and the immobilizer system, which appeared to be the cause of the stalling, whereafter the vehicle moved. A few hundred metres later the engine stalled again. Further fuses were cut in the engine compartment and the vehicle moved again.

[9] What turned out to be a police vehicle emerged from behind. It was being driven at high speed. As the vehicle drew closer, Mr Chabangu and the Appellant alighted from the Venture and fled. At the time, the Appellant had the Nokia cellular phone in his possession, which he had earlier used to confirm to the buyer that they were on their way with the Venture. He dropped it on the ground when the police got closer to him. Mr Chabangu had the firearm in his possession when he fled. Several minutes later, they were both arrested.

[10] The version of the Appellant is that it is true that at some stage in the morning of 12 February 1999 he was with his friend, Mr Chabangu, in the aforementioned Venture. However, Mr Chabangu was already in possession of the Venture when he (Mr Chabangu) approached him and asked him to drive around with him. He told him that the Venture belonged to one of his uncles. I may add that when this was put to Mr Chabangu under cross-examination he denied it and said that the Appellant knew that none of his uncles had a Venture. The circumstances surrounding the alleged planning, the hijacking and the shooting of the deceased that Mr Chabangu testified to, are not known to him. There were no bloodstains in the vehicle.

[11] The Appellant also sought to demonstrate that Mr Chabangu was not telling the truth about how the deceased met his death. Two lines of attack were advanced in this connection. The first is that no marks or lacerations attributable to a wire, allegedly tied around the deceased’s neck by Mr Chabangu, were noticed by the pathologist. The second criticism is that the location of the entry and exit gunshot wounds on the deceased’s body suggests that the Appellant would not have been able to inflict those kind of wounds. This is based on the assumption that the deceased had assumed the position of a person who was driving the vehicle and that the Appellant did not change his sitting position at the rear seat when the Appellant fired the shot. He went on to say that Mr Chabangu, who is a good friend of his, must have falsely incriminated him (the Appellant) because he misses his good company in prison. I turn now to analyse the evidence.

ANALYSIS

[12] The presiding Judge in the Court a quo made favourable credibility findings about the State witnesses. She was, however, not impressed by the Appellant as a witness. Having examined the evidence tendered by the various witnesses and considered counsels’ submissions, I am also satisfied that there exists no basis on which to fault the trial Judge’s credibility findings as well as her assessment of the evidence as a whole.

[13] It is important to take the following facts into account in considering why the Court a quo found the evidence given by Mr Chabangu, to be probable as opposed to that given by the Appellant.

13.1 Mr Chabangu pleaded guilty to all the counts and was convicted on the strength of his own plea of guilty.

13.2 When he testified in the Court a quo, he had already been convicted and sentenced to undergo, among other sentences, life imprisonment.

13.3 The question of him hoping that by incriminating the Appellant he would be dealt with leniently does not arise, contrary to suggestions to that effect by the Appellant in his submissions to this Court. This is because, the worst that could possibly happen to a criminal in his position had already happened. He had already been convicted and sentenced. I find no merit in the Appellant’s submission on appeal that Mr Chabangu lied about his involvement hoping that in return, he would be released on parole a lot earlier than it would otherwise have been the case.

13.4 When he testified, he not only laid bare the criminal disposition of the Appellant but his own (Mr Chabangu’s) criminal history as well. It is also important to remember that evidence to this effect, about previous hijackings, was provoked by the Appellant’s own counsel who asked Mr Chabangu questions which were designed to elicit pertinent answers about the Appellant’s track-record as a criminal. Mr Chabangu’s evidence of the two charges of robbery pending against the Appellant at the time of the trial, was confirmed by the Appellant although he said that they were later withdrawn.

13.5 He and the Appellant were in the red Venture when the police caught up with them.

13.6 They both fled from the police as one would expect of people who knew that they had done something wrong which would give the police a reason to arrest them.

13.7 As they were fleeing, the Appellant was carrying the cellular phone that belonged to the deceased and later dropped it. No sound explanation was advanced as to why he had to take it out of the vehicle since it was not his, and especially why he dropped it when the policeman was in hot pursuit since, according to his knowledge it had no connection to any crime.

13.8 The Appellant told the policeman that the deceased was shot at by Mr Chabangu. He could not have known this and stated it as a fact, unless he had personal knowledge of the shooting incident which led to the death of a person and as a result of which the police were chasing after them. If he was ignorant of what had happened, and was indeed confident about his innocence, he should have stayed at the vehicle. He would then have expressed his innocence to the police. It is not clear why, a law-abiding citizen in the Appellant’s position, had to flee.

13.9 Mr Chabangu admitted that he was in possession of the firearm when they fled from the vehicle, that he tried to hide it with bricks and that he is the one who eventually gave it to the police.

[14] I repeat that I am satisfied that the credibility findings made by the Court a quo and the assessment of the evidence are correct. I arrive at this conclusion, mindful of the shortcomings in the evidence of the State. There is, for instance, a contradiction between the evidence of Mr Chabangu and that of the policeman who arrested them. Mr Chabangu said that the Appellant was the driver of the vehicle when they stopped and fled. Both the policeman and the Appellant in fact said that Mr Chabangu was the driver. Apart from this aberration, and any other shortcoming in the State evidence, the evidence of Mr Chabangu is indeed satisfactory in all material respects. I, therefore, have no hesitation in confirming all the convictions. I turn now to deal with the sentences imposed.

[15] It is not necessary to deal with the sentences in detail. Suffice it to say that this was a brutal and unprovoked murder. The robbery was premeditated. The Appellant is not remorseful at all. The money was needed so that bail could be paid for one of his friends. Notwithstanding the age of the Appellant, I can find no reason to interfere with the sentences imposed.

[16] The only aspect of the sentence that calls for attention is the directive or the recommendation made by the trial Judge to the effect that the Appellant is not to be considered for parole until he has served an effective term of 30 years imprisonment. In fact, as I said above, it was for this very reason that the Court a quo granted leave to appeal against the sentences. This recommendation was dealt with in a few cases and there does not appear to be finality on the matter.

[17] One of the earlier cases that I could find where this issue is dealt with is S v Tcoeib 1991 (2) SACR 627 (Nm) at 636b–d where O’Linn J (as he then was) imposed life imprisonment in respect of two counts of murder and further stated that: “I recommend to the Executive that the accused is not released on parole or probation before the lapse of at least 18 years’ imprisonment calculated from date of sentence”. The Namibia Supreme Court, per Mahomed CJ, in S v Tcoeib 1996 (1) SACR 390 (NmS) at 402a–e declined to express itself on the desirability and validity of such a recommendation.

[18] Subsequently, and with reference to O’Linn J’s judgment, van der Westhuizen J addressed this issue in the matter of S v Sidyno 2001 (2) SACR 613(T). He imposed life imprisonment for each of the 7 counts of murder and made a recommendation for a non-parole period in the following terms:

“Daar word aanbeveel dat die beskuldigde ʼn minimum van 40 jaar gevangenisstraf uitdien, voordat vrylating of parool oorweeg word.”

The rationale behind this recommendation was that a Court should not be shy to do what is regarded as necessary, simply because the existing Departmental policy does not seem to make provision for it. The Court went on to say that there appeared to be nothing wrong with making a recommendation that a specified minimum period be served prior to an accused being considered for parole. It was held that indications were that these recommendations were taken into account by the prison authorities. His Lordship said that the recommendation should, however, only be made in exceptional cases where it is justified by, for example, the number and seriousness of the murders, the accused’s strong image of cold-bloodedness, his lying and total absence of any remorse and his unlikely rehabilitation. The Supreme Court of Appeal also had occasion to express itself on this issue as we see below.

[19] In S v Bull & Another; S v ChavulLa & Others 2001 (2) SACR 681 (SCA) at 695c–696b Viviera ADCJ gave a résumé of the Departmental policy and the legislations already passed with regard to parole in the following terms:

“[23] . . . In terms of s 65(5) and (6) of the Correctional Services Act 8 of 1959 a prisoner sentenced to life imprisonment may be released on parole by the Minister upon the recommendation of the National Advisory Committee established under that Act. The recommendation is made after considering a report by the parole board and having regard to the interests of the community. No minimum period is laid down before a prisoner serving a life sentence can be released on parole.

Subsection (5) and (6) of s 65 were amended by the Parole and Correctional Supervision Amendment Act 87 of 1997 but none of the provisions of this Act has yet come into force. Section 9(d)(v) of the latter Act provides that a prisoner serving a life sentence shall not be placed on parole before serving at least 25 years of the sentence save that parole may be granted at the age of 65 years after serving at least 15 years. The new Correctional Services Act 111 of 1998, which has not yet come into operation, contains a similar provision (s 73(6)(b)(iv))). In terms of s 73(5)(a)(ii) of this Act it is left to the court to determine when a prisoner sentenced to life imprisonment may be released on parole. The last-mentioned Act has not yet come into force. It is, as confirmed by counsel for the State, presently the policy of the Department of Correctional Services that a prisoner serving a sentence of life imprisonment will be considered for parole after serving at least 20 years of the sentence, or on reaching the age of 65 years and after serving at least 15 years of the sentence (see the Department’s release policy published in Government Gazette No 17386 of 30 August 196 by Notice 1222 of 1996).

[24] Section 65(4)(a) of the Correctional Services Act 8 of 1959 provides that a prisoner serving a determinate sentence shall not be considered for parole before having served half of the sentence, save that the date may be brought forward by the number of credits earned. Section 65(4) was amended by s 9 of the Parole and Correctional Supervision Amendment Act 87 of 1997. The new provision to be substituted for s 65(4)(a) also requires a prisoner for whom a non-parole period was not fixed by the sentencing court to serve half the sentence before being considered for parole, save that no prisoner shall serve more than 25 years before being considered for placement on parole. Section 73(6)(a) of the Correctional Services Act 111 of 1998 provides that all prisoners must be considered for parole after they have served 25 years of their sentences. This does not, however, apply to a sentence imposed under s 286B of the Act.

[25] To sum up, at the time of the imposition of the sentence in the present cases, a prisoner sentenced to life imprisonment became eligible for release on parole after serving 20 years of the sentence and a prisoner sentenced to a determinate sentence had to serve half the sentence before parole could be considered. This is still the present position.” (My emphasis)

[20] In S v Matlala 2003 (1) SACR 80 (SCA) the Appellant was sentenced to undergo 40 years imprisonment for murder, 15 years imprisonment for robbery with aggravating circumstances, 3 years imprisonment for the unlawful possession of a firearm and 1 year imprisonment for the unlawful possession of ammunition. Having passed sentence, the learned trial Judge (Grobbelaar J) recommended that the Appellant not be considered for parole before he had served 30 years of the effective sentence. Howie JA, as he then was, said the following at 82g–83a:

“Unless there is a particular purpose in having regard to the pre-parole portion of an imprisonment sentence (as, for example, in S v Bull and Another; S v Chavulla and Others 2001 (2) SACR 681 (SCA)) the Court must disregard what might or might not be decided by the administrative authorities as to parole. The court has no control over that. S v S 1987 (2) SA 307 (A) at 313H; S v Mhlakaza and Another 1997 (1) SACR 515 (SCA) at 521d-h. In the latter passage there is the important statement that the function of the sentence court is to determine the maximum term of imprisonment the convicted person may serve. In other words, the court imposes what it intends should be served and it imposes that on an assessment of all the relevant factors before it. It does not grade the duration of its sentences by reference to their conceivable pre-parole components but by reference to the fixed and finite maximum terms it considers appropriate, without any regard to possible parole.”

The Supreme Court of Appeal was apparently not referred to any of the above decisions apart from S v Bull supra and did not, therefore, deal with the reasoning behind the recommendation. In the absence of a legislative provision to the contrary, Matlala was binding at the time when it was decided and would still be binding. It appears though, that s 73 of the Correctional Services Act 111 of 1998, which has since come into operation, may well render Matlala distinguishable. The executive has caused Parliament to pass legislation which pertinently makes provision for the Courts to recommend a non-parole period in suitable cases.

[21] The overall deduction capable of being made from the above authorities is that:

the prison authorities appreciate some guidance or indication from the Judges in the serious crimes which attract life imprisonment, regarding when in the particular Judge’s view, it would be desirable to begin to consider the prisoner for parole;

the prison authorities have found so much value in those recommendations of non-parole periods that they have made a policy to this effect and have even asked Parliament to make provision for this in s 73 of Act 111 of 1998;

the executive, in the form of the Department of Correctional Services has, for its own benefit and for the benefit of society, permitted the Judiciary to encroach in its terrain by making recommendations of a non-parole period in very serious crimes; and

such recommendations, as van der Westhuizen J correctly said in the Sidyno case supra, are to be made sparingly.

[22] When this matter was heard by this Court, the Appellant submitted that the recommendation made by the Court a quo to the prison authorities should not have been made in view of the following provisions of s 136 of the Correctional Services Act 111 of 1998:

“ (3)(a) Any prisoner serving a sentence of life imprisonment immediately before the commencement of Chapters IV, VI and VII is entitled to be considered for day parole and parole after he or she has serviced 20 years of the sentence.”

Sentence was imposed on the Appellant on 03 April 2001. At the time s 136(3)(a) of Act 111 of 1998, of which the date of commencement is 19 February 1999, was operative. Section 73, under chapter VII, which could have allowed the trial Court to make a recommendation to the executive that the Appellant is not to be considered for parole until he had served 30 years imprisonment, only came into operation on 01 October 2004. The Appellant was, as envisaged by s 136(3)(a), a prisoner serving a sentence of life imprisonment immediately before the commencement of Chapter VII and he is entitled to be considered for parole after serving 20 years of the sentence.

[23] When the trial Court and the Court in the Sidyno case supra made the recommendation of a non-parole period in excess of 20 years imprisonment, to wit 30 years and 40 years respectively, that was not only against the prison policy on parole set out in paragraph [25] of the S v Bull case, but it was also in conflict with the provisions of s 136(3)(a) of Act 111 of 1998. The non-parole period of 30 years imprisonment, therefore, stands to be set aside.

ORDER

[24] Accordingly, the convictions and sentences are confirmed. However, the recommendation that the Appellant is not to be considered for parole until he has served 30 years imprisonment is set aside.

______

M.T.R.

MOGOENG

JUDGE

PRESIDENT OF THE HIGH COURT

I agree

____

R.D.

HENDRICKS

JUDGE

OF THE HIGH COURT

B.C.

MOLWANTWA

ACTING

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 05 MAY 2006

DATE OF JUDGMENT : 15 JUNE 2006

COUNSEL FOR APPELLANT : SELF

COUNSEL FOR RESPONDENT : ADV G.S. MAEMA