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[2014] ZASCA 82
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Prinsloo v S (525/2013) [2014] ZASCA 82 (4 June 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 525/2013
Not
reportable
In the
matter between:
JACOBUS
MICHAEL
PRINSLOO
........................................................................................
Appellant
and
THE
STATE
...........................................................................................................................
Respondent
Neutral citation:
Prinsloo
v S
(525/2013)
[2014] ZASCA 82
(4 June
2014)
Coram:
BOSIELO,
THERON and WALLIS JJA.
Heard
:
16 May 2014
Delivered
:
4 June 2014
Summary:
Criminal law – murder –
conviction on evidence of accomplice – appeal dismissed
ORDER
On
appeal from:
North Gauteng Pretoria
High Court (Mavundla J sitting as court of first instance):
1.
The appeal against the appellant’s
convictions of theft on count 1 and of contraventions of the Firearms
Act on counts 3 and
4 succeed and his convictions and sentences on
those counts are set aside.
2.
The appeal against the appellant’s
conviction on count 2 of murder and sentence of 25 years’
imprisonment is dismissed.
JUDGMENT
Wallis
JA (Bosielo and Theron JJA concurring)
[1]
On the morning of Monday 12 October 2009
Mrs Cordelia Prinsloo was murdered. She was watering the flowers
outside her home in a
large rondavel at plot 63 Buffelsdrift, outside
Pretoria, when she was struck several times on the back of the head
with a spade.
The perpetrator of the murder was one Lucas Moloi. The
issue in this case is whether Mr Moloi acted in accordance with an
agreement
between him and Mrs Prinsloo's former husband, Mr Jacobus
(Kobus) Prinsloo, who is the appellant. In the North Gauteng High
Court
Mavundla J, after a lengthy trial, held that Mr Prinsloo had
arranged with Mr Moloi to kill his wife. He accordingly convicted Mr
Prinsloo of the murder and sentenced him to 25 years imprisonment. At
the same time he convicted him of theft of Mrs Prinsloo’s
firearm and 11 bullets and related offences under the
Firearms
Control Act 60 of 2000
. The sentences on those counts were to run
concurrently with the sentence on the count of murder. The appeal is
with his leave.
The conviction on the main count must be addressed
first.
[2]
Mr Moloi pleaded guilty, was convicted and
sentenced to 18 years imprisonment. He was the principal witness
against Mr Prinsloo.
His version was relatively simple. He met Mr
Prinsloo, who is a geologist by profession, whilst working as a
security guard. He
was dissatisfied with his conditions of employment
and sought employment with Mr Prinsloo. That employment commenced in
June 2009
as a gardener. There is some difference between Mr Moloi
and Mr Prinsloo concerning the precise circumstances of his
employment,
but nothing seems to turn on that.
[3]
Plot 63 is a large piece of land, some 9
hectares in extent, on which there is not only a substantial house,
together with outbuildings,
but a large rondavel. Notwithstanding the
divorce Mrs Prinsloo continued to live on the property in the
rondavel. It was a term
of the divorce agreement that the property
would be subdivided and she would receive a piece of land some four
hectares in extent
where, according to the evidence, she hoped to
build her dream-house. Mr Prinsloo did not live on the property
during the week,
but lived in a semi-detached house in Montana, which
is in or near Pretoria. His two sons were boarders at a local school
and would
spend weekends with their father in the main house on the
property. That would also give them the opportunity to see their
mother.
The relationship between Mr and Mrs Prinsloo was, however,
strained and they had little communication with one another. They
were
in dispute over the implementation of the divorce settlement
agreement and, in particular, the sub-division of Plot 63.
[4]
Mr Moloi testified that shortly before the
murder Mr Prinsloo asked him whether he would like to earn some money
and offered him
R50 000 and a house if he did a job for him. The
nature of the job was to kill his ex-wife. He agreed to undertake
this task, the
amount involved being enormous for someone in his
position. He said that Mr Prinsloo told him to cut a hole in the
security fence
round the property and then to lure Mrs Prinsloo to
that spot on the pretext of pointing out the hole, where he should
kill her
using some implement on the property. He was told not to use
a gun because that might attract the attention of the neighbours. Mr
Moloi cut a hole in the fence on 9 October, but it was detected the
following evening on a routine patrol by a security firm operating
in
the area and the hole was repaired.
[5]
The Prinsloos were very security conscious
and carefully controlled access to the property. Mr Moloi said he
went to the property
early on Monday 12 October 2009. In accordance
with practice he sent a 'please call me' sms message to Mr Prinsloo,
who in turn
sent a message to Mrs Prinsloo. Mr Prinsloo said that the
procedure was for him to send a one word message (the word ‘hek’
meaning ‘gate’) to Mrs Prinsloo and unless he received
some message from the person waiting at the gate that it had
not been
opened, he would assume that she had opened it and let the person in.
[6]
This procedure was followed by Mr Moloi and
Mr Prinsloo on Monday 12 October 2009. It appears that Mrs Prinsloo
must have opened
the gate to let Mr Moloi in. He found her watering
the flowers wearing her pyjamas. She asked him to fetch a spade. He
did so and
when, on his return, he found her with her back to him,
struck her twice on the back of the head and once on the shoulder
killing
her. He then wrapped her body in plastic, dragged it to a
spot some 30 metres away from the rondavel, covered it with a
tarpaulin
and with the leaves of the delicious monster plant, thereby
concealing it. He did not have much time in which to do this because
the domestic worker Mrs Shongwe was due to arrive at about 8.30 am.
[7]
Mr Moloi spent the rest of the day on the
property but, according to Mrs Shongwe, his behaviour was peculiar
and she formed the
view that he might have stolen something from the
house. She was also concerned because there was no sign of Mrs
Prinsloo, although
her car was in the garage and the radio in the
rondavel was playing all day. These concerns caused her to telephone
Mr Prinsloo
in the afternoon and he agreed to come to the property
that evening. This he did probably between 5 and 6 pm (the exact time
is
not relevant). According to her he reassured her that he would
speak to Mr Moloi and warn him to remain in his quarters that evening
on the grounds that there were going to be security patrols in the
area that night. Mr Moloi’s quarters were outside the
property
and he had no direct means of access. He also looked around the
property briefly in response to her concerns about Mrs
Prinsloo but
said he found nothing. He did not, however, try to enter the
rondavel, either alone or together with Mrs Shongwe,
or endeavour to
ascertain why the radio was playing and whether Mrs Prinsloo was
there or had perhaps had an accident or fallen
ill.
[8]
Both Mr Moloi and Mr Prinsloo testified
that on the same evening Mr Prinsloo went to Mr Moloi’s
quarters and gave him R500.
Mr Moloi said that this was to enable him
to get away from the scene of the crime, while Mr Prinsloo said that
it was to enable
Mr Moloi to pay for his girlfriend to return to the
Free State for medical treatment. I will revert to this in due
course. What
is undoubtedly so is that Mr Moloi left the following
day and returned to the Free State. He was ultimately arrested in
Welkom
where he was found in possession of Mrs Prinsloo’s
‘moonbag’, and her firearm and the 11 bullets that formed
the subject of the charges under the
Firearms Control Act.
[9
]
The further narrative is taken from the evidence of Mrs Shongwe and
Mr Prinsloo. On the Tuesday morning early he returned to the
property
to collect his golf shoes and some clothes for his sons. Mrs Shongwe
reiterated her concerns about Mrs Prinsloo and he
told her that he
would return after he had finished playing golf. There was still no
sign of Mrs Prinsloo, her car was still there
and the radio was still
playing.
[10]
Later that afternoon, around dusk, Mr
Prinsloo returned. The situation remained unchanged. He accordingly
went to the rondavel with
Mrs Shongwe but did not enter. Mr Prinsloo
gave as his reason for not doing so that he was subject to a domestic
violence protection
order. They did, however, use a stick to push the
curtain in one window aside, and could see that Mrs Prinsloo’s
bed was
unmade and heard the radio playing. Of Mrs Prinsloo there was
no sign.
[11]
Mr Prinsloo did not investigate further but
started to make some phone calls. First he telephoned his son
to ascertain whether
he had received a message from his mother that
she was going to be away. Apparently Mrs Prinsloo was a freelance air
hostess and
on occasions undertook trips to various parts of Africa.
When she did so it was her practice to inform her son by sms that she
would be away. However, the son had not received any message from
her. Mr Prinsloo then asked his son to obtain a telephone number
for
one of Mrs Prinsloo’s friends and, once he had the number,
telephoned the friend to ascertain whether she knew if Mrs
Prinsloo
had gone away. When that drew a blank he telephoned one or two
airlines that he knew employed her but again without success.
He then
telephoned Mrs Prinsloo’s attorney who suggested that he get
the police and enter the rondavel in their company.
[12]
Mr Prinsloo accepted this advice and went
to the local police station. There, after some delay, the nature and
cause of which has
no bearing on the case, he obtained the services
of three policemen who accompanied him back to the property. They
went to the
rondavel and it turned out that the door was unlocked
because Mr Prinsloo simply opened it. There was no sign of Mrs
Prinsloo,
or of anything missing in the office in the house, where
Mrs Prinsloo sometimes worked. The policemen did not search the
property
but left after about an hour. According to Mr Prinsloo he
also left the property and went to collect some large flashlights
from
his home in Montana. Having done so he returned late that
evening and searched until the flashlight batteries failed. He stayed
on the property that night sleeping in the house.
[13]
The following morning Mr Prinsloo decided
to search by exiting the property and walking round the perimeter.
When he came to the
Western side he smelled rotting flesh, with which
as a big game hunter he was familiar. He then re-entered the property
and went
to the spot where the smell emanated from where he saw
something wrapped in plastic and concealed under plants, but with a
leg
protruding. This was at a spot about 30 metres away from the
rondavel. He then went and told Mrs Shongwe that Mrs Prinsloo was
dead and, having done so, went and reported his find to the police.
[14]
The police came to the property and Mr
Prinsloo showed them where the body lay hidden. A pathologist Dr van
der Nest arrived at
around 11 am. Until then the body was not
disturbed. It was then unwrapped and seen to be in an advanced state
of decomposition
in the head and neck region. Mr Prinsloo was not
present when this occurred. There was a mass of flies around the
body. Dr van
der Nest said that it was impossible from an external
inspection to see what the cause of death had been beyond saying that
it
involved some kind of head injury. That was confirmed by Sergeant
Roets of the South African Police Service, who was present. She
arranged for the body to be removed to the mortuary where an autopsy
was performed that confirmed Mr Moloi’s description
of the
manner in which he had killed Mrs Prinsloo.
[15]
One other event of importance occurred on
that day. Mr Prinsloo had remained at the property during the morning
although he had
stayed away from the police activity in the vicinity
of the body. He left at about lunchtime to go and fetch his sons from
school
and tell them what had happened to their mother. While driving
away from the plot he met a vehicle or vehicles coming in the
opposite
direction carrying Mrs Prinsloo’s family, who had been
told of her death. They stopped and a brief discussion took place.
In
the course of this Mrs Prinsloo’s mother asked whether she had
suffered. Her son in law, Mr Schoonraad, testified as follows
in this
regard:
‘
Mnr
Prinsloo het ons ingelig dat nee, sy sou geen lyding gehad het nie en
hy het gesê want sy is agter die kop soos wat jy
ʼn haas
een hou slaan, morsdood slaan is sy geslaan.’
When
he gave this answer he illustrated it with a chopping motion of his
hand. This conversation was confirmed by Mrs Le Roux, the
deceased’s
sister and Mr Prinsloo accepted in his evidence that he had so
described his former wife’s death.
[16]
It will be apparent from this narrative of
events that the real area of dispute at the trial was whether Mr
Moloi was telling the
truth when he said that Mr Prinsloo asked him
to kill his former wife in return for a substantial reward, or
whether Mr Prinsloo’s
denial that anything of the sort had
occurred was to be accepted. In this regard the trial court correctly
accepted that Mr Moloi
was both an accomplice on his own version and
a single witness. Accordingly his evidence had to be approached with
due caution
and corroboration for it had to be sought in other
admissible evidence. Having done so the court below believed that he
was telling
the truth. It recognised, however, that this was
insufficient on its own to warrant a conviction. The accused bore no
onus to prove
his innocence and provided his version of matters could
reasonably possibly be true he was entitled to his acquittal. The
court
below considered that Mr Prinsloo’s evidence that he had
nothing to do with the deceased’s death and had not procured
Mr
Moloi to kill her, could not be believed. Hence the conviction on the
main count.
[17]
Mr Moloi’s description of events was
simple and straightforward. The one area in which he was shown not to
be telling the
truth related to the circumstances of his arrest where
for some inexplicable reason he denied that he had tried to escape,
when
the contrary was true. Apart from that there was no obvious flaw
in his evidence. His tale of how he killed Mrs Prinsloo was confirmed
by the post-mortem examination. In regard to three matters there was
important corroboration. First he testified that he had been
told to
cut a hole in the fence as a device to lure Mrs Prinsloo to a place
where he could kill her. Such a hole was cut and he
left a ladder
outside the property. That is what was discovered when the security
officer discovered the hole. There is nothing
to suggest that Mr
Moloi would have devised so complex a plot of his own volition or
that having had it thwarted he would not have
resorted to some other
stratagem. Second there is the important feature that Mr Prinsloo
visited him on the night of the murder
and gave him R500. That was
common cause. Third there is the fact that Mr Prinsloo testified that
he had spoken to Mr Moloi telephonically
on Tuesday afternoon and Mr
Moloi had undertaken to return to the property if Mr Prinsloo would
send him the money to do so. Had
he been a murderer on the run from
the law that is highly unlikely. One final feature is that there was
no apparent advantage to
him in falsely incriminating his previous
employer as he had already been convicted and sentenced and no
advantage in terms of
a reduced sentence was available from his
giving false evidence.
[18]
There was accordingly sufficient reason for
the trial court to believe Mr Moloi. But that, on its own, was
insufficient. Were there
proper grounds for disbelieving Mr Prinsloo?
In my view there were.
[19]
First there was the encounter with Mrs
Prinsloo’s family on the day her body was discovered. Mr
Prinsloo’s graphic description
of how she had met her death
coincided precisely with that of Mr Moloi and the results of the
autopsy. But he was unable to explain
how he could have known that at
the time. Even Dr van der Nest was unable to say what had caused her
death or where the blows had
landed or whether the initial blow had
been fatal. She could not tell whether Mrs Prinsloo had been
restrained before her death
or had in some other way been terrorised
before the fatal blow was inflicted. Nor could anyone else. Yet Mr
Prinsloo, who had not
even seen the body unwrapped, was able to give
this precise description to her family within three hours of Dr van
der Nest having
arrived at the property. His explanation that he had
been told this by an unidentified female police officer at the scene
was not
credible. If Sergeant Roets, who watched the body being
unwrapped, could say no more than that the head was misshapen no-one
else
could have given a more accurate description.
[20]
Second there is the explanation for handing
Mr Moloi R500 on the night that the murder took place. Mr Prinsloo
said that there had
been a prior agreement that he would lend the
money to Mr Moloi, but no arrangements had been made for the money to
be handed over.
However, the reason he went to the property that
evening was not, on his version, to hand the money over to Mr Moloi,
but because
of Mrs Shongwe’s concerns about Mr Moloi’s
strange behaviour that day and Mrs Prinsloo’s absence. It would
be
a remarkable coincidence for him at the same time to remember an
earlier commitment to lend money to Mr Moloi and to hand over the
money. It would be an even more remarkable coincidence that his
having done so for an entirely different reason should coincide
with
the murder and facilitate Mr Moloi’s flight.
[21]
The third problem lies with Mr Prinsloo’s
explanations for his behaviour on the Monday and Tuesday. He went to
the property
on Monday afternoon to be told that Mrs Prinsloo had not
appeared although her car was in the garage and the radio was playing
in the rondavel and had been doing so the whole day. The obvious
inference was that Mrs Prinsloo might have fallen ill or had some
kind of attack that had incapacitated her and required medical
assistance. Even an estranged husband’s natural response would
be to investigate but he did not do so. His conduct becomes even more
peculiar the following morning when he was told by Mrs Shongwe
that
matters were unchanged and without even the most cursory
investigation or even calling out Mrs Prinsloo’ name he
collected
his golf shoes and went off to play golf. He only made some
investigation that evening and even then it was of the most cursory.
[22]
To make matters worse Mr Prinsloo had
telephoned Mr Moloi on the Tuesday afternoon and learned that he was
at President Brand, a
gold mine near Welkom in the Free State. Yet
after the body was discovered and at a time when he said he suspected
that Mr Moloi
was the murderer he did not give this evidence to the
police. Indeed he commenced an interview with the police and
furnished them
with a mobile phone number, but then excused himself
on the grounds that he had to go to the mortuary to identify the body
of his
former wife. He undertook to return, but did not do so, and
when the police contacted him he told them that his attorney had
advised
him not to speak any further with them. For an innocent man
this was extraordinary behaviour.
[23]
The fourth point that bears directly on Mr
Prinsloo’s credibility arose on 21 October. Mr Schoonraad and
some of the police
had gone to the property to open a safe in the
rondavel. After this had been done they were walking to various
places on the property
and Mr Prinsloo was accompanying them.
Suddenly Mr Prinsloo stopped at a point on the path they were taking,
bent down and lifted
a cover from a drain or something similar and
told the police and Mr Schoonraad, that Mr Moloi had intended to hide
the body there,
but had been put off doing so by finding a snake skin
inside the drain when he lifted the cover. This evidence was not
challenged
and there is simply no explanation for it unless Mr
Prinsloo had been told that by Mr Moloi. That could only have
occurred on either
the Monday evening or in the telephone call on the
Tuesday afternoon. In either event it demonstrates guilty knowledge
of the murder
before the body was even discovered. It is incompatible
with Mr Prinsloo’s protestations of innocence.
[24]
For those reasons I am unable to fault the
trial court’s assessment that Mr Prinsloo evidence could not be
accepted. I reach
that conclusion without paying any regard to the
evidence that was challenged at the trial and in this court as
inadmissible hearsay.
The appeal against the conviction of murder
cannot succeed. While there was a submission that the sentence of 25
years imprisonment
was excessive and disproportionate to that imposed
upon Mr Moloi I am not persuaded that the sentence imposed by the
judge was
infested with any misdirection or induces a sense of shock.
The appeal against sentence must also be dismissed.
[25]
As regards the appeal in relation to the
other three counts they can be disposed of shortly. It was argued
that Mr Moloi may have
stolen the ‘moonbag’ and the
firearm and bullets without any participation from Mr Prinsloo. His
version was that Mr
Prinsloo had given it to him on the evening of
Monday 12 October, and I think that is the more probable version.
However, that
would have required Mr Prinsloo to make his way
surreptitiously into the rondavel without Mrs Shongwe seeing him do
so. I am persuaded,
and the State accepted, that it cannot be said
beyond reasonable doubt that he did so. In those circumstances the
conviction of
theft on count one cannot stand and that means that the
convictions on counts three and four under the
Firearms Control Act
must
also succeed.
[26]
The order I make is the following:
1.
The appeal against the appellant’s
convictions of theft on count 1 and of contraventions of the Firearms
Act on counts 3 and
4 succeed and his convictions and sentences on
those counts are set aside.
2
.
The appeal against the appellant’s
conviction on count 2 of murder and sentence of 25 years’
imprisonment is dismissed.
M
J D WALLIS
JUDGE
OF APPEAL
Appearances
For appellant: L S DE KLERK SC
Instructed
by: Rynhardt Kruger Attorneys, Pretoria
Honey
Attorneys, Bloemfontein
For
respondent: N P Marriott (with her M Marriott)
National
Director of Public Prosecutions, Pretoria.