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[2014] ZASCA 26
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Benson v S (300/2013) [2014] ZASCA 26 (28 March 2014)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 300/2013
Not
reportable
In
the matter between:
LEEROY
BENSON
........................................................................................
Appellant
and
THE
STATE
...............................................................................................
Respondent
Neutral
citation:
Benson v the State
(300/13)
[2014] ZASCA 26
(28
March 2014)
Coram:
Ponnan,
Maya and Willis JJA
Heard
: 20
March 2014
Delivered
:
28 March 2014
Summary
:
Evidence – murder – confusing and contradictory –
conviction not justified.
ORDER
On appeal from:
Western Cape High Court, Cape Town (Griesel J and Dolamo AJ sitting
as court of appeal):
1 The appeal is
upheld.
2 The order of the
high court is set aside and the following is substituted therefor:
‘
The
conviction and sentence on the charge of murder are set aside.’
JUDGMENT
Willis JA (Ponnan
and Maya JJA concurring):
[1]
The appellant was arraigned before the regional court in
Somerset-West on a charge of murder. He was found guilty and
sentenced
to 12 years’ imprisonment, of which five years were
suspended on appropriate conditions, the magistrate having found that
there were substantial and compelling circumstances which justified a
departure from the prescribed minimum sentence provided for
in the
Criminal Law Amendment Act 105 of 1997
.
[2]
The appellant applied to the magistrate for leave to appeal against
his conviction only, which leave was granted. Although the
Western
Cape High Court (Griesel J and Dolamo AJ) dismissed the appeal, it
granted the appellant, on application, leave to appeal
further to
this court. The application for leave to appeal was supported by the
State. The appellant has been on bail throughout
the proceedings,
including the appeals. Bail was originally set at R500 but on
granting the appellant leave to appeal to this court
the amount was
increased to R1000.
[3]
It is common cause that Ricardo Andrews (the deceased) died at Goniew
Park, Villiersdorp either late at night on Friday, 6 October
2007 or
in the early hours of the morning on Saturday, 7 October 2007 as a
result of a head injury caused by the application of
a blunt object
to his skull with force. It is also common cause that both the
deceased and the appellant had attended a dance at
the community
hall, in the company of others, on the night in question. Alcohol had
been liberally consumed by those who attended
the event, including
the deceased.
[4]
Nehemiah Marthinus, a witness for the State, said that fights broke
out among ‘tjommies’ (friends) at this function.
There
were two of these fights, the second being a follow-up to the first.
The first fight took place outside the hall but within
the precinct
thereof, the second in a street nearby. Mr Marthinus said that the
deceased had been involved in both fights and that
his death ensued
as a result of the second. According to the admitted post mortem
report, there was a single injury to the head
of the deceased, from
which injury he died. Mr Marthinus had already consumed four quarts
of beer in the time immediately preceding
the fatal incident. Mr
Marthinus denied that he had been under the influence of alcohol.
[5]
Mr Marthinus described how the appellant had been sitting in a motor
vehicle outside the function for some time and had driven
off later
in the evening with one ‘Papskep’. This occurred after
the first fight had taken place. At this time Mr Marthinus
said that
he also left the party on foot. He continued to say in his evidence
that while walking along the road he encountered
an altercation
between the deceased and others and that there were about six or
seven persons who participated in this fracas and
that the appellant
who had, by this time, alighted from his motor vehicle, joined the
fray.
[6]
Mr Marthinus said that he saw the appellant hit the deceased once on
the head with a short, fat object that appeared to be black
in
colour, whereupon the deceased fell to the ground. He said the
instrument in question appeared to have been made of hard rubber
or
plastic. This contrasts with the allegation in the charge sheet that
a knobkierie had been used. Mr Marthinus, who had
last seen the
deceased lying on the ground said that he then departed from the
scene, together with the appellant, in the motor
vehicle. Mr
Marthinus said that Mr Lesley Dick drove off in his own vehicle. Mr
Lesley Dick, when testifying on behalf of the State,
said that he,
together with Mr Marthinus and the appellant, drove off in his, Mr
Dick’s, vehicle. Mr Dick did not see anyone
strike the blow to
the deceased’s head.
[7]
Ms Elmarie Jantjies, another State witness, who had also attended the
party, testified for the State, said that she had seen
the appellant
strike the deceased about three times. She described the instrument
as a ‘stok voorwerp’. She said that
she could not
describe precisely what type of object it was that the appellant had
used. According to Ms Jantjies, two of these
blows hit the deceased
on his head. She said that she and her friend Hema, (a reference to
Mr Marthinus), had tried to intervene
to prevent the appellant from
hitting the deceased but the appellant had successfully resisted
them.
[8]
The appellant, when he gave evidence said that Mr Marthinus had
struck the deceased on the head with a shifting spanner. The
appellant added that Mr Dick had joined in the assault on the
deceased by kicking him in the ribs. This version was at no stage
in
the trial put to Mr Dick.
[9]
After the appellant had closed his case, there had been an
adjournment. When proceedings resumed, the appellant had obtained
the
services of a different legal representative. The appellant’s
new legal representative applied for leave to re-open his
case in
order to call Ms Louise Louw in his defence. The magistrate acceded
to this request. In her evidence-in-chief, Ms Louw
said that Mr
Marthinus had hit the deceased on the head with what appeared to be a
shifting spanner. Under cross-examination, she
said that she had seen
the appellant hit the deceased. She contradicted herself on this
aspect. When she had initially been approached
by the police to tell
them what she had seen during the incident in which the deceased had
been killed, she had refused to do so.
She said then that she had
been under the influence of alcohol at the time when the deceased had
been assaulted.
[10]
There are discrepancies in the versions given by the State witnesses.
For example, Mr Marthinus and Mr Dick gave different
versions as to
how, precisely, the appellant had left the scene after the deceased
had received the fatal blow; Mr Marthinus described
the instrument
used by the appellant to hit the deceased as appearing to have been
made of hard rubber or plastic, Ms Jantjies
described it as
resembling a ‘stok voorwerp’. Ms Jantjies, unlike the
other State witnesses, made no mention of any
stones having been
thrown during the fights in question.
[11]
The backdrop to the scene where the killing of the deceased took
place presents a picture that was tense and fast-moving, exacerbated
by occurring during the diminished visibility of the night. It was
also an event at which young people had consumed vast amounts
of
liquor. Counsel for the State conceded that from the record it
could not be deduced who did what, to whom and when.
[12]
The magistrate unfortunately descended into the arena and even put
questions to the appellant about a statement which he had
made
shortly after his arrest which had not been adduced as evidence
during the State’s case. The appellant’s first
legal
representative in the early stages of the trial was clearly
inexperienced and failed to perform basic duties like putting
the
version of the appellant to the State’s witnesses. When the
appellant, for readily understandable reasons, had appointed
new
counsel and sought an opportunity to cross-examine the State’s
witnesses, inter alia, for the purpose of testing the
appellant’s
version against this, the magistrate disallowed this. The fact that
the appellant was denied a procedurally fair
trial might, in itself,
have justified the intervention by this court in respect of the
conviction. It is fortunately not necessary
to make any firm finding
in that regard.
[13]
The primary difficulty for the State, as counsel on its behalf fairly
and correctly conceded in this court, lies in the evidence
itself. It
was confused and, on the essential elements of the crime,
contradictory. When the evidence is viewed in its totality,
there is
too much uncertainty surrounding the critically important facts to
allow a court safely to convict and, for this reason
alone, the
conviction cannot stand.
[14]
The order of this court is the following:
1 The appeal is
upheld.
2 The order of the
high court is set aside and the following is substituted therefor:
‘
The
conviction and sentence on the charge of murder are set aside.’
N P WILLIS
JUDGE
OF APPEAL
APPEARANCES:
For
the Appellant: R Kassel
Instructed by:
Kassel Sklaar Cohen
& Co, Cape Town
c/o Symington &
De Kock, Bloemfontein
For
the Respondent: S F A Raphaels
Instructed by:
The Director of
Public Prosecutions, Cape Town
c/o The Director of
Public Prosecutions, Bloemfontein