THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

JUDGMENT

Reportable
Case Number 43/07

In the matter between

MVUSELELO PAKANE                                               1st Appellant
TAMSANQA SIGAGAYI                                              2nd Appellant
KHAYELIHLE MAHOGO                                             3rd Appellant

and

THE STATE                                                                 Respondent

Coram:                  MTHIYANE, MAYA JJA et HURT AJA

Date of hearing:    30 AUGUST 2007

Date of delivery:    28    SEPTEMBER 2007

Summary: Murder – defeating the ends of justice – A police officer killing the deceased
during a police patrol in the presence of his junior colleagues and subsequently concealing his
actions to evade detection – convicted of murder and defeating the ends of justice and
sentenced to 15 and eight year terms of imprisonment – his colleagues failing to report the
incident and consequently convicted of being accessories after the fact to murder and
sentenced each to eight years imprisonment – putative private defence raised by appellants
rejected by the trial court – no misdirection by the trial court – the convictions and sentences
confirmed on appeal.

Neutral citation: This judgment may be referred to as:
Pakane v The State [2007] SCA 134 (RSA)

MAYA JA

MAYA JA

[1] This appeal arises from events which occurred in the early hours of
13 December 1999 at Coffee Bay in the Eastern Cape. The appellants
were at the time police officers of varying ranks, stationed at a local
police station, Mapusi. At about 02h40, they were despatched in a police
van driven by Sergeant Sokuyeka to investigate a report of a shooting
incident near the backpackers’ hostel in the village. The second appellant,
then a sergeant, was the most senior officer in the group. Both his co-
appellants were constables. During their foot patrol in the vicinity of the
place where the alleged shooting occurred, the second and third
appellants fired a volley of shots. Shortly thereafter, Mr Louis Fourie, a
local resident (‘the deceased’) who, unbeknown to the appellants, had
been patrolling the area, was found dead with gunshot wounds, in the
nearby bushes. Several R4 and 9mm empty cartridges and a live bullet
were subsequently recovered by the police at the scene.

[2] Some three and a half years later, the appellants were arrested in
connection with the deceased’s death. They were subsequently arraigned
on charges of murder and of defeating the ends of justice. They denied
guilt. The court below (Miller J in the Mthatha High Court) convicted the
second appellant as charged. He was sentenced to 15 years imprisonment
for the murder and eight years for defeating the ends of justice which was
ordered to run concurrently with the 15 year sentence. His co-appellants
were convicted only of being accessories after the fact to murder and

were each sentenced to eight years imprisonment. They appeal against
their convictions and sentences with the leave of this court.

[3] The issues on appeal are whether the evidence supports the
convictions and the appropriateness of the sentences imposed on the
appellants.

[4] From the evidence adduced from several witnesses at the trial, the
following picture emerged. A Mr Lang, one of the deceased’s neighbours,
telephoned the police at 02h30 on the fateful morning to report that shots
had been fired by unknown people in the Lagoon Hotel area. He
requested police assistance. The appellants were roused from sleep in
their police barracks and hastily despatched to the scene accompanied by
another police van which conveyed their Station Commander, Captain
Booi, and Sergeant Ngxumza. In addition to the State issued R4 rifle with
serial number 806 295 A1 (‘rifle 295’) carried by the second appellant,
they were each armed with Z88 9mm pistols. The two vehicles separated
along the way as a strategy to close off all possible escape routes.

[5] According to the appellants, the only witnesses to the shooting
which subsequently occurred, they heard the sound of gunfire as they
approached their destination. To avoid an ambush, they decided to leave
their vehicle, which was not armoured, in Sokuyeka’s care some distance
away and proceeded on foot. They walked in a tight single file along the
southern edge of the tarmac road towards the Lagoon hotel, led by the
second appellant. It was dark and overcast. 15 to 20 minutes later, about
200m from where they left their vehicle, the second appellant reported to
his companions that he saw a figure carrying a big firearm standing in the
middle of the road, about 12 to 15 paces away. The third appellant

confirmed that he also saw the shadowy figure but the first appellant saw
nothing because of poor night vision.

[6] There are a various contradictory versions regarding the next steps
taken by the second appellant both in the confessions that he and the third
appellant made to magistrates (admitted in evidence in terms of s 220 of
the Criminal Procedure Act 51 of 1977 (the Act), albeit their subsequent
allegations of duress by the investigating officers) and their oral
testimony, a number of contrary versions having been put to the trial
court by the time the proceedings concluded. I will therefore confine
myself to the evidence which the second appellant gave in court. He
testified that having spotted the shadowy figure, he shouted a warning in
English and in isiXhosa that they were police officers and ordered it to
stop whereafter he fired warning shots with the rifle into the air. Seeing
no reaction from the figure, he repeated the same process. The first and
third appellants took cover in a ditch on the side of the road.

[7] When the second warning shot was fired, the figure turned to face
them and raised the firearm to a firing position. The second appellant shot
at it and continued firing even after it disappeared until his rifle jammed.
He attempted to clear the rifle without success. During this interval, the
third appellant emerged from his hiding spot and fired a shot with his
pistol towards the bushes across the road into which the figure had
disappeared. In the meantime, the second appellant had dropped to the
ground, drawn his pistol and fired shots in the same direction to
discourage any other would-be attackers.

[8] Thereafter, the appellants regrouped where they had left their
vehicle, without once crossing the road to the side where the figure had

disappeared, and, on the instruction of the second appellant, drove back to
the police station. There, the second appellant placed the rifle in the
strong room and booked out another R4 rifle with serial number 806 291
A1 (‘rifle 291’). They then returned to the scene and joined Lang and his
group and Captain Booi in the search for the deceased who had been
reported missing. He was subsequently found already dead, lying on his
back, by his night guard, Mr Beja, near the left edge of the road, at the
turnoff point towards the hotel. Members of the Serious and Violent
Crimes Unit (SVC ‘unit’) arrived from Mthatha and commenced
investigations.

[9] Medical evidence led by the State established that the deceased had
sustained two gunshot wounds (a) on the front left chest which lacerated
his lungs and aorta, ruptured the heart and fractured his ribs with an exit
on the right back chest and (b) on the right jaw into the mouth cavity.
There was also a superficial V-shaped laceration on the right shoulder
which the district surgeon (Dr Monahali) believed was probably caused
during his fall. She described the lacerated star-shaped face injury as a
contact wound inflicted from a distance of no more than 15cm away.
According to the specialist forensic pathologist, Professor Scholtz, the
special features of the wounds indicated that the one in the chest was
inflicted by a high velocity R4 rifle and that the one in the jaw was
inflicted at, close proximity, by a 9mm pistol. These views were also
endorsed by the ballistics expert called by the State, Inspector Dreyer.

[10]  The medical experts concluded that the chest wound was the
mortal one. The order in which the wounds were inflicted could not be
ascertained conclusively but Scholtz described the one in the face as
‘perimortem’ ie sustained at the most not long after death because there

was sufficient vital reaction in the tissues. The fate of the bullet which
caused the wound was unknown and the medical experts expressed a
view that it possibly remained lodged in the deceased’s skull or had
exited through his mouth cavity.

[11]  Inspector Mithi of the SVC unit was the initial investigating
officer of the case and one of the police officers who attended the scene
directly after the incident. He testified that when found, the deceased had
in his hands a torch and a big 12 bore protector firearm tied to his wrist.
He personally emptied the firearm which had its safety catch on. He
found bullets in its magazine and none in the chamber – a clear indication
that the firearm was not ready to be discharged. He stated that he
suspected from the onset that police may have been involved in the
shooting but his enquiries from those present met no response. In the
course of his investigations he requisitioned all the service firearms
belonging to Coffee Bay police station and sent those handed to him for
ballistics testing.
[12]  Two people were, at some stage, arrested in connection with the
matter and kept in custody for two years before they were released
without being charged. Investigations seem to have stalled thereafter and
no further progress appears to have been made towards solving the case
until December 2003, when it was reallocated to Inspector Coetzee of the
East London SVC unit. Investigations commenced afresh. A
reconstruction of the scene (made possible by the fact that the paint
markings of the original scene still remained visible on the road)
established amongst things that the most likely position from which some
of the cartridges found there were discharged, was on the same side of the
road from which the deceased’s body was recovered, just a few metres
behind the body.

[13] It is at this stage that it was discovered that two pages of the
occurrence book relating to events of 12 December 1999 (which would
have included entries of Lang’s distress call to the police station and the
appellants’ departure from the station in response to that call) had been
torn out and the relevant entries rewritten. In this regard, Ngxumza, who
was on duty when Lang called, testified for the State that on his departure
from the station, the second appellant merely took rifle 295 from the
other duty officer, Sgt Mjindi, without booking it out (a version which the
trial court correctly rejected having regard to the other relevant evidence).
When he and Captain Booi heard the gunfire after the party separated,
they looked for the appellants and followed their van to the station. Upon
their arrival there, the second appellant instructed him to book out rifle
291 on his behalf and to rewrite the entries preceding Lang’s call. It is
then that he noticed that two pages had been torn out of the occurrence
book, which was against procedure as they were required to correct
mistakes only by cancelling and initialling them.

[14] It further came to light that rifle 295 was never submitted for a
ballistics examination but that rifle 291 had instead been submitted and
tested negative, for obvious reasons. Coetzee duly sent rifle 295 for
ballistics testing and it was positively linked to some of the cartridges
recovered at the scene. The second appellant’s explanation for the
omission was that Mithi only demanded and was given firearms set out in
his own list which excluded rifle 295. He said that this rifle was kept
back, in any event, because it was an exhibit in another case. Mithi denied
this version on the basis that it was impossible for him, as an outsider
with no connection to Mapusi police station, to have drawn an inventory
of items of which he had no knowledge.

[15] Transcripts of the occurrence book relating to the R4 rifles show
that amongst the items handed over by the previous duty officer, Sgt
Kanyo, to Mjindi at shift change, when the latter reported for duty at
21h45 on 12 December 1999, was rifle 295, with 35 rounds of
ammunition. No mention is made of rifle 291. At 02h30 a record of
Lang’s call is made and at 02h40 the appellants are shown to depart to
investigate the complaint. 20 minutes later, at 02h55 the second appellant
books out rifle 291 with 35 rounds of ammunition which he returns at
08h30 still loaded with 35 rounds of ammunition. Rifle 295 is mentioned
again at the end of the shift, at 06h05, when it is handed over to the next
duty officer, with no ammunition.

[16]  The first and third appellants admitted their failure to report the
shooting incident but justified it on the basis that they were not obliged to
do so as their immediate superior, the second appellant, was present at the
scene and that it was the latter’s responsibility to report the matter to the
relevant authorities. The second appellant, on the other hand, alleged that
he had made an oral report at the scene to Inspector Voko who had since
died at the time of the trial.

[17]  It is against this factual background that the court below convicted
the appellants. The trial judge was favourably impressed by the State
witnesses and made adverse credibility findings against the appellants.
After a comprehensive and careful analysis of the evidence, he rejected
the defence version and concluded that the only reasonable inference1 that

1 In drawing such inferences, the learned judge correctly relied on the guidelines set out in R v Blom
1939 AD 188 at 202-203 where it was held:
‘(1)The inference sought to be drawn must be consistent with all the proved facts. If it is not, the
inference cannot be drawn.

could be drawn from the facts was that ‘[the second appellant] on seeing
a figure, over-reacted and immediately fired at it with the intent of killing
the target…’; that the appellants’ evidence that they never crossed the
road was false in the light of the contact wound which, on the
probabilities could only have been inflicted by one of them. In the learned
judge’s view, the wound marked ‘the beginning of a cover up of the
shooting by [the second appellant]’ upon ascertaining the deceased’s
identity and realising his mistake. He concluded that although there was
no direct evidence as to who inflicted the contact wound, it could safely
be inferred from all the facts that the appellants were together in close
proximity when it was inflicted and that they all left the scene ‘aware that
the deceased was shot in the face at the closest of range’.

[18]  The main contentions advanced on the appellants’ behalf in attack
of the convictions were that the court below had erred by drawing ‘wide
inferences’ which totally ignored the defence version and the defences
raised by the second appellant. While the numerous discrepancies
(relating to material aspects of their testimony which did not redound to
the appellants’ creditworthiness) in the defence version and the
appellants’ appalling quality as witnesses were conceded, counsel
contended that this did not warrant a complete rejection of their
testimony.

[19] The thrust of the second appellant’s defence at the trial was that he
fired shots at the figure in the belief that his life and those of his
colleagues were in danger. The defence thus raised in answer to the
murder charge was that of private defence alternatively putative private

(2) The proved facts should be such that they exclude every reasonable inference from them save the
one sought to be drawn. If they do not exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct.’

defence. The requirements of these defences are trite. In the case of
private defence use of force is justified if it is reasonably necessary to
repel an unlawful invasion of person, property or other legal interest.2
The test of whether the accused acted justifiably in defence is objective.
Putative private defence may, on the other hand, be raised successfully
for lack of intention where the accused acted defensively in the honest but
erroneous belief that his life or property was in danger.3

[20] As the trial court found, I do not believe that the second appellant
can rely on either defence in the circumstances of this case. I have
extreme difficulty reconciling the appellants’ evidence (whichever of
their contradictory versions is chosen) as to precisely what occurred when
the deceased was shot, with the objective facts. The evidence shows
clearly that the deceased was aware that the police had been summoned
by Lang and were, reportedly, on their way. It seems to me most unlikely
that he would, with that knowledge, react by assuming an aggressive
stance when warned of police presence as the second and third appellants
would have it. This is particularly so if account is taken of the appellants’
version that warning shots were fired with the rifle. One would imagine
that the most natural reaction for a person in that situation, aware that he
is covered with a powerful automatic rifle whether by the police or
impostors (a suggestion was made on the appellants’ behalf that the
deceased may well have tried to defend himself because he did not
believe that the appellants were in fact members of the police) would be
to surrender or flee.

2 Burchell and Hunt General Principles of Criminal Law 3 ed Vol 1 p 72; S v Ntuli 1975 (1) SA 429
(A) at 436D-E.
3 S v De Oliveira 1993 (2) SACR 59 (A) at 63i-64a.

[21] The appellants’ version in this regard is further rendered more
improbable by the fact that when the deceased was found the safety catch
of his firearm was still on and he even held his torch in the other hand.
Much was made by the appellants’ counsel of Beja’s evidence that he had
seen a policeman from Mapusi police station removing bullets from the
deceased’s firearm before the arrival of the Mthatha SVC unit. This, in
his submission (made for the first time in this court) suggested that ‘the
scene was contaminated and the firearm tampered with’ before the SVC
unit’s arrival. It was therefore possible to infer that the deceased was
readying himself to discharge his firearm when he was shot, so went the
argument. The defence counsel also emphasized in support of this
argument that the entrance wound caused by the rifle bullet was on the
chest, arguing that this supported the proposition that the deceased had
turned to face the appellants on hearing their warning.

[22] There is simply no merit in these submissions. The uncontested
evidence of Sgt Paraffin stationed at Mapusi at the relevant time, who
was the first and only officer to investigate the scene before handing it
over to the SVC unit on their arrival, was that he found the scene guarded
and did not at any stage touch the deceased or his firearm. This
testimony, viewed with Mithi’s explanation about the state in which he
found the firearm, bearing in mind that both policemen were found
satisfactory witnesses by the court below, puts paid to the suggestions
made in this regard. The entrance wound on the chest takes the matter no
further as it could as easily be inferred that he was already facing the
appellants’ direction when they confronted him.

[23] It is undoubted on the evidence that the deceased was not ready to
shoot when he was shot. Accordingly I infer, as did the court below, that

he could not have assumed a threatening position as alleged by the second
appellant. In the circumstances, the second appellant had no reason
whatsoever to believe that his group’s lives were in danger and that it was
necessary, in self defence, to shoot the deceased. The ineluctable
conclusion is that he deliberately fired shots at the deceased when he
posed no threat to them, without first ascertaining his identity and issuing
any warning. His infliction of the fatal wound was thus unlawful.

[24] There is then the critical issue of the contact wound which the
defence version woefully failed to explain. Contentions made on the
appellants’ behalf in this court differed materially from those made in the
trial proceedings that he could have been shot by the unknown assailants.
Here, it was argued that the medical experts’ assessment of the wound
conflicted, as the district surgeon’s opinion was that the shot was not a
contact wound as it was fired at about 15cm away. Monahali’s testimony
in this regard is set out above and counsel obviously misunderstood it.
Suffice it to point out that all the experts agreed, without challenge, that
the wound bore a classic feature of a contact wound, as evidenced by
burnt edges around its entrance.

[25] Two questions now arise. Who inflicted the contact wound? When
(and how) was it inflicted in the established chain of events? To my mind,
it is highly improbable that the deceased was already shot when he met
the appellants. On the appellants’ version that it took them about 15 to 20
minutes to walk from their vehicle until they encountered him, this after
they heard gunfire as they drove down towards Lagoon Hotel, the
deceased would have been wandering in the bush with a severe wound to
his face for that duration instead of returning home, nearby, to seek help.
Significantly, neither Lang, who was in the vicinity waiting with other

neighbours for the police, nor Beja whom the deceased had recently left
at his gate, heard any sound of gunfire other than that which prompted
them to venture into the dark and conduct a search for the deceased, only
to find him mortally wounded.

[26] Similarly, Booi, Ngxumza and Sokuyeka (who testified for the
State in terms of s 204 of the Act and was at the conclusion of the trial
granted immunity from prosecution in terms of the provisions of that
section on a finding that he was a satisfactory witness) denied that they
heard any gunfire as they approached the scene. It is, therefore, most
peculiar that only the appellants attested to this earlier shooting episode.
Moreover, Scholtz opined that judging by the blood patterns on the
deceased’s face, he was most probably shot whilst lying down in the
position in which he was subsequently found. I am satisfied, in the
circumstances, that the trial judge was correct to dismiss this hypothesis
as a ‘fabrication made in an attempt to create the impression that …
unknown shooters [who] were trigger happy and in the close vicinity’ had
inflicted the contact wound.

[27] It is equally improbable that the deceased was shot in the face by
an unknown person after being mortally wounded by the second
appellant. Such a possibility would mean that the random shooter found
and shot a corpse. This scenario is not supported by any of the evidence.
Scholtz estimated the deceased’s survival time after the infliction of the
fatal wound between three to five minutes. The probabilities, especially
considering Scholtz’s description of the nature of the contact wound, and
the fact that nothing was apparently taken from the deceased, inexorably
lead to an inference that it was inflicted after the chest wound, obviously
to ensure that the deceased was dead.

[28] The only reasonable inference then left to draw is that the deceased
sustained both gunshot wounds in the shooting incident involving the
appellants. This finding makes a lie of the appellants’ version that they
never crossed the road to the side on which the deceased’s body was
found – not surprisingly, having regard to the uncontradicted expert
evidence placing the shooter, in relation to some of the R4 cartridges
linked to rifle 295 found at the scene, on that side of the road, in stark
contrast to their version. Although the evidence does not establish which
of them inflicted the contact wound,4 it is certain, however, on their own
version that they remained together at all material times. In that case, it is
inconceivable that any one of them left the scene unaware that the second
appellant had seriously wounded the deceased and that one of them had
then shot the deceased in the face at close range.

[29] It was contended for the first and third appellants that their
convictions were flawed because their intention to assist the second
appellant evade justice (or the fact that they were even aware that he had
committed a crime) was not established. In this regard a number of
submissions were made which the trial court correctly rejected. The court
below also did not accept their excuse for not reporting the incident and
convicted them of being accessories after the fact of the deceased’s
murder on the basis of their admitted failure to report the matter.

[30] Dolus is indeed an essential element of the offence of being an
accessory after the fact and the State must accordingly establish that the

4 In the view I take regarding the first and third appellants’ convictions as accessories after the fact to
murder flowing from the infliction of the chest wound, it is unnecessary to determine the question of
their criminal liability for the infliction of the contact wound, which if established, would be a basis for
a conviction as accessories after the fact to that offence as envisaged in the case of R v Gani and others
1957 (2) SA 212 (A), reaffirmed in S v Jonathan 1987 (1) SA 633 (A).

alleged accessory knew that the person whom he helped had committed a
crime.5 In this case it was common cause that these appellants were aware
of the shooting incident in which, as already mentioned, the third
appellant even participated. It is not in doubt that as policemen, they had
a duty to report the shooting incident. This duty flows from sec 205 (3) of
the Constitution of the Republic of South Africa, 1996 which provides:
‘The objects of the police service are to prevent, combat and investigate crime, to
maintain public order, to protect and secure the inhabitants of the Republic and their
property, and to uphold and enforce the law.’
In K v Minister of Safety and Security6 O’Regan J said:
‘[P]art of the three policemen’s work [is] to ensure the safety and security of all South
Africans and to prevent crime. These obligations arise from the Constitution and are
affirmed by the South African Police Service Act 68 of 1995.’
And in S v Williams and others7 this court held:
‘There is no doubt that a police officer has a duty to report a crime. It arises, inter
alia, from the provisions of statute which, at the relevant time, was s 5 of the Police
Act, 1958. In terms of this section one of the functions of the police is to investigate
crimes. What remains for decision is whether the failure to carry out the duty results
in criminal responsibility if the other requirements of accessorial liability are present.
I have no difficulty in holding that it does. Any other answer would give rise to
surprise and even indignation.’

[31] Failure by a police officer to report a crime with the intent to assist
the main perpetrator to evade conviction thus renders him guilty of being
an accessory after the fact of that crime. The first and third appellants’
excuse for their failure was based on sec 13(2) of the Police Service Act
which requires a police officer who ‘becomes aware that a prescribed
offence has been committed [to] inform his or her commanding officer

5 S v Morgan and others 1993 (2) SACR 134 (A) at 174e-f.
6 2005 (6) SA 419 (CC) at 430B.
7 1998 (2) SACR 191 (SCA) at 194c.

thereof as soon as possible.’ In this case their commanding officer,
behind whose presence at the scene they seek to hide, was the very
offender. In my view, their interpretation of the provisions of section 13
(2) is a brazen perversion of the section which cannot be countenanced,
least of all from law enforcement officers, both whom had been in the
police force for many years. They silently watched police investigations
flounder for three years and two innocent people languish in detention for
two of those years. It would be absurd to accept that they honestly
believed they had no obligation to report the shooting incident because
they were with their commanding officer when it occurred. Their flagrant
breach of their legal duty, patently intended to shield the second appellant
from prosecution, rendered them accessories after the fact to the murder.

[32] The State not only opposed the appeal but persisted with argument
advanced without success in the court below, that this court should alter
the convictions of the first and third appellants to murder on the basis of
common purpose. State Counsel argued further that at the very least, the
conviction of the third appellant, who admitted firing a shot at the scene,
should be altered to that of attempted murder. In his submission, the fact
that the State had not lodged a cross-appeal was no impediment as this
court is vested with the necessary powers by sec 322 of the Criminal
Procedure Act.8 This section empowers a court of appeal to alter a
conviction where it is convinced that the trial court, because of a wrong

8 Section 322 is in the following terms:
‘In the case of an appeal against a conviction or of any question of law reserved, the court of appeal
may-(a) allow the appeal if it thinks that the judgment of the trial court should be set aside on the
ground of a wrong decision of any question of law or that on any ground there was failure of justice; or
(b) give such judgment as ought to have been given at the trial or impose such punishment as ought to
have been imposed at the trial; or
(c) make such other order as justice may require:
Provided that, notwithstanding that the court of appeal is of the opinion that any point raised might be
decided in favour of the accused, no conviction or sentence shall be set aside or altered by reason of
any irregularity or defect in the record or proceedings, unless it appears to the court of appeal that a
failure of justice has in fact resulted from such irregularity or defect.’

finding of fact or a mistake of law, convicted the appellant of a less
serious offence than that which, in terms of the indictment, he should
have been convicted of.9

[33] I do not propose to dwell on this aspect. As the court below found,
there is no evidence to support a finding that the appellants had a prior
agreement to lie in ambush with the intention of shooting people on sight.
The trial judge gave the submission thorough consideration and gave full
reasons, with which I agree, for its rejection. Neither is there any
evidence that the third appellant fired a shot at the deceased. The State’s
contentions in this respect similarly lack factual basis and cannot stand.

[34] I turn to deal with the second appellant’s challenge of his
conviction for defeating the ends of justice. This offence consists in
unlawfully and intentionally engaging in conduct which defeats the
course or administration of justice.10 In this respect the State relied on the
following - the contact shot, the swapping of the R4 rifles, the torn pages
of the occurrence book and second appellant’s instructions to Ngxumza to
rewrite entries without informing a superior officer about the state of the
book. State counsel argued that the appellants had fabricated a version for
their return to the police station, knew that rifle 295 would be swapped
and that documentary evidence linking the second appellant to it would
be altered or destroyed with the deliberate intent to defeat the course of
justice. Appellants’ counsel, on the other hand, contended that the State

9 S v E 1979 (3) SA 973 (A); R v Mkhwanazi and others 1948 (2) SA 686 (A) at 690. It is important to
note that in S v E , the appeal court gave the appellant prior notice of the fact that it might consider
altering conviction, while in Mkhwanazi the conviction was altered but the sentence remained
unaffected. The practice is that an appellant should not be placed in jeopardy of having his or her
conviction converted to a more serious one, the sentence increased unless there has been prior notice
from the appeal court to show cause why this should not be done. There has been no such notice in this
case.
10 S v Burger 1975 (2) SA 553 (C).

had done no more than adduce circumstantial evidence which the court
below should have rejected as the second appellant had given a plausible
account.

[35] Regarding the first and third appellants’ role in the events
following the contact shot, the court below found although it was clear
that they had assisted their co-appellant in his endeavour to evade justice,
it would be inappropriate to convict them for defeating the course of
justice because to do so would amount to a duplication of convictions as
it had convicted them for their failure to report the crime. I agree. There is
in our law generally no distinction between accessorial liability and
defeating the course of justice.11 The State’s bid to have them convicted
on this charge on the basis of common purpose must also fail.

[36] However, the second appellant’s position is a different matter.
First, as regards the swapping of the rifles, he gave a completely different
reason to the magistrate during his bail proceedings. In that court he said
nothing at all about rifle 295 jamming up and stated instead that he did it
because he was in shock and panicked because it was the first time he
found himself in that situation. Furthermore, one wonders why he would
choose to return to his base which was about 2km away to fetch another
rifle leaving the trail to get cold instead of calling Sokuyeka, Booi and
Ngxumza, who were in the vicinity, for reinforcement. It must follow that
the version that the rifle jammed, which he surprisingly did not report to
the duty officer Mjindi when he booked out rifle 291, was false.

[37] Second, regarding the alleged oral report he made to the late Voko,
it was common cause that the latter did not submit a formal report to his

11 S v Williams and others 1998 (2) SACR 191 (SCA) at 194i.

superiors about the shooting incident as he was enjoined by the relevant
regulations governing police duties, including their use of firearms. On
the facts, it is highly improbable that Voko would have allowed the
investigation to take the course it did with the knowledge that the
deceased had probably been shot by a member of his unit acting in
private defence. Surprisingly, the second appellant did not mention the
alleged report to Voko in his confession to the magistrate. His
explanation there was that he had not reported that they had fired shots at
the scene because it was his first time to experience such a situation. It is
State counsel’s challenge to him to explain the glaring contradiction
between this explanation and his oral testimony in court which prompted
his attempted disavowal of the statement (voluntarily admitted in
evidence by his own legal representative) on claims made for the first
time at that stage which were not even put to Coetzee when he testified,
that he was ill-treated and told what to say by the police! I have no
hesitation rejecting his version that he did report the shooting incident as
a complete fabrication.

[38] Third, as to the swapping of the rifles, it was argued on the second
appellant’s behalf that the State did not prove that he tampered with the
occurrence book or tried to conceal the fact he had rifle 295 in his
possession during the mission. It seems a remarkable coincidence having
regard to the sequence of events that the second appellant, who was not
the most senior member in the station, would be the one to present the
duty officer with a torn book with instructions to perform an irregular act.
Equally striking is the fact the torn pages related to fresh events of that
very morning. A perusal of the relevant entries, starting from the previous
evening, shows that but for the Lang report, it was an uneventful shift.
For what conceivable reason then could one remove the missing pages

and who else (except someone involved in the contentious shooting
incident) in the circumstances would have an interest in those pages? I
have difficulty with the second appellant’s claim that he did not book out
rifle 295 because they left in a hurry yet he managed to book out rifle 291
on their return, when there was greater cause for urgency. There is no
doubt in my mind that his version in this regard is false. I agree with the
conclusion of the court below that he tampered12 with the occurrence
book to remove proof that he had booked out rifle 295, which, very
conveniently, was subsequently not sent for a ballistics test. Therefore,
his conviction for defeating the course of justice was proper.

[39] The principles governing the adjudication of appeals are well
established. In the absence of demonstrable and material misdirections by
the trial court, its findings are presumed to be correct and will only be
disregarded if the recorded evidence shows them to be clearly wrong.13
As indicated above, the credibility findings made by court below were not
challenged, correctly so, in my view. Neither have I found any
misdirection in its reasoning and findings of fact. None of the inferences
it drew conflict with the proven facts. No cogent argument was advanced
on the appellants’ behalf to persuade us otherwise. In testing the
appellants’ version against the inherent probabilities, I took into account
that it cannot be rejected merely because it is improbable; that it can only
be rejected on the basis of inherent probabilities if it can be said to be so
improbable that it cannot reasonably possibly be true.14 In my opinion, no

12 That the book was tampered with and the entries ‘rewritten’ by Ngxumza on his orders were
inaccurate is clearly illustrated, for example, by the entry mentioned in para [15] above that the second
appellant booked out rifle 291 at 02h55 when according to an earlier entry they left the police station in
response to Lang’s call only twenty minutes earlier, at 02h40 – an impossibility, considering the
evidence their destination was 2km away from the station and that it took about 20 minutes just
walking from their vehicle to the spot where they encountered the deceased.
13 S v Mkohle 1990 (1) SACR 92 (A); S v Hadebe and others 1997 (2) SACR 641 (SCA) at 645e.
14 S v Shackell 2001 (2) SACR 185 at para 30.

fault can be found with the rejection of their evidence. I am satisfied not
only that their version is improbable but that beyond any reasonable
doubt it is false. The convictions should, therefore, not be disturbed.

[40] It now remains to consider the sentences. The question which this
court must determine in this respect, which if answered in the affirmative
will entitle it to interfere, is whether there was material misdirection by
the trial judge in his assessment of the factors relevant to the
determination of sentence or, if not, whether the sentences imposed are so
shockingly inappropriate as to give rise to the inference that he failed to
exercise his discretion properly.15

[41] With regard to the murder conviction, the court below considered
the provisions of sec 51 of the Criminal Law Amendment Act 105 of
1997 which prescribe a minimum sentence of 15 years imprisonment
absent substantial and compelling circumstances justifying a lesser
sentence, and found that none existed. The criteria which a sentencing
tribunal should consider in determining whether or not such
circumstances exist were enunciated in S v Malgas.16 Those particularly
pertinent for present purposes are: that a court has to consider all the
circumstances traditionally taken into account by courts when sentencing
offenders; that for the circumstances to qualify as circumstantial and
compelling they need not be exceptional in the sense of seldom
encountered or rare and that though the prescribed sentences require a
severe, standardised  and consistent response from courts unless there
were, and could be  seen to be, truly convincing reasons for a different
response, the statutory framework still left the courts free to continue to

15 S v Abrahams 2002 (1) SACR 116 (SCA) at para 15; S v Malgas 2001 (1) SACR 469 (SCA) at para
12.
16 2001 (1) SACR 469 (SCA) at para 25.

exercise a substantial measure of judicial discretion in imposing
sentence.17

[42] The appellants’ counsel did not draw our attention to any specific
misdirection in the reasoning of the court below (in respect of any of the
sentences) and argued merely that they were too harsh. Clearly, there are
weighty mitigating factors in the second appellant’s favour. He is in the
prime of his life. He is a first offender with a long unblemished record
with the police force. He is married with young children and is the sole
breadwinner of a large extended family with a myriad of responsibilities
attaching to that mantle. The case must have had a devastating effect on
his personal life. His devotion to his calling is evident from his rise
through the police ranks. He was not even on duty on the day in question
but dutifully answered the order to embark on a dangerous mission in the
dead of the night. It is also a fact that the deceased’s killing was not
premeditated and that he bore him no ill-feeling. The offence was
committed in the course of duty in pursuit of armed and potentially
dangerous individuals.

[43] However, these factors cannot be viewed in a vacuum and must be
weighed against the aggravating features of the case; the serious nature of
the offence especially when committed by a police officer who has a legal
duty to protect the public and his lack of remorse, amply demonstrated by
his iron resolve to conceal the truth to the bitter end – from the elaborate
steps he took to cover up and hamper police investigations; the shooting
of the deceased in the head of which, if not perpetrated by him, he was
nonetheless aware and should have prevented especially as the leader of

17 S v Abrahams 2002 (1) SACR 116 (SCA) at para 13; S v Fatyi 2001 (1) SACR 485 (SCA) at paras 4
and 5.

the mission; knowingly and silently watching innocent people languish in
jail for two years for a crime he committed, the false statements made to
the magistrate and police disciplinary tribunal and giving false testimony
in court.

[44] These are all factors which the court below took into account in its
judgment.  I am satisfied that it properly applied the sentencing guidelines
in S v Malgas and carefully considered whether there were truly
convincing reasons for departing from the prescribed minimum sentence
in reaching its conclusion. The imposition of the prescribed sentence of
15 years was, therefore, appropriate in the circumstances.

[45] The same considerations apply in respect of the other sentences,
including those of the first and third appellants whose personal
circumstances replicate those of the second appellant. They had no
compunction contriving with their compatriot to conceal the true facts
and make false statements, in perversion of the administration of justice
which they were legally bound to enforce and uphold. Their conduct
denigrated their duty to protect the South African citizenry and inspire its
confidence in the police force especially when their country is ravaged by
intolerable levels of crime. Integrity and honesty are the cornerstone
qualities of an effective police officer without which law and order
cannot be maintained. There is no place for dishonesty in the police force
and such conduct deserves the strictest censure. In the words of Olivier
JA,18 ‘a police officer who places supposed loyalty to colleagues committing crimes
above his or her police duties should know that the courts of law will take an
extremely serious view of such conduct and will not hesitate to impose a severe
sentence’. Weighing all the circumstances of this case, it seems to me that

18 S v Phallo and others 1999 (2) SACR 558 (SCA) at para 42.

sentences of eight years imprisonment imposed on them are reasonable
and justified.19

[46] There is, finally, a statutory question relating to the sentences to be
dealt with. Section 276B of the Act20 provides:
‘(1) (a) If a court sentences a person convicted of an offence to
imprisonment for a period of two years or longer, the court may as part of
the sentence, fix a period during which the person shall not be placed on
parole.
(b) Such period shall be referred to as the non-parole-period, and may not
exceed two thirds of the term of imprisonment or 25 years, whichever is
the shorter.
(2) If a person who is convicted of two or more offences is sentenced to
imprisonment and the court directs that the sentences shall run
concurrently, the court shall, subject to subsection (1) (b), fix the non-
parole period in respect of the effective period of imprisonment’.

[47] This court has previously balked at fixing non-parole periods. In S
v Botha21 the court described the exercise as ‘an undesirable judicial incursion
into the domain of another arm of the State, which is bound to cause tension between
the judiciary and the executive… [as] courts are not entitled to prescribe to the
executive branch of government how long a person should be detained, thereby
usurping the function of the executive’. In an earlier precedent, S v Mhlakaza22
Harms JA expressed similar reservations pointing out that ‘sentencing
jurisdiction is statutory and courts are bound to limit themselves to performing their
duties within the scope of that jurisdiction’. It is well to bear in mind both
judgments were decided before sec 276B came into effect, on 1 October

19 S v Phallo (supra) at para 41.
20 Inserted by sec 22 of the Parole and Correctional Supervision Amendment Act 87 of 1997.
21  2006 (2) SACR 110 (SCA) at para 25 (decided on 28 May 2004).
22 1997 (1) SACR 515 (SCA).

2004. It seems to me that the Legislature enacted the provisions to
address precisely the concerns raised therein by clothing sentencing
courts with power to control the minimum or actual period to be served
by a convicted person (although controversy may nevertheless still
remain in other respect alluded in Mhlakaza such as possible tensions
between sentencing objectives and public resources).

[48] For all these reasons, the appeals of the first, second and third
appellants are dismissed. In accordance with the provisions of s 276B (2),
it is ordered that the second appellant shall serve a non-parole period of
not less than ten years.

_________________
MML MAYA

JUDGE OF APPEAL

CONCUR:

MTHIYANE JA )

HURT JA )

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

PAKANE V THE STATE
From:
The Registrar, Supreme Court of Appeal
Date:
Friday, 28 September 2007
Status:
Immediate

On 28 September 2007 the Supreme Court of Appeal gave judgment in Pakane
and others v The State  dismissing an appeal from the Mthatha High Court
brought by three members of the police force who were involved in a shooting
incident at Coffee Bay in which Mr Leon Fourie (the deceased) was killed. The
second appellant was convicted of murder and defeating the ends of justice. He
was sentenced to 15 years imprisonment for the murder and eight years
imprisonment for defeating the ends of justice. His two co-appellants were
convicted of being accessories after the fact to murder and were each sentenced
to eight years imprisonment.

It was common cause that the second appellant shot and killed the deceased
when he fired shots at him with an R4 rifle during a foot patrol near the Lagoon
Hotel in the early hours of 13 December 1999. He and his group were
investigating a report of shooting in the area which had no lighting. Unbeknown
to them, the deceased was also patrolling the neighbourhood.

The SCA accepted trial court’s adverse findings against the appellants who gave
contradictory versions in respect of material aspects of the case. The SCA
accepted the second appellant’s version that he shot at a shadowy figure but
rejected his explanation that he fired at the figure because it ignored his oral
warning that they were police and warning shots and aimed a big rifle in their
direction as false in view of evidence that the deceased’s 12 bore protector was
still on ‘safety’ and had no bullets in the chamber when his body was found.  The
SCA found that he unlawfully shot and killed the deceased.
The SCA further confirmed the second appellant’s conviction for defeating the
ends of justice on a finding that the trial correctly accepted evidence that in a bid
to cover up the offence once the appellants realised the deceased’s identity after
the fatal wound had been inflicted, one of them shot the deceased in the face, at
close proximity, to ensure that he was dead to cover up the offence and that the
second appellant swapped his rifle with another one, tore out pages with entries
linking him to the rifle used in the shooting which was not sent for ballistics
testing and failed to report the shooting incident to his immediate superior as he
was required by law.

The SCA further found that the trial court had correctly convicted the first and
second appellants for their failure to report the offence with the intention to assist
the second appellant evade prosecution.

The SCA concluded that in the absence of misdirection on the part of the trial the
convictions and sentences  imposed on the appellants were proper.