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[2017] ZAWCHC 147
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S v Sishuba (CC11/2017) [2017] ZAWCHC 147; [2018] 1 All SA 866 (ECLD, Mossel Bay); 2018 (1) SACR 402 (WCC) (7 September 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CIRCUIT LOCAL DIVISION, MOSSEL BAY)
CASE
NO: CC11/2017
[
REPORTABLE
]
In
the matter between:
THE
STATE
AND
THAMSANQA
SISHUBA
Accused
HENNEY,
J
INTRODUCTION
[1]
The deceased in this matter,
Matthaeus Human (“first deceased”) and his wife Eurika
Human (“second deceased”),
were an elderly couple who
lived with their 2 dogs, a Staffordshire bull terrier (“staffie”)
and a Yorkshire terrier
(“yorkie”), in Great Brak River,
near the town of Mossel Bay. The first deceased with the assistance
of the second
deceased, were involved in a business which delivered a
service which entailed the pumping of raw sewerage. They had one
worker
by the name of Steven who assisted the first deceased in the
business.
[2]
On the morning of 14 June 2016,
the first deceased, as per his usual routine, would have woken up and
make coffee for him and the
second deceased who would still have been
in their bedroom. He would also have fed their 2 dogs. He would then
have waited for
his worker Steven whereafter they would start with
the business for the day. He had an appointment at 7 AM that
particular morning
to remove sewerage from a client, Mr Wilhelm Nel.
[3]
According to the evidence of Mr
Nel, the first deceased never arrived at his house on that particular
day. It is common cause that
Mr Nicholas Cloete, a neighbour of the
deceased, prior to 18 June 2016, observed that no one was in or
around the premises of the
deceased. He did not even observe the dogs
and found this very strange.
[4]
On 18 June 2016, after being
alerted by someone else, he went to the deceased house and according
to him, something was not in order
at the house. He observed that the
staffie was inside the house, which he found uncommon. He also
noticed someone lying in one
of the rooms and immediately called the
police.
[5]
It is common cause that the
second deceased was found dead in their bedroom and later on the
first deceased was found lying dead
on the floor of the garage. It is
also not in dispute that both the deceased’s property as set
out in counts 1 and 2, respectively
were stolen from them. As well as
an amount of R14 000,00 that was stolen by electronic means from
the second deceased after
she was threatened with violence. The cause
of death of the first deceased was a result of chop wounds to the
head and the cause
of death of the second deceased were stab wounds
to the neck and chest.
[6]
The accused before court was
arrested by the police on 7 July 2016 after a palm print of his was
found at the scene of the crime.
Although the accused made a
statement to the police a few weeks before his arrest, it is common
cause that Steven was involved
in the murder and robbery of the
deceased and that he later fled to Lesotho. After the arrest of the
accused, he was charged with
the following offences which the State
alleges was committed during the period 13 June 2016 to 18 June 2016
at Sandhoogte Road
in Great Brak River:
a)
Count 1: ROBBERY WITH
AGGRAVATING CIRCUMSTANCES in respect of the first deceased, Matthaeus
Human.
b)
Count 2: ROBBERY WITH
AGGRAVATING CIRCUMSTANCES in respect of the second deceased, Eurika
Human.
c)
Count 3: MURDER of
the first deceased, Matthaeus Human, by hitting him with a panga
which caused chop wounds to his head.
d)
Count 4: MURDER of
the second deceased, Eurika Human, by stabbing her with a sharp
object in the neck and chest.
[7]
The state alleges that in
respect of all 4 charges the provisions of section 51 of Act 105 of
1997 is applicable. It is clearly
set out in the indictment which
specific provisions of the Act are applicable.
[8]
Adv. C van der Vijver from the
Office of the Director of Public Prosecutions, Western Cape appeared
for the State and Ms Luterek,
a local attorney appeared for the
accused.
PLEA
[9]
The accused pleaded not guilty
to all the charges against him.
[10]
He gave a detailed plea
explanation in terms of the provisions of section 115 of the Criminal
Procedure Act 51 of 1977. His explanation
of plea is set out in
exhibit A and can be briefly summarised as follows.
[11]
He says that on Monday, 13 June
2016 Steven called him to ask if he will accompany Steven to his
employer (the first deceased),
on the next day which was Tuesday, 14
June 2016. After they arrived there on the morning of 14 June 2016,
Steven went to open the
garage and asked him to wait inside. At that
stage, it was still dark. After a while the first deceased woke up
and came outside
and spoke to Steven.
[12]
The two of them then came into
the garage, whereafter Steven grabbed a panga and started to hit the
first deceased. After Steven
hit the first deceased about 3 to 4
times; Steven requested that he also hit the first deceased with the
panga. The accused says
that at that stage he was afraid, and Steven
said that he will also hit him (the accused) if he does not want to
hit the first
deceased. Then the first deceased fell to the ground
and the accused says he hit the first deceased once on his neck or
lower head.
The first deceased tried to stand up and called out to
Steven.
[13]
The accused says he was scared
and ran away towards the N2, and later went to his house in Zone 14,
Great Brak River. After that,
Steven phoned him a few times during
the day and said that he wanted to see him. Steven also told him that
he had “finished
the old man and woman”. Later that
evening, Steven requested him to go back to the house of the deceased
to fetch his (Steven’s)
keys, but he was too afraid to go back.
[14]
On 15 June 2016, he accompanied
Steven to Mossel Bay where Steven bought a bus ticket to go to
Bloemfontein and told him that he
will return on the Sunday. Steven
also gave him the keys to his house. The accused was later arrested
by the police after members
of the community told the police that he
was friends with Steven. He told the police that he had the keys to
Steven’s house
and he accompanied the police to the house.
FACTS
IN DISPUTE
[15]
The accused denies that he,
himself, murdered or robbed the deceased or was involved with Steven
in the murder and robbery of the
deceased. Or that he voluntarily
took part in the attack on the first deceased. He further denies that
he attacked or was present
or assisted in the murder of the second
deceased.
FACTS
THAT ARE NOT IN DISPUTE
[16]
The following facts are not in
dispute:
1)
that both deceased were
attacked on 14 June 2016 and were subsequently found murdered;
2)
that the cause of death of the
first deceased was chop wounds to the head and that of the second
deceased was stab wounds to the
head and neck;
3)
that the accused and Steven
were at the property of the deceased at the time of the attack;
4)
that the accused was present
when the first deceased was attacked by Steven with the panga;
5)
that the items as mentioned in
the charge sheet were stolen from the deceased during or after
the attack;
6)
that an amount of R14 000,00
was paid from the ABSA account of the deceased into an FNB account in
Lesotho, by electronic means;
and
7)
that Steven, a day after the
incident on 15 June 2016, went to Bloemfontein and later fled to
Lesotho.
THE
EVIDENCE
[17]
The state called the following
witnesses: Dr Christa Hattingh; Gerhardus Petersen; Wilhelm Nel;
Nicholas Cloete; Piet Phaledi; Lt
Col Mautshiyane; Warrant Officer
Schutte and Warrant Officer Rabie. Apart from the viva voce evidence
a range of documents and
photographs were handed in as documentary
evidence.
[18]
During the plea proceedings,
the accused gave a full explanation of plea which was recorded in
exhibit A as referred to earlier.
And he also made admissions which
were recorded in exhibit B.
The
exhibits the State further handed in was a photo album (exhibit C)
which depicts photos of the crime scene, as well as the respective
post mortem reports (exhibit D1, D2 and an additional report D3) of
the deceased compiled by Dr Hattingh.
[19]
A further photo of a handmade
knife that was found in the clothes of the first deceased during the
post mortem examination was handed
in as exhibit D4. Exhibit G was a
statement in the form of an affidavit the accused made to Warrant
Officer Rabie, exhibit E was
a report of a pointing out made by the
accused before Lieutenant-Colonel Mautshiyane and exhibit F which is
a so-called warning
statement made by the accused to Warrant Officer
Rabie. The court will referred to these exhibits where necessary
during the course
of the judgment.
[20]
The accused testified in his
own defence and did not call any witnesses.
[21]
Most of the evidence is not in
dispute. The court will only where necessary for the purposes of
resolving the factual disputes refer
to some of the evidence of these
witnesses.
[22]
The evidence in chronological
order is as follows. Wilhelm Nel, to whose evidence I had already
referred to in the introduction,
does not need to be repeated because
it is common cause. The next witness was Nicholas Cloete, I also
referred to his evidence
in the introduction and will not repeat it,
as it is common cause and not in dispute. Warrant Officer Schutte’s
evidence
is also not in dispute and he basically states that he was
the first policeman to arrive on the scene on 18 June 2016 where they
found the deceased. This was after the police were called by Mr
Cloete.
[23]
He testified that the place was
locked and they had to gain access to the house by having to pry open
one of the doors and in one
of the rooms they found the body of the
second deceased. He further testified that they found the 2 dogs in
the house. And he also
observed some blood spatters on the floor
tiles in the living room.
[24]
He testified that they found
the first deceased in the garage, which was also locked, and that
they had to cut the padlock off the
garage door with a bolt cutter.
The scene was later handed over to Warrant Officer Rabie, who took
over the investigation of the
case. Also present at the scene, at a
later stage, were members of the forensic crime unit of the South
African Police Services,
which included fingerprint experts.
[25]
Warrant Officer Rabie, the
investigating officer, testified that after he had attended the scene
of the crime on 18 June 2016, he
enquired from the neighbours if the
deceased had any workers and they gave him Steven’s name. He
later on the same evening,
through his informers, found out who
Steven was.
[26]
These informers also pointed
out the residence of Steven, which was situated in the Wolwedans area
of Great Brak River. He found
no one at home and returned to the
scene of the crime. On 21 June 2016, he received information that
there was someone at Steven’s
house. He went to the house and
found the accused, who was unknown to him. He had a discussion with
the accused and asked him whose
house it was, to which he replied
that it was Steven’s.
[27]
The accused told him that
Steven was not at home but that he was somewhere further down the
road. After further questioning, the
accused told him that Steven is
not there, but that he went to his family in Bloemfontein. He further
stated that Steven had given
him the keys to his house and that he
had to look after the house.
[28]
The accused told him that he
was instructed not to let anyone enter the house. He explained to the
accused why he was looking for
Steven and that he wanted to have
access to the house. Whereupon the accused gave him permission to
search the house.
[29]
While searching the house, he
came across a dirt bin wherein he found a plastic bag which contained
a lady’s purse with some
cards. He saw that it was the property
of Mrs Human, the second deceased. He also found a wallet that
belonged to Mr Human, wherein
he found some cards and his driver’s
licence. On the same day, he took a statement from the accused. At
that stage he did
not consider him as a suspect and the accused also
gave him the impression that he did not know anything about the
incident.
[30]
He also, due to the fact that
the accused was in Steven’s house and to eliminate his
fingerprints and because he was not a
suspect at that stage, took the
fingerprints of the accused. As a result of this information given to
him by the accused, he went
to Botshabelo in the Free State, to try
and find Steven. According to him, Steven later fled to Lesotho and
is currently still
in that country.
[31]
After a while he received the
results of the fingerprints that were lifted at the scene of the
crime, and it found that the palm
print of the accused was lifted at
the scene. The palm print was found on the handle of a boat that was
standing somewhere on the
premises where the crime was committed.
[32]
After he received this palm
print, he again approached the accused on 7 July 2016 and told him
that they found his palm print on
the scene of the crime. He also
informed the accused about the charges against him and explained his
constitutional rights to him.
[33]
He wanted to take a warning
statement from the accused, but the accused refused and instead
volunteered to answer questions posed
to him. When he conducted this
interview with the accused, he was assisted by a Sotho speaking
interpreter. In his statement,
he made mention of a person by
the name of Jack that Steven mentioned was also on the scene.
[34]
The accused further said that
Steven brought the first deceased into the garage and when he saw
this, he ran away towards the direction
of the N2 and at that time he
saw two unknown men entering the premises of the deceased. There were
rumours about two persons who
had sent some package to Bloemfontein,
which he followed up but could not connect this occurrence to this
case.
[35]
He further tried to follow up
leads based on the rumours about the two unknown persons which proved
to be fruitless. He tried to
trace the cell phones of the deceased
and it emerged that Steven had used one of the cell phones of the
first deceased.
[36]
Upon further investigation, it
also came to his attention that an amount of money was transferred
from an ABSA account of the deceased
to an FNB account in Lesotho, on
14 June 2016. He also made arrangements for the accused do a pointing
out to Lieutenant-Colonel
Mautshiyane.
[37]
In cross-examination he
testified that the accused gave his co-operation to him and had
regular contact with him but it later emerged
that the accused tried
to mislead him. He further insisted that the accused had told him
about the two unknown persons that entered
the premises on the day of
the incident.
[38]
The version that was put to him
by the legal representative of the accused that corresponds with the
accused’s plea explanation
was never conveyed to him by the
accused. In fact, he asked the accused, why he never went to the
police station and he said the
accused told him that he was afraid.
He further testified that he was present during the post mortem
examination and they found
a handmade knife in the clothes of the
first deceased.
[39]
Dr Christa Hattingh was the
state pathologist that performed the post-mortem examination on the
respective deceased. This occurred
on 20 June 2016. As mentioned
earlier in respect of the first deceased, she found that there were
seven chop wounds that were inflicted:
3 on each side of his head;
one wound to the shoulder; one to the lower forearm; and a further
wound to the chest. The chop wounds
to the head had caused 3 incised
injuries to the brain and were compatible with the type of instrument
or weapon as shown on photo
90, the panga.
[40]
In her opinion if regard is to
be had to the manner in which the wounds were inflicted there was a
clear intention to kill him.
She further testified that the first
deceased may have been alive for some time after the attack.
[41]
In respect of the second
deceased, she found the cause of death to be stab wounds to the chest
and neck. These wounds, in her view,
is compatible with the home-made
knife or sharp object as shown in exhibit D, because of the irregular
edges it had.
[42]
Lieutenant-Colonel Mautshiyane
was the police officer who accompanied the accused when he went to do
a pointing out of the scene
of the crime. He recorded everything that
the accused said to him in exhibit E. He further insists that the
accused told him everything
that was written down in this document.
[43]
Piet Phaledi resides in Great
Brak River, and conducts a passenger transport business which
transports people between Great Brak
River and Mossel Bay. Both
Steven and the accused are known to him. On 15 June 2016 he was
called by Steven who requested him to
transport him to Mossel Bay.
Before he went to pick up Steven, the accused came to his house at
about 8 AM.
[44]
The accused wanted to go with
him to fetch Steven and later accompanied him when he picked Steven
up at about 9 AM. The accused
and Steven sat at the back of his
bakkie. Steven had a pilot case and he dropped him off at the
InterCape bus station near Shell
garage in Mossel Bay, whereafter he
and the accused returned to Great Brak River.
[45]
Gerhardus Petersen is the
son-in-law of the deceased. He testified about the business they were
involved in, the manner in which
their house was set up and the daily
routine of the deceased. He knew that Steven was one of the workers
of the first deceased.
He further testified that it would have been
unusual for the first deceased to have employed another person to
work for him during
June, because he would not have been very busy
during that time.
[46]
The second deceased used to do
the Internet banking of the business and she was also involved in the
administration of the business.
He said that although they had a
garage, they never used it to park their vehicles in. They also had 2
dogs and he further testified
about the feeding routine of these
dogs. It also came to his attention at a later stage that an amount
of R14,000.00 was electronically
withdrawn from the banking account
of the deceased and transferred to an FNB account in Lesotho, on 14
June 2016.
[47]
He further testified about the
items that were discovered to be missing and presumably stolen. The
family of the deceased had been
severely traumatised by this
incident. It also affected his wife, her sister and their children
who had difficulty in trying to
cope with this incident.
[48]
That was the evidence that was
presented by the state.
[49]
I will now proceed with a
summary of the evidence given by the accused.
[50]
The accused, in his evidence,
stated that the first deceased was known to him and he used to work
for him during December 2015.
In the evening of Monday, 13 June 2016,
Steven called and told him that the first deceased wanted someone to
come and assist him
with the pumping of sewerage on 14 June 2016.
[51]
He and Steven arranged to meet
each other at 6 AM the next morning whereby Steven would come to his
house. After Steven came to
him the next day, they went to the house
of the deceased. Steven had a school bag with him. He himself did not
carry any weapon
and he was not aware if Steven had any weapon with
him. When they arrived at the premises of the deceased, it was still
dark and
they went to the garage. Steven opened the garage door and
told him to go inside. He entered through the side door. Steven told
him to wait until the first deceased has woken up. Steven in the
meantime, was outside busy with the lorry.
[52]
The first deceased came out of
his house and into the garage on his own. Steven then suddenly
started to attack the first deceased.
He then proceeded to hit the
first deceased with an object; the accused says he cannot remember
what it was. The first deceased
then fell to the ground. At that time
the accused says he ran away towards nearby trees and stood there for
a moment. He heard
the first deceased screaming and then ran away to
Zone 14, where he stays.
[53]
Later, Steven came to him and
asked why he ran away. He told him that he ran away “from what
he (Steven) was doing”
(sic). He did not go to the police
because he was scared and confused. Steven requested him to go back
to the deceased’ house
to fetch a key which he left on the car
seat. The accused says he refused to go because he was scared to go
back to that house.
On Wednesday, 15 June 2016, which was the next
day, he saw Steven again. Steven had hired Piet Phaledi, to take him
to the bus
station in Mossel Bay. He was requested by Piet, to
accompany him and Steven to Mossel Bay. Steven was dropped at the bus
station
and took a bus to Bloemfontein.
[54]
The accused says Steven
promised him that he would come back and that he only took some
clothing to Bloemfontein. They were in regular
contact and he also
called Steven to find out if he arrived safely in Bloemfontein.
[55]
The people in the community
told Warrant Officer Rabie, that Steven had left his house key with
him. He was later questioned by
the investigating officer, who told
him what Steven had done. The police searched Steven’s house,
and during the search they
found a plastic bag and took it with them.
They arrived again the next day and took him to the police station.
[56]
He told them that he has no
knowledge of what Steven had done, and that Steven told him that he
would be coming back. He never entered
the main house of the deceased
and cannot remember if he touched anything in the garage. He was just
standing there.
[57]
The court will deal with the
further evidence of the accused during the evaluation of all the
evidence.
EVALUATION
[58]
It is common cause that at
round about 6 o’clock on the morning of 14 June 2016, the
accused and Steven went to the house
of the deceased. It was during
this time that the deceased were attacked, killed and robbed of their
possessions. It must have
also been during that same time that an
amount of R14,000.00 was transferred by means of electronic or
Internet banking from the
ABSA account of the deceased to an FNB
account in Lesotho. It is not in dispute that the second deceased was
the only person that
could have performed or executed such a
transaction.
[59]
The evidence shows that the
first deceased did not possess the necessary knowledge and skills to
have performed such a transaction.
There were no eyewitnesses to this
incident. And the only person that could give the court an
explanation as to what happened was
the accused.
[60]
The accused admitted that he
was on the scene and in the garage where the first deceased was
attacked, but that is the only portion
of his evidence that can be
accepted.
[61]
His version as to what really
and truly happened on the scene is dishonest and untruthful. In his
initial statement to the police,
he created the impression that he
did not have any knowledge about this incident. And only told the
police about how he accompanied
Steven to the bus station in Mossel
Bay and how Steven left the keys of his house in his possession.
[62]
This, whilst he knew what had
happened to both deceased’s and that Steven was responsible for
what happened there. It was
only at a later stage, when it emerged
that a palm print of his was found at the scene and when he was
required to give an explanation
as to how his palm print could have
been found on the scene, that he told the police that he himself was
present at the scene when
the first
deceased was attacked. He
gave different versions as to what really happened at the scene with
regards to his involvement. And he
tried to mislead not only the
investigating officer, but also this court.
[63]
In his attempt to mislead the
court, he tried to disavow the various versions he gave to the police
as well as the version that
was given to the court in his explanation
of plea. In his so-called warning statement made to the investigating
officer after his
arrest, he stated that when they were at the house
of the deceased, Steven also known as Lebohang, gave him a panga, and
told him
“you
will see
what you going to do with this panga.”
(translated)
[64]
He further said in his
statement, that at that stage he and Lebohang went through a side
door into the garage. Lebohang told him
that he must sit in the dark.
Thereafter Lebohang and the first deceased came into the garage. Then
Lebohang attacked the first
deceased with some object. The accused
says at that stage he got a fright and ran out of the garage. He left
the panga in the garage.
[65]
In his explanation of plea (Exh
“A”), he says the following about the attack on the first
deceased. That when they arrived
at the place of the deceased, Steven
opened the garage door and told him to wait inside, after a while the
first deceased woke
up and the lights of the house went on.
[66]
After Steven and the first
deceased spoke to each other, they came into the garage and Steven
grabbed the panga and started to hit
the first deceased. After Steven
hit the first deceased about 3 or 4 times, he told him to also hit
the first deceased. He says
that he was afraid of Steven who told him
that if he does not want to hit the first deceased he would also hit
him.
[67]
At that stage the deceased
started to fall down to the ground and then he hit the first deceased
once with the panga, on his neck
or lower head. The first deceased
started to scream and the accused said that it was at that stage that
he ran away. He was later
contacted by Steven who told him that he
wanted to see him. And he said that he had “finished the old
man and woman”.
[68]
In his evidence in court, he
later says the following about the incident. That when they arrived
at the premises of the deceased
it was still dark. Both he and Steven
went into the garage. Steven said he must remain behind in the
garage. After the first deceased
woke up, he went to Steven who was
busy with the lorry. The first deceased came into the garage on his
own and Steven followed
him.
[69]
He was standing one side, and
then he saw Steven fighting with the first deceased. Steven was busy
hitting the first deceased, but
he cannot remember what Steven used
to hit the first deceased. When the first deceased fell onto his
knees, he says that it was
at that stage that he managed to run away.
[70]
It is clear that the accused’s
evidence about what happened at the scene is not credible and he
tried to mislead the court
as to what really happened there. He was a
poor witness who failed to take the court into his confidence. He was
extremely evasive
and argumentative during cross-examination when
confronted with these different versions. This fact was conceded by
his legal representative
Ms Luterek during argument.
[71]
Ms Luterek in argument further
submitted that the mere fact that the accused was a dishonest and
untruthful witness does not mean
he is guilty because he may have
lied because of the position he found himself in. That may be correct
but the accused gave several
versions to this court as to what really
happened. If he wanted this court to believe him he could have right
from the onset said
to the police that he was involved but did not do
anything to the deceased.
[72]
He chose not to do so when he
first spoke to Warrant Officer Rabie, but rather led him to believe
that he did not know anything
about the incident. Then when it was
shown that one of his palm prints was found on the scene he gave a
further 3 different versions.
That is, when in a statement to the
investigating officer, he placed himself on the scene but denied that
he was involved in the
assault of the deceased.
[73]
He similarly in a statement
made to Lieutenant-Colonel Mautshiyane also denied that he was
involved in the assault of the first
deceased. Then in court during
his explanation of plea, he admitted that he had assaulted the first
deceased, albeit under duress
from Steven. Only to disavow that
admission later during evidence in court, where he once again stated
that he did not do anything
to the first deceased. In
S
v T
2000 (2) SACR 658
(Ck)
at paragraph 19,
Ebrahim J
said the following in this regard: “...
It
is apparent that the magistrate failed to apply his mind properly in
assessing the appellant’s story. He clearly
did not
believe the appellant and for this reason rejected his version. This
approach was manifestly incorrect. Even if he subjectively
disbelieved the appellant he was still required to consider whether
there was a reasonable possibility of the version being true.
Before
his explanation may be rejected it must not merely be improbable but
it must be false beyond reasonable doubt.”
In
my view, this is clearly a case where the accused version is false
beyond reasonable doubt.
[74]
There are further aspects of
his evidence which the court finds improbable and which can safely be
rejected. These are: why would
Steven have wanted him to go back to
the scene to go fetch a key? He tried to create the impression that
he was afraid of Steven
because of what he had done, but he never
went to the police to report the incident.
[75]
Even after Steven had left for
Bloemfontein and would not have been in a position to harm him, he
still did not go to the police.
Before this, he rather further
associated himself with Steven, by meeting him again at a later stage
after he had committed this
horrible crime, which made him so afraid
that it caused him to run away.
[76]
Why then would he go with
Steven to the bus station? Why would Steven leave the keys of his
house in his possession? Why did the
accused not tell the police when
he was confronted by Warrant Officer Rabie, what he knows about the
incident? He further tried
to create the impression that there may
have been other unknown persons involved with Steven, which he later
says he never told
the police.
[77]
The question that needs to be
asked is why would he do that? Was it because he knew that it would
have been impossible for one person
only to have committed these two
murders. In my view that could be the only plausible explanation,
which he used as a deflection
to exculpate himself from any further
involvement in the offence. It became apparent that on the objective
evidence, there was
no need for the accused to have accompanied
Steven to the house of the deceased, for the purpose of him going
there for work.
[78]
That fact is borne out by the
evidence and the version of the accused as well as the objective
facts surrounding this case. The
accused therefore accompanied Steven
to the place of the deceased for a different purpose. And as
correctly pointed out by the
prosecutor, that it would be highly
unlikely that Steven would have involved the accused, who would have
been a witness to the
incident, in the commission of the crime, if
the accused was not aware of it before the incident.
[79]
The conduct of the accused,
afterwards, more especially his further association with Steven; the
fact that Steven trusted him to
look after his house when he left for
Bloemfontein; the accused’s silence after the police came
looking for Steven; his attempts
to mislead the police and this
court; is not consistent with that of an innocent bystander who was
merely at the wrong place and
at the wrong time. These are all
objective facts from which inferences can be safely drawn. In
evaluating circumstantial evidence,
it is trite that a court has to
follow the guidelines as set out in
R
v Blom
1939 AD 188
at 202-203
which is that:
“
(1) The inference sought to
be drawn must be consistent with all the proved facts. If it is not,
the inference cannot be drawn.
(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.”
[80]
The only reasonable inference
that the court can draw from the surrounding facts and circumstances
as referred to above, is that
the accused had prior knowledge of the
incident and that he formed an association with Steven to commit
these offences. I say this
for the following reasons: it is clear
that Steven would have needed some assistance in order to have killed
two people because
if there was an attack on the one person, the
other one would have made alarm and could have easily called the
police for assistance,
so there had to be a simultaneous attack on
both the deceased.
[81]
If one has regard to the place
where the first deceased was attacked and the place where the second
deceased was attacked, such
a conclusion would not be illogical or
inconsistent with the probabilities. The first deceased was attacked
outside of the house
in the garage away from the second deceased who
was still in their bedroom. So, the one deceased had to be eliminated
outside of
the house while simultaneously the other one had to be
attacked inside the house.
[82]
A further indication on the
objective evidence that shows that there were two people involved,
was the fact that the deceased were
killed by different means and
different weapons were used when they were killed. It is clear that
the person that attacked the
first deceased used the panga and the
person that attacked the second deceased used a knife or sharp
object. The medical evidence
shows that the injuries that the first
deceased sustained was consistent with that of a panga and that the
injuries the second
deceased sustained was consistent with that of a
knife or sharp object.
[83]
The evidence clearly shows that
the panga was at a later stage found in the garage and it seems that
it was not removed from the
garage after the first deceased was
attacked with it. It is highly unlikely that if there was only one
person that attacked both
the deceased that, that person would have
gone through all the trouble to make use of two different weapons. I
agree with the prosecutor
that in all likelihood, it was Steven who
would have attacked and killed the second deceased and the accused
would have attacked
and killed the first deceased, given the fact
that when he arrived at the scene he immediately went to the garage,
where he was
hiding himself in order for the first deceased not to
see him.
[84]
I say this because if on the
version of the accused, it was genuinely the case that he went to the
premises of the first deceased
to go and work for him, one would have
expected him to be outside at the time when the first deceased came
out in order for him
to show the first deceased that he is there,
because he was called or requested to come and work for him. One
would have expected
Steven to have told the first deceased that he
had brought the accused with to come work for him. But rather
bizarrely the accused
goes into the garage and out of sight of the
first deceased.
[85]
The only inference that can be
drawn from this fact as said earlier is that the accused went to hide
himself in the garage because
he was not there to work for the first
deceased, but for a different reason, which was so that the first
deceased can be lured
into the garage by Steven in order for him to
attack him and keep the first deceased busy, while Steven would go
inside to the
second deceased. Whereafter Steven would have proceeded
firstly to force her to transfer the amount of R14 000,00 over
to
an FNB account in Lesotho.
[86]
This explains the rather
uncommon and nonsensical behaviour of his continued associated with
Steven afterwards. And why he accompanied
Steven to the bus station
in Mossel Bay, when Steven travelled to Bloemfontein. The reason for
this was because the accused had
an interest in Steven going to
Bloemfontein, which is very near to Lesotho after Steven had forced
the second deceased to pay an
amount of R14 000,00 in an FNB account
registered in Lesotho. This was the reason why the accused was in
continuous contact with
Steven and believed that he would still be
coming back. And as said earlier, this behaviour of his is not
consistent with that
of an innocent person, who wanted to
disassociate himself from Steven because of what he had done.
[87]
This also explains why no other
items except cell phones and small items, like a laptop computer and
tablet, were stolen from the
deceased. It was because they had
managed to steal a big amount of cash. It would also have been too
difficult for the accused
and Steven to have stolen other bigger
items from the premises of the deceased.
[88]
I therefore find the accused
version as to his involvement in the crime as not reasonably possibly
true.
[89]
In my view, this is the only
reasonable inference based on the facts and surrounding circumstances
of this case which the court
can come to. I therefore find that the
accused formed a common purpose with Steven to murder both the
deceased and rob them of
their possessions.
[90]
The further question to
consider was when the R14 000,00 was transferred from the bank
account of the deceased and the second deceased
was forced to do so,
whether robbery was committed. I have not been able to find in the
limited time at my disposal and with limited
resources at circuit
court, any case law in this country and I believe that there may not
be any that deals with robbery committed
under these circumstances.
[91]
The only comparison to money
having been stolen in this manner is to be found in situations where
theft had been committed of credit
or of money in an incorporeal
form. It is clear that the amount of R14 000,00 was not available in
a corporeal form when the second
deceased was forced to make an
electronic payment in an incorporeal form.
Burchell:
Principles of Criminal Law (4
th
ed)
at 690 under his
discussion of
Theft of
Credit
states:
“
If it is possible to steal
money in an incorporeal form, then clearly it is possible to steal
money in its credit form. This means
that it can be theft to deposit
dishonestly a cheque drawn on another person’s bank account, or
dishonestly to instruct a
computer to transfer money from one account
to another. Although there is no actual physical handling of the
money, the conduct
amounts to theft.”
Snyman:
Criminal Law (6
th
ed)
at 478 under the
sub-heading of
(d) Theft of
credit, including the unlawful appropriation of trust funds,
albeit
in a different context says the following about theft of an
incorporeal thing:
“
X commits this form of theft
if he steals money in the form of credit. In most cases the credit
has been entrusted to X with the
understanding that it is to be used
in a certain way, whereupon X then violates the terms under which he
is to use it by employing
it for some other purpose – usually
for his own advantage. What makes this form of theft so different
from other forms of
the crime is that X commits theft despite the
fact that what he steals is neither a corporeal thing nor does it
belong to somebody
else. It differs from the ordinary
principles governing theft to such an extent that it cannot be
accommodated under the
definition of the crime given above without
radically amplifying the ordinary meaning of the words.”
[92]
And further at page 493 under the sub-heading,
Theft of credit,
including the unauthorised appropriation of trust funds
:
“
(a)
General
The fourth form of theft,
namely theft of credit, will now be considered. This form of the
crime constitutes a particular way in
which money can be stolen.
No one will deny that money can be
stolen, and where X unlawfully takes cash (notes, coins) from Y’s
possession and appropriates
it to himself there is usually no
difficulty in regarding such conduct as theft: X here commits theft
by virtue of the general
principles applicable to the crime.
Notes and coins are, after all, corporeal property, and in this set
of facts X
is not the owner of the notes or coins.
The most obvious meaning of ‘money’
is corporeal notes or coins. However, ‘money’ may also
have a less obvious
and more abstract meaning, namely ‘credit’.
By ‘credit’ is usually meant a right to claim money from
a bank, because the bank is the owner of the money which is in the
bank, whereas the bank’s client only has a right to claim
from
the bank. In modern business usage cash is seldom used.
Money
generally changes ‘hands’ by means of cheques, negotiable
instruments, credit or debit entries in books, or registration
in the
electronic ‘memory’ of a computer. In cases one can
hardly describe the money in issue as tangible, corporeal
articles.
It would be more correct to describe it as ‘economic assets’,
‘an abstract sum of money’, ‘a
unit representing
buying power’, or (the word which will be used in the
discussion which follows) ‘credit’.”
(Emphasis added)
[93]
Therefore if the crime of theft, which is an essential element of the
crime of robbery can be committed in this manner, then
as a general
proposition where money in an incorporeal form is stolen (in the
broad sense) through the use of violence or threat
of violence, the
crime of robbery can be similarly be committed. With the further
proviso that such “
money”
is stolen by means of violence or the threat of violence to
constitute the crime of robbery.
[94]
On this basis, I am of the view that the crime of robbery can be
committed by the theft of an incorporeal thing through violence
or
force. It is therefore useful once again to have regard to the legal
definition of the crime of robbery.
Burchell
(supra)
at page
706 defines
Robbery
as “
Robbery consists
in the theft of property by intentionally using violence or threat of
violence to induce a person to submit to
the taking of the property.”
[95]
On the basis of this analogy and in coming back to the facts in this
case, in my view, what Steven and the accused did was
to commit
robbery by means of the theft of money from the deceased by forcing
the second deceased to instruct the computer to transfer
money from
the deceased account to the Lesotho FNB account.
[96]
Even though there was no physical handling of the money, this, they
did by violent means. And even though the accused was not
present, he
formed a common purpose, to commit this robbery with aggravating
circumstances. The case against the accused has therefore
been proved
beyond reasonable doubt.
[97]
I therefore find the accused guilty on all four of the charges as set
out in the indictment, which includes the robbery with
aggravating
circumstances of the amount of R14 000,00 when the second deceased
had been forced by means of electronic banking to
pay over to an FNB
account.
________________
R.C.A
HENNEY
Judge
of the High Court
Coram
: HENNEY, J
Judgment
by : HENNEY, J
For
the State : Adv P. Van Der Vijver
Instructed
by :
The Office of the Public Prosecution
Western
Cape
For
the Accused : Mrs L Luterek
Instructed
by :
Legal Aid South Africa
Cape
Town Justice Centre
No.
60 Reserve Bank Building
CAPE
TOWN
Date(s)
of Hearing : 29 AUGUST 2017
Judgment
delivered on : 7 SEPTEMBER 2017