S v Rautenbach (SS 40/2006) [2021] ZAGPJHC 349; [2021] 2 All SA 206 (GJ); 2021 (2) SACR 18 (GJ) (7 January 2021)

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[2021] ZAGPJHC 349
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S v Rautenbach (SS 40/2006) [2021] ZAGPJHC 349; [2021] 2 All SA 206 (GJ); 2021 (2) SACR 18 (GJ) (7 January 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:  SS 40/2006
(1)
REPORTABLE:
YES
(2)
OF INTEREST TO OTHER JUDGES:
YES
(3)
REVISED.
YES
24
December 2020
THE
STATE
V
RAUTENBACH,
JUSTIN PIERRE
Appellant
JUDGMENT
SPILG,
J:
INTRODUCTION
1.
This is an appeal from the judgment of Vally J. The judgment is
reported as
S v Rautenbach
2014(1) SACR 1 (GSJ).
2.
The
appellant was charged with five offences. He had pleaded guilty only
to the unlawful possession of cannabis and methaqualone
(mandrax). He
was subsequently convicted on all the other charges; namely, on count
1 to the murder of his father, on count 2 for
theft
[1]
and on counts 3 and 4 for the unlawful possession of a firearm and of
ammunition.
3.
The trial judge imposed an effective sentence of 18 years’
imprisonment, with a further 6 months’ imprisonment
suspended
for five years on the usual conditions.
The
major portion of the sentence, that of 16 years’ imprisonment,
was imposed for the murder. The additional two years is
made up of
eight years for the theft, six of which was ordered to run
concurrently with the main sentence. The four years’

imprisonment in respect of both the possession of the firearm and
ammunition were all ordered to run concurrently with the main

sentence. An additional suspended sentence was imposed in respect of
the illegal substances offence.
4.
The case arises from the death of the appellant’s father on the
night of 18 December 2011. His body was found in
the garage of their
house. The deceased had been shot with his own .303 rifle. The bullet
passed through the palette in an upward
trajectory which meant that
the barrel of the rifle was in the deceased’s mouth when the
shot was fired.
5.
That same evening, and after the shooting, the appellant was found in
possession of his father’s car in which was
strewn bed linen
and clothing belonging to the deceased. Four rounds of shot gun
ammunition were found in the cubbyhole of the
car. 1.1 grams of
cannabis and mandrax was also found at the house, being the illegal
substances which he admitted to possessing.
6.
The main issue in respect of the murder charge was whether the cause
of death arose from the bullet wound and if so whether
the deceased
had placed the rifle there himself and taken his own life or whether
the appellant had killed him.
LEAVE
TO APPEAL
7.
On 8 April 2014 the Registrar of the Supreme Court of Appeal
forwarded an email to the parties attaching a copy of the
order he
signed and which had been granted by Theron JA (at the time) and
Salduker JA in terms of which the appellant was granted
leave to this
court to appeal “
against convictions in count 1 and count
2”.
The appellant therefore believed that leave had only be
granted in respect of the convictions for murder and theft and on
that assumption
filed his heads of argument of 27 March 2019.
8.
On receipt of the appellant’s heads
Mr. Gcaba
for the
State informed
Mr. Guarneri
who represents the appellant that
he was in possession of another order also signed by the Registrar on
same date; i.e., 8 April
2014 save that it differed from the first in
two respects; it was granted by Theron JA and Swain AJA and it
granted leave “
against count 1 and count 2”
.
9.
Mr. Gcaba did not file heads in respect of sentence and attached to
his heads of argument two communications both dated
8 April 2014
signed by the Registrar of the SCA. Both referred to the grant of the
application “
as per attached order”.
Attached to
the first was the order granted by Theron JA sitting with Salduker JA
Attached to the other identically worded letter
was the other order
also signed by the same registrar handed down by Theron JA and Swain
AJA.
10.
In his comprehensive set of heads on conviction Mr. Gcaba accepted
that the orders “
were granted on 4 April 2014 albeit by
different Judges”
but submitted that the latter order
granting leave did not specify whether it was on conviction or on
sentence and assumed that
it was to be interpreted by reference to
the other order and therefore meant that the application was
successful in respect of
conviction only.
11.
After being apprised of the second order Mr. Guarneri on behalf of
Legal Aid, and who has represented the appellant throughout
the
proceedings, sough clarity from the Registrar of the SCA as to which
was the correct order. While it is evident that the appellant
must be
given the benefit of an order which grants leave in respect of
conviction (unless the error was one of transcription by
the
Registrar) the difference between the two affects whether the
appellant is only entitled to argue the conviction or whether
he can
also argue sentence if he does not succeed on setting aside the
conviction.
12.
Initially the Registrar of the SCA replied “
The order is
correct as it was made by the Judges. There was no error”
.
Unfortunately,
the Registrar did not state whose order he was referring to. In order
to obtain clarity Mr. Guarneri wrote back indicating
that he was not
asking for a variation, only to establish which of the two orders is
the correct one. In an email of 29 April 2019,
the Registrar advised
that “
The
Prayers as per notice of motion is what was asked for
”.
As is usually the case, unless new issues are raised, this court is
not provided with the petition to the SCA- it will
only have the
application for leave to appeal brought before the trial judge. The
application for leave to appeal had been made
from the bar, the
transcript of which, including Vally J’s dismissal of the
application, revealed that the application was
in respect of both
conviction and sentence
[2]
.
In
preparing for the appeal, we had assumed that the petition would have
followed the same course and covered sentence as well.
However, in a
supplementary set of heads dated 20 May 2019 Mr. Guarneri informed
the court that the notice of motion to which the
Registrar of the SCA
referred did not cover sentence
[3]
but that the body of the petition contained a distinct section of
seven paragraphs, at pp15 to 16, headed “
Ad
Sentence”.
13.
The question of whether this court could entertain the appeal in
respect of sentence therefore remained, as Mr. Guarneri
impressed on
us, that there had been no enquiry to resolve the ambiguity between
the notice of motion and the contents of the affidavit,
which
inter
alia
referred to the length of time the appellant was in custody
pre-conviction and the imposition of a sentence of 18 years’
imprisonment for non-premediated murder. Although the notice of
motion was cast in error when considered in light of the distinct

submissions made under the “
Ad sentence
” heading,
this court was concerned that the Registrar’s last
communication was unambiguous and that only the order
sought in the
notice of motion for leave to appeal - in respect of the count of
murder and of theft- had been granted.
14.
The Registrar’s notifications however showed that the SCA did
not consider that a petition on sentence had been
brought before it.
That being so, it could not be said that the SCA had refused leave on
sentence as it had not been expressly
asked to in the notice of
motion.
15.
Since the issue of whether this court sitting on appeal is empowered
to consider the question of sentence pursuant to
a petition to the
SCA is determined within the four-corners of the
Superior Courts Act
no 10 of 2013
and not under any inherent power Mr. Guarneri
considered it prudent to make further enquiries with the Registrar of
the SCA and
if need be to submit a fresh petition in respect of
sentence.
16.
Since the record is some 1500 pages long, we retained the matter. The
Registrar of the SCA indicated that a dedicated
application for leave
to appeal sentence would have to be brought together with an
application for condonation. Both condonation
and leave to appeal
sentence to the Full Court on all counts were granted by the SCA. The
appeal was again set down for hearing
before us and argument
presented on both conviction and sentence.
GROUNDS
OF APPEAL
17.
The appeal on conviction in respect of the murder charge attacks the
judgment on a number of grounds. They included that
the trial court
refused to allow the reception of vital evidence, that there was only
circumstantial evidence linking the appellant
to the death of the
deceased and that this was insufficient to allow a finding that there
was not another reasonable explanation
accounting for the deceased’s
death. The appellant also attacked the credibility findings in
respect of two of the main witnesses
and the finding that after the
incident blood and whitish substances were visible on the appellant’s
chest, the substances
being identified as fragments of bone or brain.
While
it is correct that findings are to be made based on circumstantial
evidence, they are also based on the appellant’s
own testimony
which, I intend demonstrating, turns out to be most damning against
him.
18.
Although Adv. Guarneri offered no submissions either in his heads of
argument or in court as to why the conviction for
theft was wrongly
decided he did not expressly abandon that leg of the appeal.
It
is nonetheless incumbent on us to discern the grounds on which it was
considered that there were prospects of success in respect
of the
theft conviction.
19.
The grounds of appeal against the sentence imposed are based both on
an alleged error in law, in that a court must give
reasons if it is
to exceed the minimum sentence for the specific offence, and that the
one year and four months spent in custody
pre-conviction should have
been taken into account with all other factors as amounting to
mitigating circumstances. Finally, it
is argued that the cumulative
effect of the sentences induces a sense of shock.
20.
There is a fundamental consideration which must be taken into account
when considering the grounds of appeal raised. It
is the acceptance
by the appellant’s counsel of the trial court’s findings
that the appellant was not candid and that
his evidence cannot be
accepted. Vally J said the following;
“
Most of his
evidence was manufactured for the purpose of rebutting any evidence
of the State that he believed was supportive of
the State’s
case. He also did this on a piecemeal fashion and in so doing he was
unable to avoid the pitfalls of self-created
confusion”
The
judge then gave two clear illustrations. I have gone through the
record twice and also found it necessary to repeatedly revisit

certain aspects and in particular the evidence of the person who was
with the appellant that evening, and who I will refer to as
Freda.
This is because the appellant’s evidence in court did not make
sense in relation to what had been put to Freda, what
was not put to
her and what parts of her evidence were never in issue or became
distorted during the appellant’s testimony.
In
this regard it does not lie in the appellant’s mouth to contend
that he or his counsel had overlooked something material
when Freda
was cross-examined: At what may aptly be described as past the
eleventh hour, since Mr Guarneri was already arguing
for a discharge
at the end of the State case, he successfully applied to re-open the
cross-examination of Freda in order to deal
with everything that had
inadvertently been omitted and was required to be put to her. During
argument for re-opening the cross-examination
Mr Guarneri provided
the court with a full list of questions that still needed to be dealt
with in relation to Freda’s cross-examination.
NON-RECEPTION
OF HEARSAY AND OPINION EVIDENCE
21.
Looming large in the submissions made by the appellant is how the
trial court, in applying s 3(1)(c)(iv) of the Law of
Evidence
Amendment Act no 45 of 1988 (Evidence Amendment Act), dealt with the
admission or rejection into evidence of the following
hearsay
evidence;
a.  Evidence of
attending doctors, Drs. Diova and Modise, that the deceased was
suffering from depression and that he had told
Diova that he felt
suicidal.
The
statement about feeling suicidal was made on 27 January 2010, which
was almost two years before the incident. Moreover, Diova
had found
the deceased to be emotionally stable at the time and put him on a
course of Brazipam tablets which she said was sufficient
to help him
overcome his condition.
The
trial court had disallowed the admission of this testimony on the
grounds that it would be of “
little
probative value when considering the events two years later when the
deceased was shot”
[4]
b.  The further
evidence of Mrs Newcombe who said that the deceased had told her
that;
i.He would never
take the appellant’s life but was able to take his own;
The
trial court considered that this evidence was of little or no value
in determining what happened on the night in question. The
statement
would have been made at least 9 months before the incident. The court
considered
inter alia
that much had occurred in the interim
“
and neither she nor anyone else had heard him repeat the
statement”
. The court
a quo
was also of the view
that “
the statement was meant to indicate his affection for
the accused
”.
The
judge therefore held that the probative value was so low that it
would not be in the interests of justice to admit it.
[5]
ii.He was
depressed about the children from his late wife threatening to take
the house
This
statement had been made in March 2011 whereas the appellant had
testified that at the time of the incident, and for some time
before
then, the deceased had secured the contractual rights to remain in
the house until he died.
The
trial court therefore considered that this evidence was valueless.
c.  That part of
Peggy’s evidence in which she said that the deceased told her
that;
i.he refused to
see a psychiatrist
ii.if his car was
damaged then “
I might as well blow my brains out”.
This was allegedly said on the morning of 18 December 2011.
The
court refused to admit the evidence on the grounds that it had
minimal if any probative value.
This
conclusion was based on all the other evidence of what occurred that
day. The court found that there was no evidence demonstrating
that on
the deceased’s return home on the fateful day that he had
become so desperate that suicide was the only way out.
[6]
22.
The line drawn by the court, as the reception of hearsay evidence,
was determined by reference to whether its probative
value (being one
of the considerations to be taken into account by reason of s 3(1)
(c)(iv) of the Evidence Amendment Act) was
such that  the
“
quality of the hearsay evidence and the extraneous
reliability guarantors make it imperative that
(it)
be
admitted”.
This was an extract cited from
S v Ndhlovu
and others
2002 (6) SA 305
(SCA) at para 52
23.
In my respectful view as much as there exists the danger of
procedural prejudice to which Cameron JA (at
the time) referred in
Ndhlovu
,
so too, once our law recognises that an essential underpinning to
accepting hearsay evidence is based on its reliability, there
are
dangers in
isolating pieces of evidence to determine their
probative value or relevance. The danger is that they may turn out to
be rationally
connected to a broader set of dynamics with which the
case is concerned and against which a court is required to test the
soundness
of inferential reasoning during the fact-finding process.
24.
As appears
from cases such as
Ndhlovu
at para
45
[7]
and
S
v Saat
2004(1)
SA 593(W) at 93E-F (para 4 of judgment), determining the probative
value of evidence involves a consideration of its reliability
and
what it is intended to prove if admitted
[8]
.
In application they appear to be inseparable.
25.
However, admissibility of a hearsay statement based on reliability is
distinct from determining the weight it will ultimately
be given- or
put another way, the relative value it is to be given. Weighing
evidence does not determine admissibility whereas
determining the
reliability of a hearsay statement acts as one of the gatekeepers to
its reception into the pool of evidence which
a court is obliged to
consider.
26.
To conflate
the two would result in the exclusion of hearsay statements which
have probative value that may, for instance, explain
conduct or put
events that unfold
[9]
into
perspective. Reliability and contextual relevance are not the same
thing. At times it may be difficult to draw a clear distinction
since
relevance may creep into the issue of probative value because of the
second element relating to what the hearsay statement
is intended to
prove.
27.
In the present case there is a gunshot which must have been fired
after the muzzle of the rifle had been placed in the
deceased’s
mouth in an upward direction. That evidence is not inconsistent with
suicide. All other things being equal it
would support a suicide if
only because of the resistance that the victim is likely to put up
unless he or she was already immobilised,
if not already dead.
28.
Accordingly, evidence of the deceased suffering from severe
depression in the past or had actually contemplated or expressed
the
possibility of taking his own life, whenever that might have been, is
relevant since events at the time of the deceased’s
death may
be capable of triggering the same emotional response- and that cannot
be excluded because it indicates a certain premorbid
disposition.
29.
Peggy’s evidence regarding the deceased mentioning that he
might as well blow his brains out because of the appellant
having
taken his car and having done something to it cannot be excluded on
the basis that it does not fit the pattern of events
on the day. In
my respectful view that begs the very question the court was to
answer- namely is there evidence to support suicide.
The context in
which the words were uttered, whether they were used figuratively or
literally and whether it fits a pattern goes
to the weight to be
attached to it
30.
The evidence tendered meets the requirements of reliability: Although
hearsay, there are enough factors present, including
the statements
by treating doctors, that satisfy the test of reliability and
therefore all evidence in that regard should be admissible.
The
question of relevance, which was the ground for its rejection as part
of the pool of evidence which was to be considered, only
rears its
head at the weighing of evidence stage. At that stage one of the
factors to be taken into account is the deceased’s
actual
emotional disposition at the time of the event and how long it had
been since he displayed such tendencies. In my view the
evidence in
this regard was admissible and ought to be weighed together with all
the other admissible evidence placed before the
court in order to
make a factual finding as to whether the deceased had taken his own
life or not.
31.
In my respectful view a more holistic approach to the sum total of
what the witness had to say should be assessed. In
this regard it
should be recalled that the trial court found all the witnesses
barring the appellant to be reliable.
The
decision as to whether the evidence should have been admitted, in my
respectful view, ought to have regard to the post mortem
and the
ballistic reports. Neither of them could discount suicide as a cause
of death. This would satisfy the basic requirement
of reliability
allowing the testimony to be admitted into the pool of evidence which
the court was required to consider in order
to reach its factual
finding.
Once
received, the evidence can then be weighed together with all the
other evidence to determine its ultimate relevance and the

credibility of the witness in question. In application, there may
well be two stages where reliability is taken into account. The
first
is
prima facie
reliability where the credibility of the
witness cannot be taken into account because it would be premature to
do so at that stage.
The second is when all the witnesses have
testified and the court can determine both the veracity of the
witness’ testimony
and its overall reliability (such as the
witness’s faculty for recollection).
Since
an accused ought to know the evidence against him by the time the
State closes its case, a court may be obliged to determine

admissibility by then or at least indicate to the accused that it is
being admitted provisionally (the admissibility of certain

documentary evidence comes to mind). That being so a final decision
to exclude hearsay evidence at the end of the State case on
grounds
of relevance, even if notionally sound, may create its own practical
difficulties of application as I believe this case
demonstrates-
particularly where a court may be obliged to determine the facts by
reference to circumstantial evidence. See
Director of Public Prosecutions,
Gauteng v Pistorius
2016 (1) SACR
431
(SCA)
at para 36 where the Constitutional Court said:
“
There
seems to me to be no difference in principle between the exclusion of
relevant evidence by ruling it inadmissible and excluding
such
evidence, once admitted, by not taking it into account to decide the
issues in dispute. In either event the judicial process
becomes
flawed by regard not being had to material which might affect the
outcome. As much as excluding evidence on the basis of
admissibility
is a legal issue, it seems to me to also be a legal issue should
account not be taken of any evidence placed before
court which ought
to be weighed in the scales.
[10]
CIRCUMSTANCES
SURROUNDING THE DECEASED’S DEATH ACCORDING TO THE STATE’S
WITNESSES
Freda
and MacFarlane’s evidence
32.
The appellant was living with his father, the deceased, at the time
of the latter’s death. The appellant and a person
who will be
identified as Freda were in a relationship; but according to her, it
had just about ended.
There
was a lodger, Mr Macfarlane, who stayed in the house. He was a
security officer working at the same company as the appellant.
The
appellant was in charge of the engineering department.
It
appears that MacFarlane started living at the house a short while
after he met the appellant at work in June 2011. The appellant
had
commenced his relationship with Freda approximately a month later. It
is also evident that the appellant was able to confide
in MacFarlane,
at least in relation to Freda. According to MacFarlane, until the
appellant formed a relationship with Freda his
relationship with his
father appeared to be good. However, after Freda entered his life,
the appellant started drinking heavily
and stole money from the
deceased prior to the incident.
33.
Freda claimed that she had met the appellant at a hotel bar late on
the Friday night or early Saturday morning prior to
the incident
which occurred on Sunday evening. He was driving the deceased’s
car at the time. There were two other males
in the car. One of the
occupants alighted before they arrived at the deceased’s house.
Freda identified him as Deon Mandell.
At that time the appellant was
under the influence of both alcohol and drugs.
34.
On the morning of 17 December the other person left and Freda spent
that day and the next with the appellant. Both she
and the appellant
continued to consume tranquilizers (Brazipam) with whiskey.
35.
According to Freda the deceased only arrived at the house at about
11h30 on the Sunday morning. Soon after his arrival
a heated argument
ensued between him and the appellant regarding the appellant having
used the deceased’s car. She was later
recalled after the
appellant’s application for a discharge was refused. She then
accepted that the argument may have been
about the pawning of the
deceased’s lawnmower which had occurred on the Saturday. She
also accepted that the deceased had
come to the appellant’s
room, where she was lying down, to find out whether the lawnmower had
been pawned or sold and told
him that she did not know.
The
argument continued and she then fell asleep between 17h00 to
18h00.
[11]
36.
When she woke up to go to the bathroom she found that the deceased
was outside in the garden holding a spade in his hand
and trying to
get in, as the appellant had somehow locked him out. She recalled
that the deceased eventually managed to get in.
She then passed out
again in the appellant’s bedroom.
37.
Later that evening Freda was awakened by the appellant who said that
the deceased had committed suicide. He took her to
the garage where
she saw the deceased’s body. She said that the body was “
lying
there on the gas cylinder”
. This was not challenged.
38.
She then told the appellant to call the police. They went inside and
he used the landline. He took the phone but after
a short time put it
down telling her that there was no airtime to make the call. She told
him that they should go to the police
station and report the
incident. The appellant then went back to the garage.
39.
Despite telling him to leave everything until the police arrived, he
came out of the garage with four or five rounds of
shotgun ammunition
in his hand, gave them to her and said she must put them in the
deceased’s car. She went to place them
in the cubbyhole. When
she returned to the appellant, he was holding a rifle with the barrel
pointing under his chin.
40.
When Frida was recalled to testify, she said that she could not
comment on where the appellant had retrieved the rifle
from. She was
adamant that he produced it when she had returned from putting the
ammunition in the car. She also denied seeing
the rifle under the
deceased’s arm. She was adamant that she would have seen it if
it had been there.
41.
Returning to her chronology of events: Freda testified that the
appellant said he was going to commit suicide because
he had just
lost the only person who cared for him. She shouted at him not to be
stupid, grabbed the rifle out of his hands and
threw it into the
swimming pool.
42.
According to Freda, the appellant then went back into the house and
began ransacking the deceased’s room. He took
bedding and
clothing which he put in the deceased’s car. He told Freda to
help him, saying that he needed petrol money to
reach the police
station but had to pawn the items he was taking to get the money. She
could not recall if the appellant had a
shirt on at that time.
43.
MacFarlane claims that he left his girlfriend’s place on his
motorcycle at about 21h00 and returned to the house.
He found the
deceased’s car parked outside the yard and at the side of the
house. When he had left earlier it was inside
the yard. As he passed
through the yard he saw linen, what looked like curtains and other
items strewn in the area. On entering
the house he was confronted
with a mess- things just strewn around. He found the appellant in the
passage without a top on and
wearing only one takkie. MacFarlane
asked where the deceased was.
44.
The appellant told Macfarlane that his father had committed suicide
in a nearby park which was some 150 metres from the
house, and that
his body was still there. When MacFarlane asked what was going on the
appellant started to cry and appeared to
want to speak about it.
Macfarlane asked him several times what had happened. According to
MacFarlane, on each occasion Freda intervened
and told the appellant
to say nothing. MacFarlane estimated that he left the house sometime
after 21h30 but before 22h00. He arrived
back at his girlfriend’s
house just after 22h00 but this was because his motorcycle had broken
down along the way.
By
contrast, Freda claimed initially that she could not remember if
MacFarlane had come to the house that evening but denied that
she
would have prevented the appellant from speaking to him. Freda
however said that the appellant was wearing a top and only had
one
takkie on.
45.
According to Freda, as they were reversing out of the driveway they
were approached by the handyman who worked at the
church around the
block, known as Mr Aaron. Aaron said that he had heard a gunshot and
came to ask what had happened. The appellant
replied that the
deceased had shot himself and drove off.
46.
They drove straight to Solly Kramers tavern and bought a half jack of
sherry. The appellant had R18 in cash with him at
the time.  After
consuming the half jack, they went to Freddies tavern, the owner of
whom is also a pawnbroker. Freda recalled
that the appellant had
previously pawned items belonging to the deceased there.
47.
According to Freda, Freddie was not interested in taking clothes and
bedding. The police arrived while they were still
talking. Freda
confirmed that she and the appellant were brought back to the house
in separate police vans. They were at the house
until about 05h00 and
were then taken to the Booysens police station where they were
charged.  Later that day, at about 12h00,
they were taken back
to the house and asked about the location of the shotgun barrel.
According to Freda the appellant did assist
the police in the search,
but he only looked inside the house. He did not take them to the
yard.
48.
It is necessary to again interpose MacFarlane’s testimony.
Shortly after 22h00 when he had returned to his girlfriend,
the
deceased’s girlfriend, Peggy, called him. She was concerned
that the deceased was not answering his phone. Macfarlane
told her
that he had not seen the deceased and that the house was a mess.
49.
Macfarlane then went back to the house with his girlfriend to gather
his uniform for work. On arriving he discovered that
the padlock at
the entrance had been changed which prevented entry. He then
alighted, walked around into the yard through a side
passage
intending to enter the house via the garage. It was then that he saw
the deceased in a kneeling position inside the garage.
The deceased
did not have a top on. Neither the appellant nor Freda were at the
house
MacFarlane
went to his room and picked up his garments. He however found linen
and bedding lying in the yard. Macfarlane then contacted
his own
employer who told him to go straight to the police. He went to the
Booysens police station where he related the events
he claimed to
have witnessed.
50.
Once the police had attended at the scene, Macfarlane was informed
that he was a suspect and was brought back to the house.
When he
arrived the appellant and Freda were already there locked in the
police van. He was told to remain at the pool area while
the police
continued with their investigation of the scene. He also noticed that
the deceased’s car was now back at the house.
51.
While there, he saw the appellant and Freda being taken to the
deceased. They were brought from there to the pool area
and
MacFarlane heard the appellant crying and saying:”
Who would
do this to my father?”
52.
Macfarlane was then taken to the kitchen. While there, a detective
brought in a  .303 rifle and a shotgun, the barrel
of which was
missing. These had been found on the premises. It is not in dispute
that both firearms belonged to the deceased.
Police
witnesses
53.
Constable Chauke had attended the scene after receiving a report of
an alleged suicide. On arrival a member of the public
said that the
appellant had told him that the father had committed suicide and that
the appellant could be found at a local Solly
Kramers Tavern. There
was no objection to this evidence. The person was Aaron, who Freda
had said approached them while they were
driving out of the driveway
of the house.
54.
After finding the deceased’s body the constable proceeded to
Solly Kramers where he was told that the appellant
had driven to
another tavern a few hundred metres away. This is where he found the
appellant and Freda. The appellant did not have
a shirt on and
according to the constable the appellant had blood and a white
substance splattered on his chest. The constable
claimed that the
whitish substance looked like fragments of bone or brain tissue.
Chauke informed both the appellant and Freda
that they were suspected
of murdering the deceased.
55.
The
constable also inspected the car which the appellant was driving. The
car had not been started with a key but had been “hotwired”
[12]
.
It had also been broken into since one of the windows was shattered
and glass was still on the car seat and floor, Inside the
car they
found numerous items of clothing and bedding as well as some rounds
of live shotgun ammunition. Much of this evidence
was confirmed by
warrant officer Yende who had brought Macfarlane back to the house.
The warrant officer added that there was also
clothing and bedlinen
found in the boot.
56.
The appellant and Freda were brought back to the house in separate
police vans while another policeman drove the car that
the appellant
had been using back to the house. On arriving at the house, glass
matching the car’s broken window was found
on the ground. Both
MacFarlane and the warrant officer mentioned that the deceased’s
car was parked in the street when they
came back to the scene.
MacFarlane had said that the car was parked in the driveway before he
had left the house prior to the appellant
telling him that the
deceased had committed suicide in the park.
57.
Warrant officer Yende examined the garage. He described how he found
the deceased’s body, that blood was spattered
on the walls and
human tissue was still adhering to it. There was a small hole in the
wall which appeared to have been caused by
a bullet and the plaster
had fallen onto the floor
.
He found the gunsafe and described
that it had been forced open with a grinder.
58.
From there the warrant officer proceeded into the house and described
the mess that greeted him: Clothing and bedding
were all over the
floor.; In one of the rooms he found a takkie with blood on it. He
found some green tablets on the floor of the
appellant’s
bedroom. In the kitchen he found a broken bottle containing cannabis
and mandrax.
59.
The warrant officer then went outside. He retrieved two live rounds
of ammunition for the rifle. One of the rounds was
found near the
pool while he found the rifle at the bottom of the pool. He noticed
that the bolt had been engaged but had not closed
with the result
that the round had not yet entered the chamber. This meant that the
rifle was half-cocked
.
60.
The appellant and Freda were only brought to the house in the police
vans after the warrant officer had gone back into
the house after the
rifle had been retrieved from the pool and was busy writing up his
notes. Warrant officer Yende observed that
the appellant appeared to
be drunk and was agitated.
61.
Freda’s evidence that on the Monday the appellant only searched
inside the house for the shotgun barrel was corroborated
by the
police witnesses.
The
gunsafe and the shotgun barrel
62.
A number of days after the incident Mr Newcombe was allowed to enter
the house. He knew that the deceased had kept both
the rifle and the
shotgun locked in a gun safe. On inspecting the safe he found that
the hinges had been cut with a grinder.
63.
Later, Mr Ronaldson who is the husband of the deceased’s
stepdaughter came to the house. This was on 5 January 2011.
He came
to clean up the property as it had been put on the market. He
described that blood was still spattered on the walls and
floor while
fragments of the deceased’s skull were still on the floor. In
addition, he noticed three holes in the roof, only
one of which had
rusted while the other two appeared to be more recent.
64.
Perhaps the most significant discovery Ronaldson made was of the
shotgun’s missing barrel. While cleaning the yard
he found it
concealed in a hedge. The investigating officer was then called and
took possession of the barrel.
Evidence
as to whether the deceased was capable of taking his own life
65.
The following witnesses dealt with the nature of the relationship
between the appellant and the deceased, or confirmed
that the
deceased had at some stage or another suffered from depression, or
from alcohol addiction or had made statements indicating
suicidal
tendencies. They are;
a.  MacFarlane who
said that the deceased had been recovering from alcoholism but was
unaware that he suffered from depression;
b.  Aside from being
a close friend of the deceased, Mr Newcombe also knew the appellant
well. He testified that:
i.The deceased had
experienced a number of problems with the appellant because of the
latter’s drug addiction. This had caused
the deceased much
pain. The appellant had also stolen from his father in order to
support his drug habit.
ii.When the police
allowed him to enter the house Newcombe took a cabinet which was in
the kitchen and in which the deceased had
placed important documents.
Newcombe explained that the deceased had requested him to do so if
anything happened to him. Among
the papers was a letter written on 8
December 2009 by the appellant to the deceased and which he had
deposed to. The letter expressed
remorse for his unacceptable
behaviour and promised to change.
iii.In the cabinet
he found a number of anti- depressant tablets. There was also a
letter the deceased had written to his daughter
which revealed that
he was in a depressed state. The letter had been given to the
daughter.
c.  Mrs Newcombe’s
evidence, to which reference has already been made when dealing with
her hearsay testimony, was to
the effect that the deceased had
suffered from depression some two and a half years prior to the
incident. There was however a
more recent note that the deceased’s
girlfriend, Peggy, had received which indicated that he had started
drinking again.
d.  Peggy testified
that the deceased had been depressed over a number of events. This
has been mentioned earlier. She had
spoken to him on the morning of
17 December 2011. She mentioned that the appellant had driven the
deceased in his car. She said
that the deceased was in a jovial mood
for the rest of the day and that they had a good time together. On
the following day he
went back home and when she spoke to him later
that day he appeared to have been drinking. She however denied
sending a message
to Mrs Newcombe on a previous occasion that the
deceased had been consuming alcohol; she added that he had not done
so previously
during their three-year relationship.
e.  Dr Diova had
treated the deceased in January 2010 because he felt suicidal. At the
time she considered that he was stable
and recommend that he see a
psychiatrist. The deceased was however given a sedative which would
have made him drowsy if he consumed
alcohol at the same time. She
said that the deceased had been making a serious attempt to overcome
his depression.
f.  Dr Modise saw
the deceased as recently as October 2011. The deceased had attended
as an outpatient and was prescribed a
sedative which would result in
him being capable of sleeping for ten to twelve hours if he was also
taking alcohol
66.
The appellant testified that the deceased was a rehabilitated
alcoholic, having last consumed alcohol some 16 years earlier.
He
however claimed that when the deceased came back on 18 December he
was reeking of alcohol. The deceased denied to the appellant
that he
had been drinking but almost immediately gave him money to buy a
bottle of whisky. On his return the deceased poured a
drink for each
of them.
67.
From the outset the appellant contended that the deceased had
committed suicide. Whether or not the deceased suffered
from bouts of
depression requiring treatment or medication and whether he fell
within the category of persons who could conceivably
take their own
life was therefore relevant and do have probative value on the
question of whether the deceased could have shot
himself. So too, the
intervals between the deceased experiencing severe depression and
what might have triggered another bout.
The fact that some of the
episodes occurred a long time ago should also not be excluded from
consideration particularly as episodes
of depression continued to
surface from time to time. They are relevant to the issue of whether
the deceased had been able to manage
his depression or whether it
could resurface.
68.
Unless all instances are taken into consideration of when the
deceased displayed signs of severe depression which might
take him
over the edge and contemplate suicide it, would be well-nigh
impossible to know where to draw the line on admissibility.
In my
view they are all relevant as it is important to be able to take a
step back and see if there is a broader canvass which
requires
consideration.
Once
the canvass of facts has been presented a court will also be in a
better position to weigh up a particular piece of evidence
if it is
contradicted, determine its reliability or reject some of it because
of subsequent events or because, overall, the witness
is found to be
untruthful.
69.
In the result suicide cannot be excluded because, according to the
ballistics’ expert, despite the rifle’s
length it was
physically possible for the deceased to have shot himself and because
his psychological history cannot exclude him
from the category of
persons who might take their own life.
APPELLANT’S
VERSION
70.
The
appellant challenged much of Freda’s evidence concerning how
they came to meet on 17 December, whether there were two
others who
were with them and whether one of them stayed over until the morning
of 18 December
[13]
. While the
appellant’s denial that there was another person who came home
with them raises eyebrows as to why Freda’s
mention of
something as seemingly innocuous as that should have been so
vigorously challenged, or whether anything ought to have
turned on
his denial of knowing the other person who Freda alleged was in the
car with them and who was dropped off before arriving
at the house
(Deon Mandell), was never taken further. Neither party has suggested
that it is necessary to take into account these
events which may or
may not have occurred. I agree that it is unnecessary to do so.
71.
One aspect of the appellant’s testimony regarding the events of
the Saturday which needs to be mentioned is that
on the Saturday
morning Freda had suggested that they pawn the deceased’s
lawnmower which they then did. The appellant also
confirmed that
during the course of Saturday he and Freda consumed alcohol and took
drugs.
72.
According to the appellant when the deceased came home on the morning
of Sunday 18 December and after he and the deceased
had a drink
together they started arguing about the lawnmower which he was
accused of stealing. The appellant claimed that this
was soon
resolved when he promised to return it the following day.
73.
The appellant initially said that after seeing the deceased go up to
talk to Freda he then took more Brazipams with whiskey
and then
passed out on the couch in the lounge.
74.
The
appellant claimed that he awoke around 21h30 to 22h00. He only had
boxer shorts on. He put on a pair of jeans and his takkies,
but did
not put on a shirt. He went to the garage and saw the deceased in a
pool of blood. The deceased was on the far side of
the garage. He
then immediately ran back inside to wake Freda and brought her to the
garage. In other words, on his version the
appellant did not enter
the garage or go close to the deceased before running to fetch
Freda.
[14]
75.
On coming
down to the garage Freda remained at the entrance of the garage while
he went to the deceased and while trying to lift
him saw the rifle
under the deceased’s right shoulder. He then took the rifle
from underneath the deceased, “
I
loaded it, I wanted to shoot myself … It did not go off for
some reason, but Freda grabbed the gun and threw it into the
pool”.
[15]
76.
Mr
Guarneri put to the appellant when clarifying the appellant’s
evidence that Freda had taken the rifle and then threw it
into the
pool: “
So
she went to the pool- ja she threw it into the pool”.
[16]
77.
The
appellant claimed that once Freda had thrown the rifle into the pool
, which was about 4 metres from the garage door
[17]
,
he ran into the house to call the police. He claimed that he dialled
10111 from the landline inside the house. That number is
an emergency
toll free number when dialled from a landline.
The
first time the appellant revealed that he tried the toll free number
was when he gave evidence. He claimed that he might have
dialled an
incorrect number since it rang and was told, presumably by the
automated response , that there were insufficient funds
available.
78.
He then went to the deceased’s bedroom after which he went all
around the house to look for the R1500 he had given
the deceased to
keep for him during the previous week. He could not find the money.
The appellant said that he needed the money
to put petrol in the
deceased’s car so that he could drive to the police station and
report his father’s death. The
appellant described his
condition as “
completely freaked out”.
It was at
this time that he claims that the one takkie must have come off.
79.
Since he could not find the money, the appellant took a whole lot of
stuff and threw it into the car. He confirms asking
Freda to help
him. He could not find his set of spare keys for the deceased’s
car so he hot-wired the ignition and expressly
stated that prior to
then he always used the spare set and had never hot-wired the car.
80.
The appellant denied that he had handed four live rounds of shotgun
ammunition to Freda to put in the deceased’s
car, denied any
knowledge of how the shotgun’s barrel came to be removed
although he had originally thought that Freda might
have thrown it
there since she had thrown the rifle into the pool.
Although
the appellant had challenged the State’s witnesses about
breaking into the deceased’s car, when giving evidence
he
claimed that he did so and hot-wired the ignition because he could
not find the car keys. At this stage he said that the deceased’s

car was inside the driveway and that he drove it out while Freda
closed the garage door, and then the gate before entering the
car.
81.
The reason given by the appellant for taking the items was in order
to sell them to get petrol money in order to drive
to the police. He
claimed that he was already aware on the Saturday that the car did
not have enough petrol. This was the explanation
given for not
fetching his father from Peggy. Peggy’s testimony was that she
had arranged for one of her friends to take
the deceased back home
and confirmed that the deceased had first arrived at her place being
driven in his car by the appellant.
82.
It should be added that the appellant repeated that MacFarlane did
not come when he and Freda were still there.
He
also disputed that Aaron spoke to him as they exited the gate. He was
adamant that he saw Aaron for the first time at the entrance
to Solly
Kramers tavern. Initially he claimed to have told Aaron that his
father had committed suicide and asked Aaron to call
the police but
did not wait to find out if Aaron was doing so before entering Solly
Kramers. However, he later explained that he
saw Aaron had a
cellphone and he told Aaron about the deceased shooting himself. He
asked Aaron to phone the police and saw Aaron
proceeding to make a
call. He at one stage said that Aaron had in fact phoned the police
but then stated that he assumed that Aaron
was phoning the police
because on requesting Aaron to do so he saw Aaron making a call.
83.
According to the appellant he tried to sell his own jacket at Solly
Kramers and bought a half jack of Old Brown Sherry-
this to calm him
down. In fact, going to Solly Kramers was a spontaneous decision as
they were passing by it since his intention
was to pawn his jacket
and the deceased’s items at Freddies. The appellant did not
inform the bartender of the suicide or
ask the bartender to call the
police. They then went to Freddies tavern which was a few hundred
metres further on. He claimed that
Aaron saw him leave Solly Kramers
but did not ask Aaron if he had managed to contact the police.
84.
When he arrived at Freddies he tried to pawn his own jacket. While
there they were apprehended by the police.
85.
The appellant denied being taken back to the house. He claimed that
he and Freda were taken straight to the police cells.
It was only the
following day that they were taken to the house. He claimed that he
searched both inside and outside the house
for the shotgun barrel.
FORENSIC
EVIDENCE
The
Autopsy
86.
The penetrating bullet wound through the palette in an upward
direction, described as a “
burst head”
wound, was
not the only injury noted in the autopsy report.. It was one of five
wounds that were noted. The report was admitted
into evidence by
agreement thereby rendering it unnecessary for the pathologist to
testify or explain his report
87.
There was
also an accumulation of blood captured between the scalp and the
skull. It is identified in the autopsy report as sub-aponeurotic

haemorrhages to the back of the head which were purple in colour
[18]
.
There was no indication as to whether these injuries preceded or were
due to the gunshot. It is however listed as a separate “
right
periorbital haematoma”
wound
(“
wound
2”
)
to the “
burst
head
”
one (“
wound
1
”).
The
autopsy finding was that the cause of death was consistent with a
gunshot wound to the head.
DNA
results and blood splatter
88.
The deceased’s blood had splattered onto the wall and ceiling
of the garage
89.
A forensic examination was conducted of the blood found on the jeans
and on a takkie appellant had been wearing at the
time. They matched
the deceased’s blood. The undisputed evidence was that the
appellant did not have the other takkie on
after the incident, nor
did he have a shirt on.
Ballistics
90.
Lt Col Pieterse who is a ballistics expert testified that the
deceased was killed with the rifle. He was of the opinion
that the
position the deceased was found was inconclusive in deciding whether
the deceased had committed suicide or had been murdered,
91.
He also testified that although there would be primer residue on the
hand of the person firing the rifle, it could have
been wiped off in
many different ways. He confirmed that the rifle was in a half-cocked
position when it was recovered.
92.
Despite searching through the evidence, I could not find any
examination of the exterior of the rifle or shot gun or of
any
examination of the spade which was found at the pool or an axe found
inside the house. All I could find were photographs of
these items.
93.
I accept that the evidence of constable Chauke and warrant officer
Yende had to be reconstructed but one would have expected
to find
some examination undertaken or at least some reference to the visible
appearance of the rifle for any blood or fragments.
The photographs
of the rifle once it had been retrieved from the pool are of no
assistance, nor is the description on the photographs
in question.
94.
This is particularly disconcerting because if the rifle had been
wiped clean before being thrown in the pool then surely
caedit
questio
in the absence of an explanation by the appellant.
95.
Unfortunately, the investigation appears to have been sloppy and Mr
Guarneri’s challenge to the police that the
crime scene had not
been properly cordoned off was well taken.
WEIGHING
THE EVIDENCE
96.
At the outset I accept that Freda and MacFarlane’s evidence
must be treated with circumspection. Freda had been
warned at some
stage that she was a s 204 witness liable to prosecution herself. The
trial court expressly recognised that her
evidence had to be treated
with caution.
97.
The difficulty I have with MacFarlane’s evidence is the
contents of his alleged conversation with Peggy when she
contacted
him expressing concern that the deceased was not picking up her
calls. Of significance is that during the conversation
with her he
did not mention that the deceased had died despite, on his version,
having returned from the house after being told
by the appellant that
the deceased had shot himself. Peggy denied that she had called
MacFarlane at all and of course both the
appellant and Freda denied
that he was there sometime before 22h00.
Only
two conclusions can be drawn; either MacFarlane was not there when he
claimed or else he happened to come upon the scene and
became part of
the cover-up by revealing nothing to Peggy. I say this because, as
Vally J pointed out in accepting MacFarlane’s
narration and
rejecting Freda’s version, his version was too detailed of what
he saw and the discussion that ensued. It is
also relevant that the
appellant and MacFarlane were work colleagues and friends living
under the same roof (no doubt at appellant’s
recommendation to
the deceased) and that the appellant had confided in him previously.
98.
The fact
that the state witnesses may be or are untruthful does not on its own
result in an acquittal. It sometimes occurs that
the state can rely
on no evidence other than that of an admitted perjurer; for instance,
where he or she has been separately convicted
of the same offence. It
is the totality of the evidence and the explanation of the accused,
if called, which will ultimately determine
guilt or innocence even if
it is based on circumstantial evidence provided it satisfies the
requirements of
R
v Blom
.
[19]
99.
In my view there are three critical features of the appellant’s
version which conclusively establish his guilt.
In two instances they
may even stand on their own.
They are the
number of times the appellant and Freda went to the garage and what
transpired there, the attempted cocking of the
rifle and its dumping
in the pool, and lastly the reason for leaving the house when
compared to what the appellant claims he actually
did, including when
he came upon Aaron.
100.
Before dealing with each, it is necessary to mention that the only
explanation offered for the appellant’s clearly
contradictory
evidence and inexplicable conduct is that he was not thinking
rationally because his faculties were impaired by the
consumption of
alcohol and, certainly suggested during the State’s evidence,
the taking of drugs or at least Brazipam tranquilizers
that were
taken together with alcohol.
101.
However by
the time he testified the appellant’s version was that during
the entire day of the incident, i.e. the Sunday,
he had only one tot
of whisky, which itself had been diluted with soda water, and that
only sometime later after he had argued
with the deceased he had
taken some tranquilizers, but did not disclose whether it was only
two or more than that. He expressly
stated during his evidence that
he had not taken any drugs on the Sunday.
[20]
102.
That leaves the appellant’s explanation of irrational conduct
floundering on the possibility that he could not
think properly after
he saw his father’s face blown away which “
freaked me
out”
. The immediate difficulty this presents for the
appellant is that instead of being consistent, either that he could
not recall
the events or that his conduct displayed irrationality, he
was adamant that certain events did not take place as described by
the
witnesses. Moreover the appellant’s conduct is rationally
explicable if he had killed the deceased
103.
The first
aspect can be readily dealt with. The appellant was adamant about the
sequence of events immediately after he discovered
the deceased’s
body and that he had not handed the rounds of shotgun ammunition to
Freda. The other aspect related to where
he and Freda first came upon
Aaron and what transpired between them. The appellant was not even
prepared to concede that he might
have been in error due to the state
he was in.
[21]
It
is more than incongruous for the appellant to have been so adamant
about these events when he claims that his irrational behaviour

rendered him incapable of knowing what he was doing. The two cannot
sit together. As
Mr Mpekana
, who appeared for the State at the
hearing, put it; the appellant cannot approbate and reprobate.
Of
particular concern when analysing the evidence as a whole is that the
entire edifice of the appellant’s explanations which
would
enable a court to find that the state has not proven its case beyond
a reasonable doubt ultimately hinges on the circumstances
surrounding
the only events on which the appellant is adamant about. This is not
coincidental and explains why initially the appellant
blew hot and
cold about what he had consumed. Freda’s recollection, how she
fared under cross examination both initially
and when re-examined
together with the other evidence which supported it required the
appellant to shift tack and make the issue
one of competing versions
rather than his faculties being too numbed to recollect.
The
sequence relating to appellant’s movements and producing the
rifle
104.
The
sequence of events according to Freda’s testimony was quite
straight forward: The appellant woke her up saying that the
deceased
had “
just
shot himself”
.
[22]
The
appellant never challenged that he had told her that the shooting had
occurred just before he woke her up.
He
took her to the garage where she saw the deceased lying on the gas
cylinder with his face shot away. This too was not challenged.
Freda
then told him that they must call the police and the appellant went
into the house to do that.
105.
When he was unable to contact the police Freda said that they should
go to the police station. Instead of going there
straight away the
appellant then went back to the garage despite Freda saying that he
should not. Her testimony was;
“
I still said to
him do not, what are you doing, do not go back there, leave
everything as it is, wait for the police”
.
[23]
The
import of this evidence could not have escaped the appellant. It
conveyed that until he had attempted to make the call to the
police
he had not tampered with the scene and therefore had not picked up
the rifle from under the deceased before the call was
made. Yet
Freda’s evidence on this score was not challenged, not even
when she was re-called.
106.
Her
testimony about what occurred next is equally clear. While the
appellant had then entered the garage, she did not. She said
that she
did not see the appellant go inside the garage again and under
cross-examination said that she never went back into the
garage after
the appellant had allegedly attempted to contact the police from
inside the house
[24]
. It was
only when he came out of the garage that he then gave her the four
rounds which she took to the deceased’s car and
put them in the
cubbyhole.
The
objective facts as demonstrated by the photographs admitted into
evidence by consent as well the police testimony which was
not
disputed on this score corroborated her version. The appellant has no
explanation as to how the rounds came to be there other
than that
Freda had misguidedly thought she was assisting him- which makes no
sense but rather begs the question to which I will
return.
107.
It was only when she returned from the car that she saw the appellant
with the rifle pointing under his chin.
108.
The appellant’s version was far more complex. Firstly, when he
awoke between 21h30 and 22h00 he was only wearing
boxer shorts. No
explanation was offered as to why he undressed himself since he
claimed to have simply passed out on the couch.
Be that as it may he
claimed to have first put on his jeans and then his takkies and after
looking around for his father went to
the garage.
Since
the uncontradicted evidence was that he told Freda that the deceased
had “
just shot”
himself the question must be asked
why he did not hear the gunshot. Aaron who lived a block away clearly
did and part of that evidence
was allowed as part of the
res
gestae
without demur. Moreover, unlike Freda who had passed out
after taking whiskey with tranquilizers the appellant claimed to only
have
had the one tot of whiskey and soda with the deceased already
during the morning.
Although
he claimed to be a bit “
deurmekaar”
from
the Brazipam he had taken in the afternoon he was neither drunk nor
high from drugs.
[25]
109.
More pertinently he stated that when he went to the garage for the
first time, he touched nothing but just ran inside
to call Freda.
The
appellant and Freda went together to the garage. Freda stood at the
door. It was then that he tried to lift the deceased by
his shoulder.
It was then that he saw his father’s face blown away which
freaked him out. He however took the rifle from
under the deceased,
loaded it and after he had loaded it then tried to shoot himself at
the garage door by pulling the trigger
but the rifle did not go off.
It was only then that Freda grabbed the rifle, and went to the pool
to throw it in the water.
[26]
110.
The appellant claimed that it was only after that when he went into
the house to call the police from the landline. He
denied returning
to the garage or giving Freda the rounds of shotgun ammunition.
111.
The way in which the appellant’s evidence unravelled between
the time the first version was put to Freda and his
eventual
testimony in the witness box is also revealing.
The
following was initially put to Freda regarding the sequence of
events:
“
.. he agrees
with you that he had pointed the gun at himself, but his version is
that he first tried to do that and only then afterwards
tried to
phone.”
Instead
of persisting with that sequence Freda was asked, in relation to the
sequence she had given, whether she could comment on
whether the
appellant could have cocked the rifle between the time he gave her
the rounds to take to the car and her returning
from the car to find
him with the rifle. The appellant would have been expected to put to
Freda whether it was possible for the
rifle to have been cocked while
she was there with him in the garage
before
she was handed the
ammunition. This was not done, nor was there any mention of the rifle
being retrieved from under the deceased
when the appellant tried to
lift him.
At
no stage during Freda’s cross-examination nor at any stage
prior to applying for the appellant’s discharge did the

appellant change his version about the sequence regarding when he
took the rifle to shoot himself; it was always as he came down
to the
garage with Freda and tried to move the deceased. It meant that Freda
would have been observing him.
I
am satisfied that this was not an oversight since the appellant had
at that stage a clear version which would require Freda to
have seen
him take the rifle, then try and use it on himself.
If
that is what happened, then it would have been put. However Freda
could not be shaken on a number of events which did occur when
she
had been woken and the appellant’s version started falling
apart.
To
re-call Freda after applying for a discharge and then putting a
version that he had taken the rifle from the deceased before
she was
given the ammunition flies in the face of his allegation that she
would have had to be there when the rifle was produced;
not after she
was sent to put the rounds in the car which gave him the opportunity
to retrieve the rifle.
More
importantly, on his version he would have had to cock the rifle in
front of her in order to explain how it eventually came
to be found
half-cocked despite the deceased being ostensibly the last person to
have engaged its mechanism.
112.
The sequence of events as related by the appellant cannot be
believed. Why would Freda have the conversation with the
appellant
not to tamper with the scene if he had already picked up the rifle in
Freda’s presence and had his father’s
blood on at least
the one takkie which he happened to have taken off once they returned
inside?
113.
More than that, there is one thing which stands out: It was never put
to Freda that the appellant had cocked the rifle
and pulled the
trigger in her presence. The reason for the appellant not doing so is
obvious and is dealt with in the next section.
Cocking
of the rifle and dumping it in the pool
114.
The previous topic covered events up to Freda seeing the appellant
with the firearm pointed under his chin.
115.
Irrespective of the different versions as to the sequence of events
which led up to that moment; according to Freda,
when the appellant
had the rifle pointed under his chin and while he was giving her an
explanation as to why he intended to shoot
himself, she grabbed the
rifle from him, told him not to be stupid and threw it into the pool.
On her version this would have taken
place outside the garage and
near enough to the pool to simply throw it in the water without
having to take it there. It will be
recalled that the appellant
initially claimed that the distance could have been as little as two
metres.
116.
On the
appellant’s version he picked up the rifle where the deceased
was either kneeling or lying down
[27]
.
This was on the other side of the garage door. He therefore had to
proceeded to the garage door where Freda was standing. While

approaching her he had to have attempted to cock the rifle and
believing that he had done so by the time he was within her reach
he
pulled the trigger. She had to have been within his reach for her to
have grabbed the rifle.
117.
The insuperable difficulty facing the appellant is that on this
version of events, which now included cocking the firearm
and pulling
the trigger;
a.  Freda could not
have avoided seeing him at some stage with the rifle in his hand and
by the time he had reached the door
where Freda was standing he would
already have managed to cock it or at least believe that he had.
But
nothing of the sort was mentioned until the appellant testified once
the court had ruled against a discharge;
b.  In order to
believe that he had placed a cartridge in the chamber it would have
been necessary for him to have physically
rotated the bolt upwards so
that he could slide it back to behind the cartridge feed and then
would have had to push the bolt forward
to guide the next round into
the chamber and then rotate the bolt down to complete the cycle
before pulling the trigger.
All
this would have to occur as he approached Freda because on his
version only the deceased could have pulled the trigger last

therefore requiring someone else to have proceeded to rotate the bolt
up again and slide it back so that the next cartridge could
enter the
chamber. Obviously that could only have been done by the appellant.
Yet
Freda neither heard nor saw the bolt being engaged. Nor was it put to
her that this occurred in her presence as it must have
done if the
appellant’s version was true. Moreover, she was close enough to
him to grab the rifle which any one in her position
would realise
could have fatal consequences for either of them once the bolt had
been engaged.
c.  Of course
appellant’s version is incompatible with the explanation he
gave to Freda about wanting to end his life
and which was never
challenged. Her version is only consistent with him intending to end
his life; not already having pulled the
trigger and failed.
Appellant, when giving his version, did not claim that he had
attempted to give a whole explanation as to why
he could not live
anymore, let alone any explanation whatsoever.
d.  Whereas Freda
described a straight forward motion of grabbing the rifle and tossing
it in the pool- all of which was not
described with any reference to
the location of garage door (nor did the cross-examination seek to
elicit that, leaving the distinct
impression that it all occurred
away from the garage door and close to the pool)- the appellant’s
version would require Freda
to be facing inside the garage when she
grabbed the rifle, turning around and physically taking the rifle to
the pool before throwing
it into the water.
118.
Finally, on this aspect, aside from failing to put to Freda that he
had cocked the firearm in her presence let alone
had attempted to
pull the trigger the appellant did not suggest to the ballistic
expert called, Lt Colonel Pieterse, that it would
be possible to cock
the firearm and pull the trigger while holding the rifle under one’s
own chin without the butt having
to be on a firm surface or that it
is possible for the bolt action to be inaudible. The testimony that
was given on whether it
was possible for the deceased to have
committed suicide with his own rifle suggests otherwise.
The
point I wish to make is not that it is impossible to kill oneself by
holding the rifle in the manner described by the appellant,
but
rather why the full version of what the appellant claimed to have
occurred when he allegedly found the rifle under his father’s

armpit was not put to Freda; bearing in mind that Lt Colonel Pieterse
had yet to testify at that stage. The appellant’s decision
not
to put a proper version until the state had closed its case and until
after Freda had been re-called appears deliberate. Moreover,
the
appellant was familiar with both the deceased’s rifle and the
shotgun because on his own testimony he used to clean and
oil them
together with his father.
[28]
Reason
for leaving the house compared with subsequent events, including
speaking to Aaron.
Reason
for leaving
119.
The appellant said that he and Freda left the house to report the
incident because he could not contact the police from
the house
phone.
He
also said that in order to drive to the police station he needed
money as there was not enough petrol to get there and, because
he
only had R18 on him and could not find any money in the house he took
the deceased’s bedding, curtains and clothing to
pawn at
Freddies tavern. He would then buy petrol with the money and drive to
the police station.
This
is a very elaborate series of consecutive actions to achieve a simple
objective; namely, to inform the police that his father
had killed
himself and that they should come over.
It
is necessary to split up the sequence of events in order to test
whether the seemingly complex series of actions that the appellant

considered taking was irrational behaviour which the appellant
ascribes to being “
a bit deurmekaar”
and then
“
freaked out”
when he lifted his father and
claimed to have seen for the first time the gruesome site of his
father’s face being shot away.
Inability
to contact the police from home
120.
It will be recalled that after seeing the deceased’s body (and
irrespective of whose version is accepted as to
what occurred when
Freda was awakened and went to the garage) the appellant went inside
to call the police. Only when he testified
was it revealed that he
had dialled 10111 which is a toll-free landline number. He claimed
that he must have inadvertently dialled
the incorrect number because
an operator’s voice (presumably automated) indicated that there
was insufficient “
airtime”
.
121.
The difficulty in accepting this version is that he could simply have
re-dialled. The argument advanced by Mr Guarneri
that this is
indicative of the appellant’s irrational behaviour at the time
is met by the appellant’s own evidence
that the moment he
claims to have come upon Aaron, he asked Aaron to call the police and
inform them of the incident.
122.
Moreover, it is difficult to accept that instead of simply
re-dialling the appellant goes through a whole series of actions

while still in the house to look for money, then when finding none
ripping linen off the bed, and curtains from their railing and
then
taking the deceased’s clothing as well as removing an old fax
machine-cum- telephone from the kitchen in order to pawn
them some
distance away and purchase petrol at some other locality before
reaching the police station.
123.
During the
appellant’s cross-examination it also transpired that the
deceased had a cell phone. The appellant did not claim
that he was
unable to access it, only that he assumed that the deceased had
hidden it and therefore the appellant did not look
for it. He however
claimed to have searched high and low for the money that the deceased
was supposed to have had.
[29]
Destination
when leaving the house
124.
The appellant explained that the purpose of taking the deceased’s
items was to pawn them at Freddies. However,
he did not proceed to
Freddies. He claims to have impulsively stopped at Solly Kramers
because he needed to calm his nerves. There
he buys a half jack of
Old Brown Sherry.
125.
The difficulty with this is that he forgot that the photographs
admitted into evidence revealed an unfinished bottle
of whiskey in
the house. His only explanation was that he did not see it. This is a
person who has effectively ransacked the house
looking for money and
had gone into the deceased’s room stripping it of linen and his
father’s clothing yet right in
front of his eyes was the
whiskey.
126.
Upon arriving at Solly Kramers and fully alive to needing money to
contact the police by driving there, he does not simply
ask the
bartender to help by making a call to the police. After all he could
even have paid for it out of the R18 he had. Instead,
he buys a half
jack.
127.
Once again it is no answer to say that the appellant was acting
irrationally because of the tranquilizers or emotional
trauma since
on his version he had just asked Aaron to do precisely that for him
before entering Solly Kramers.
128.
Moreover, he claims to have asked the bartender if he could pawn his
biker jacket. Why do that if he was thinking rationally
enough to ask
Aaron to phone the police and believe that Aaron had in fact done so?
All he had to do was ask Aaron if he had managed
to contact the
police and then he could simply have turned around and gone back home
to await the police. After all he claims that
Aaron saw them leave
Solly Kramers for Freddies. He therefore cannot claim that Aaron had
left by the time they proceeded from
Solly Kramers.
129.
Finally, when he does reach Freddies, he does not claim to have tried
to pawn any of the deceased’s items, only
his own biker jacket.
When pressed under cross- examination the furthest he went was to say
that he “
could
” have tried to pawn or sell the
deceased’s items, not that he had actually discussed doing so
with the person at Freddies.
Encounter
with Aaron
130.
It is readily apparent that every avenue appellant has sought to
adopt to explain what happened after he left the house
with the
objective of reporting his father’s death to the police hinges
on the encounter with Aaron. Aaron can cover the
need to try and call
the police when he failed to do so at either tavern. It also provides
a version that is close to the truth
in respect of meeting Aaron at
all that night, since the appellant would already have known that
Aaron was the person who claimed
to have spoken to him and the issue
of identity could not be overcome. Accordingly, Aaron had to be
placed on the scene at some
stage.
131.
Aaron also posed a danger because he was the only one the appellant
was aware of who could put a time to when the appellant
was actually
seen to be leaving the house. The relevance of this will become
apparent later.
132.
Being unaware of what may transpire during the trial the appellant
therefore had little choice but to remove Aaron from
the immediate
vicinity of the house but still have some encounter with him that
evening. The only place could be Solly Kramers
because that would
also enable him to say that he had in fact asked someone he knew to
call the police. In this regard one is reminded
of the trial court’s
observation that the appellant made up his version by reference to
the evidence as it unfolded.
133.
But of course one of the immutable facts of the case is that Aaron
was not at Solly Kramers but exactly where Freda said
he was- at the
house as they were exiting. Accordingly, the entire edifice of
evidence presented around the encounter with Aaron
and asking him to
call the police yet not waiting to find out if he did is not just
implausible but untrue. As such the excuse
of acting irrationally
does not feature, more so bearing in mind that one of the facts the
appellant was adamant about was that
Aaron was not at the house but
outside Solly Kramers.
Insufficient
petrol
134.
Just as the reason for leaving the house is dependent on an inability
to contact the police from there , the reason for
taking linen and
clothing items and stopping en route is dependent on there not being
sufficient petrol in the car to reach the
police station.
135.
The appellant claimed that he had known since Sunday morning that
there was insufficient petrol in the car. This was
when he claimed
that he was asked to fetch the deceased from Peggy but could not.
This was never put to Peggy.
136.
However, the incontrovertible evidence is that there was sufficient
petrol for the car to not only get to Solly Kramers
and then Freddies
(albeit neither far but still requiring stop start driving), but the
car was taken by the police to the police
station and then back to
the house without requiring any additional petrol. At the trial, Mr
Gcaba also put to the appellant that
the R18 which he had on him
would have purchased close to 2 litres of petrol which was more than
adequate to reach the police station.
The appellant was unable to
respond.
ASSESSMENT
OF APPELLANT’S CONDUCT
137.
Although the appellant bears no onus, on the facts his behaviour
calls for an explanation considering that he was first
on the scene
after his father had “
just
” died and where, on the
version he ultimately gave when Freda had to be re-called, he was
holding a half-cocked rifle.
This
was the firearm responsible for his father’s death, which had
taken place in the garage. However no spent cartridge was
found
inside the garage, whereas two live rounds for the .303 rifle were
found in the vicinity of the pool.
138.
On the appellant’s version he continually failed to do the
obvious: He did not immediately re-dial the toll-free
emergency
number for the police after his first attempt or look for his
father’s cell phone despite searching high and low
for money:
He also did not look out for either his or the deceased’s set
of car keys while looking for money: He did not
think of again trying
to call the police from home before engaging in the rather convoluted
exercise of collecting relatively worthless
soiled bedlinen, clothing
and possibly curtains, some of which he left strewn in the yard, with
the alleged intention of pawning
or selling them at Freddies. Despite
this being his purpose, when he gets to Solly Kramers and then to
Freddies he only tries to
pawn or sell his own biker jacket, never
offering the items he had ransacked from the house.
Even
assuming that he was unable to make a call to the police from the
house, once the appellant drove away, he had numerous opportunities

to quickly contact them, some of which did not require him to try and
pawn his biker jacket: The moment he started the car the
fuel gauge
would have indicated that he had enough petrol to drive to the police
station without having to pawn or sell anything:
As
soon as he exited the drive way (or even if he was to be believed-
once he had stopped at Solly Kramers) Aaron could have phoned
the
police making it unnecessary for him to sell or pawn anything- he
could simply have returned home to await the arrival of the
police:
Similarly, once he arrived at Solly Kramers he could have asked the
bartender to phone the police.
139.
The appellant’s recourse was to explain his irrational actions
as just that. Initially it was left as a suggestion
that his
behaviour was attributed to a combined alcohol
cum
drug or
tranquiliser induced stupor.
As
the trial progressed it was apparent that State witnesses were not
budging on key testimony which in turn was being corroborated
by
other evidence. This eliminated the possibility of submitting at the
end of the trial that suicide remained a reasonable alternative
basis
which would account for the deceased’s death. Since the
appellant could no longer rely on suggested possibilities,
he became
obliged to directly challenge evidence that was being presented. This
is reflected in his re-opening of the cross examination
of Freda when
it became apparent that there would not be a discharge.
140.
In order to directly challenge the State’s testimony his
faculties would have to be somewhat more acute than initially

suggested. By the time the appellant had completed his evidence he
claimed to have taken no more than one or two sedatives (at
between
17h00 to 18h00) which was well after the single tot of whisky mixed
with soda water which he had by about noon. It will
also be recalled
that he claimed to have woken up between 21h30 to 22h00- a minimum of
two and a half hours later.
141.
While conceding that he was actually sober the appellant contended
that he was traumatised by the sight of his father’s
face that
had been blown away.
However,
his behaviour cannot be explained on the basis of the trauma the
appellant claimed to have suffered and the one or two
tranquilisers
he claimed to have taken.
Assuming that
tranquilizers did not assuage the trauma then it is not possible to
see how that could have contributed to him placing
two cartridges for
the
[FdP3]
rifle in the vicinity of the pool despite the deceased being shot in
the garage, why he removed four live rounds of shotgun
ammunition
from their box which was in the garage or why the barrel of the
shotgun was removed from its stock and concealed- none
of which could
be attributable to something the deceased did before he died.
Only
the appellant could have moved or removed them since he was
admittedly the first person at the scene, irrespective of whether
it
was “
just”
after, as he had said to Freda, or not.
142.
Far from the appellant’s behaviour being irrational, it was
quite deliberate and focused when it mattered: From
removing the
barrel of the shotgun and concealing it to directing the police
search away from where he had put it. Even his version
of the
encounter with Aaron, if believed, would be consistent with rational
conduct- the moment he sees someone with a phone he
asks for
assistance to call the police.
143.
There is however a consistent and logical thread to the appellant’s
narrative.
It
is;
a.  The need to
delay the police from attending the scene.
This
was achieved by claiming that he could not get through to the police
on the house phone and then could not drive directly to
the police
station since there was insufficient petrol in the car. In turn this
required an elaborate explanation of not finding
any money at the
house to buy petrol.
b.  The need to
remove Aaron from the vicinity of the house.
By
placing Aaron elsewhere, it would be difficult for others to
establish when he and Freda left the house. Since the State had
not
called Aaron the appellant believed it would be a simple matter of
creating doubt regarding Freda’s version of events.
The record
reveals that he failed to take into account the police’s
evidence from which, by straight forward deductive reasoning,
Aaron
could not have been at Solly Kramers as claimed by the appellant
because the police had first gone there to make enquiries
as to his
whereabouts (which evidence was not challenged).
c.  The creation of
a crime scene.
Not only did the
appellant remove the barrel from the shotgun and conceal it, but he
placed evidence around the house: Two
[FdP4]
cartridges
for the rifle were placed near the pool, while a half-cocked rifle
was left in the pool and four shotgun rounds
were removed from their
box in the garage.
Furthermore
linen, clothing and a fax machine were taken from the home with some
items left strewn in the yard. The shotgun rounds
were taken to the
car as were the linen and clothing, none of which were actually
offered when he went to the tavern- only his
own biker jacket. In
other words, the very items he took from the house were not going to
be pawned. They were removed from the
house together with the four
shotgun rounds for another purpose.
d.  The need to
establish an alibi.
I
say this because the appellant did not need phone money or petrol
money, nor did he need to have a drink at Solly Kramers since
there
was still whiskey at home which would have been readily visible when,
on his version, he would have needed it most- straight
after seeing
his father’s face and coming back inside the house.
However,
he went to buy a half jack and tried to pawn his own biker jacket.
All he really did was to engage people at two different
locations who
knew him and who were likely to recall a conversation about trying to
pawn a biker jacket at that time of night.
He never mentioned the
linen or clothing to them and perhaps most significantly never asked
them to call the police. Not doing
so demonstrates that he did not
want to disclose that he knew that his father was already dead when
he arrived there.
TOTALITY
OF EVIDENCE
144.
As is regularly said, it is the totality of the evidence that
ultimately matters. In this case one has the forensic evidence,
the
evidence of state witnesses on essential facts which are
independently corroborated (and the reliability of which cannot be

gainsaid) and the untruthful version given by the appellant on the
most critical elements of the case.
These
have been dealt with earlier and include how the appellant came to be
holding a half-cocked bolt action rifle despite it having
recently
been fired, the slew of nonsensical actions and decisions had his
father taken his own life, the failure to do the obvious
if it was a
suicide as well as the fact that only the appellant could have
altered the scene of the crime to the extent and in
in the manner
already discussed.
145.
I am satisfied that it is the appellant’s version which
ultimately exposes the truth of what occurred. The appellant’s

hand is all over the death of his father when regard is had to how
the firearms came to be where they were, the conditions in which
they
were and the dispersal and removal of rounds of ammunition for both.
None of this can be attributable to the deceased or anyone
other than
the appellant by his own actions or with assistance, whether due to
unwittingly misguided loyalty or otherwise.
146.
In this case the circumstantial evidence satisfies the requirements
of
Blom.
as endorsed by the Constitutional Court in
S v
Basson
[2004] ZACC 13
;
2004 (1) SACR 285
(CC)
147.
The only other explanation offered was that the deceased committed
suicide.
There are a number of
reasons why this can be rejected out of hand much of which has
already been covered and more especially, that
for obvious reasons,
the deceased could not have tried to cock the rifle after the fatal
shot or place the c
[FdP5]
artridges
at another locality let alone strip the shotgun and conceal its
barrel.
On
the evidence of the appellant, their argument was short lived. It
only concerned the lawnmower and he had promised the deceased
that it
would be returned from the pawnbroker on the following day. This is
not unreasonable since according to the appellant the
deceased held
some R1500 of his money and the lawnmower had been pawned for only
R200.
148.
The deceased stood his ground in what Freda said was a protracted
argument over either the appellant damaging the car
or pawning the
lawnmower. The deceased had been taken off medication and the
outburst that he could kill himself in respect of
what his son had
done to the car was a figure of speech. He had left Peggy in the
morning in a jovial mood after spending a good
time together.
149.
The claim that the deceased was concerned about the appellant’s
alcohol consumption was of no concern to the deceased
that day
because, according to his version, the deceased had actually asked
him to go out and get a bottle of whiskey so that they
could share a
drink together which they did.
150.
Furthermore, suicide cannot account for the deceased deliberately
taking out another firearm and despite being in the
state he
allegedly was, to have dismantled the barrel of the shotgun and
deliberately hide it in the yard. And if by any stretch
of the
imagination he had done so then one would have expected him to have
written a suicide note.
151.
All that might be left is whether the appellant had the means and
opportunity to take the rifle from the gun safe and
immobilise the
deceased before putting the rifle in his mouth if only one bullet was
fired.
ACCESSING
THE FIREARMS AND HOW IT WAS POSSIBLE FOR THE BARREL TO BE PLACED IN
THE DECEASED’S MOUTH
152.
In my view it is unnecessary to determine how the deceased could have
been killed in the fashion he was. The only thing
which needs to be
considered is whether the facts of the case preclude a finding that
the appellant had the means and the opportunity
to commit the murder.
153.
In the first instance the separate gun compartment of the second safe
which was in the garage was broken into with a
grinder. The appellant
attempted to sow confusion regarding the number of safes. The
evidence of Mr Newcombe put that to bed. He
expressly identified the
gun safe in the garage, the hinges of which he confirmed had been
broken by a grinder. One of the police
officer’s testified to
the same effect although he did not identify its location.
154.
During his testimony the appellant confirmed that ordinarily he did
not have access to the gun compartment of the safe
and at one stage
he also tried to sow confusion as to which safe or part of which safe
had previously been forced open when the
deceased could not find his
keys.
However,
that is irrelevant because on the appellant’s own version the
gun safe was already broken and therefore could be
easily accessed by
him. That being so there was no reason for the deceased to force it
open.
155.
Since the safe which housed the two firearms were broken into, even
if on an earlier occasion, the appellant had the
opportunity to take
the firearms. The fact that he attempted to suggest that only the
deceased could have removed the rifle points
to the appellant holding
out that the gun compartment of the safe was secure prior to the
deceased being shot with his own firearm
156.
Earlier I indicated that the autopsy report does not rule out a blunt
force injury to the back of the neck. At the scene
there were three
items which might have caused such an injury. The two which were
visible are the spade and an axe. Freda sought
to account for the
spade by saying that she saw the deceased holding it when he
attempted to enter the house- a rather curious
way of trying to do
so.
The
third is the barrel which had been deliberately concealed
157.
Accordingly, the means and opportunity presented themselves to enable
the rifle to be placed in the deceased’s
mouth if he was
immobile, a situation that cannot be ruled out if a blunt force
instrument was used first to hit the deceased on
the back of the
head.
There are other
possibilities if regard is had to the scenario just mentioned or even
that two bullets were fired at different times,
only the last one
inside the mouth, bearing in mind that there was another bullet hole
in the wall of the garage while Mr Newcombe
saw two similar, and not
rusted holes in the garage roof, and of course the appellant
deliberately placing two
[FdP6]
rifle
cartridges at the pool area. None however can support a suicide on
any basis.
WHAT
WENT WRONG
158.
Once again it is unnecessary to consider what objective the appellant
sought to achieve aside from delaying the arrival
of the police by
not reporting the incident sooner.
159.
The
appellant had created the appearance of a robbery gone wrong at the
house
[30]
and set up an alibi
by being seen at the two taverns without once revealing that he
either had items from the house that he wished
to pawn or that he
wished to contact the police.
160.
The first thing that went wrong was the arrival of Aaron at the house
and the knowledge that he had heard a gunshot.
However, that might
have been irrelevant had it not been for Aaron again coming to the
house after the police had arrived and telling
them that he had seen
the appellant leaving and possibly mentioning that this was after
hearing the gunshot.
161.
The appellant could no longer claim that there must have been a
robbery while he was out. He was now compelled to take
the version he
had given Aaron when explaining the gunshot (i.e., that his father
had committed suicide) and create a narrative
that might account for
the scene that he had already staged at the house and for his
presence at both taverns. That is the version
the trial court
rejected and which I am satisfied was correctly rejected, albeit on a
somewhat different analysis.
THEFT
162.
After careful consideration it is not possible to find a basis upon
which the theft conviction can be challenged and
the implicit
concession by Mr. Guarneri appears to be correctly made
SENTENCE
163.
The period for which the appellant has been sentenced raises three
concerns.
The
first is that the SCA has since indicated that if more than the
minimum prescribed sentence is to be imposed then reasons are
to be
provided for doing so.
The
second is that the appellant was in custody for possibly up to two
years before being sentenced. This period could have been
taken into
account in ameliorating any sentence in excess of the minimum. It is
however insufficient, when considering all the
other aggravating
factors with no mitigating ones being raised (on the facts which the
appellant was prepared to disclose), to
constitute substantial and
compelling circumstances allowing for a reduction from the minimum
sentence in respect of a murder conviction.
Finally,
the sentence for theft appears high. It should be no more than five
years. On the analysis of the facts, it also appears
that the theft
was part of the cover-up for the murder.
164.
In all the circumstances the sentence in respect of murder should be
reduced to fifteen years’ imprisonment and
the theft reduced to
five years’ imprisonment, all sentences to run concurrently
with that imposed for the murder. The effective
sentence is therefore
15 years’ direct imprisonment.
ORDER
165.
In the result:
1.  The appeal
against the convictions is dismissed
2.  The appeal in
respect of sentence succeeds in part and the order of the trial court
is amended in respect of the sentences
for murder and theft to read;
a.  Imprisonment of
15 years in respect of murder
b.  Imprisonment of
5 years in respect of theft
c.  The sentences in
respect of theft to run concurrently with the sentence imposed for
murder
d.  The effective
sentence inclusive of that in respect of all the other counts, which
are all to run concurrently with that
for murder, is therefore 15
years’ imprisonment.
(Signed)
SPILG,
J
We
agree:
(Signed)
MOKGOATLHENG,
J
(Signed)
DJF.
DU PLESSIS, AJ
Delivered:
This judgment was handed down electronically by circulation to
the parties’ representatives by email and by release to SAFLII.

The date of hand-down is deemed to be 24 December 2020
DATE
OF JUDGMENT:
24 December 2020.
REVISED

7 January 2021
FOR
APPELLANT:

Adv. Guarneri
Legal Aid
FOR
RESPONDENT:
Adv. Mpekana
(Heads
of argument drawn by Adv. Gcaba)
National Director of
Public Prosecutions
[1]
This was a competent verdict to the charge of robbery with
aggravating circumstances; the court finding that the items had been

taken after the murder.
[2]
See judgment of 20 November 2013 record pp1173-1174 and record
pp1172-23 to 1172-30 and 1172-33 to 1172-37
[3]
Prayer 2 of the Notice of Motion read: “
That
the Applicant be granted leave to appeal against the conviction ….
by Mr Justice Vally on a count …”
[4]
Judgment p1125 at para 114
[5]
Judgment p1124 para 113
[6]
Judgment p1125 at para 115
[7]
Ndhlovu
at
para 45:
[45]
'Probative value' means value for purposes of proof. This means not
only, 'what will the hearsay evidence prove if I admitted?',

but 'will it do so reliably?' In the present case, the guarantees of
reliability are high. The most compelling justification
for
admitting the hearsay in the present case is the numerous pointers
to its truthfulness
[8]
Compare
Principles
of Evidence
(4th)
by Prof Schwikkard and van der Merwe at 299 paras 13.7.4. They
appear to be of the view that the test of what will it prove
goes to
relevance while the requirement of reliability is intended to negate
the potential prejudice of receiving hearsay testimony.
[9]
This
would include the common law res
gestae
exception
to the hearsay rule
[10]
See
also Cachalia JA in
Director
of Public Prosecutions, Western Cape v Schoeman and another
2020 (1) SACR 449
(SCA) at para 63
et
sec
[11]
Record
p221
[12]
i.e. The engine was started by cutting and joining the ignition
wires in order to bypass the ignition system.
[13]
The
appellant claimed that Freda only came over to the house at about
11h30 on the Saturday morning.
[14]
This
was confirmed at p 477 of the record where he explained how the
deceased’s blood could have been on his takkies and
jeans-
“
Well
when I found my father after I have called Freda I went back to the
garage … I was on my knees like that and I lifted
my old
man’s shoulder… And it looked like half his face is
gone. I think that is maybe how the blood got onto my
pants and my …
“
[15]
At
p459
[16]
Record p 461
[17]
Initially
the appellant said it was about 2-3 metres but when the estimated
distance was measured in court it turned out to be
some 4 metres
(Record p 461)
[18]
Autopsy
report vol 16, p 1180
[19]
R
v Blom
1939
AD 188
at 202 – 203. See also
S
v Basson
2004
(1) SACR 285 (CC)
[20]
At
p501
[21]
Record
pp 577-578
[22]
Record
p 221 line 22-24
[23]
Record
p 222
[24]
Record
p 239
[25]
Record
pp 620 – 621
[26]
Record
pp 458-461
[27]
In
putting a version to Freda regarding where the deceased’s
blood found on the appellant’s garments could have come
from
it was put that this may have occurred when the appellant was trying
to lift the deceased when he was lying down. Although
this was said
to have been her testimony it is nowhere to be found on the record
up to that point: It however suited the appellant
to explain how the
blood came to be on what he was wearing.
[28]
Record
at p 508
[29]
Record
at p 677
[30]
It
is unnecessary to decide whether the appellant had completed the
task by the time he was reversing the car when Aaron came.
It is
also unnecessary to make any finding as to whether MacFarlane had
arrived at the scene after 21h30 but before the appellant
and Freda
had left the house