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[2010] ZASCA 87
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S v Isaacs (039/10) [2010] ZASCA 87; [2010] 4 All SA 481 (SCA) (31 May 2010)
THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
JUDGMENT
Case no: 039/10
MOEGAMAT YUSUF
ISAACS
Appellant
and
THE
STATE
Respondent
________________________________________________________________
Neutral
citation:
Isaacs
v S
(039/10)
[2010] ZASCA 87
(31 May 2010)
CORAM:
Navsa,
Bosielo JJA and Seriti AJA
HEARD:
5
May 2010
DELIVERED:
31
May 2010
SUMMARY: Murder
charge ─ State’s case built on circumstantial evidence ─
items on circumstantial evidence to
be viewed cumulatively ─
evidence as a whole must prove accused’s guilt beyond
reasonable doubt.
_____________________________________________________
_________
ORDER
______________________________________________________________
On appeal
from:
Western
Cape High Court, Cape Town (Ndita J sitting as court of first
instance).
The appeal is dismissed.
______________________________________________________________
JUDGMENT
______________________________________________________________
NAVSA JA (Bosielo
JA and Seriti AJA concurring)
[1]
On
Sunday 6
th
July 2003, Priscilla and Michael Heneke, the doting maternal
grandparents of eight year-old Sasha Leigh Crook, watched their
granddaughter
play in and around their house at 47 Adrian Road,
Ottery, Cape Town. They could not have imagined that later that day
she would
disappear and that eight days thereafter, during the early
hours of Monday 14 July 2003, her body would be discovered in the
vicinity
of a rubbish dump in Muizenberg.
[2]
The
appellant, Moegamat Yusuf Isaacs, was convicted in the Cape High
Court (Ndita AJ, sitting with two assessors) of Sasha Leigh’s
murder. The conviction was based on circumstantial evidence and on
statements he had allegedly made to his mother, Mrs Fatima Isaacs,
in
the presence of police. The question in this appeal, which is before
us with the leave of this court, is whether the State had
proved
beyond reasonable doubt that the appellant had murdered Sasha Leigh.
[3]
At
material times the appellant, together with his wife and mother,
resided right next door to Sasha Leigh’s grandparents,
at 45
Adrian Road, Ottery. He is the last known person to have seen her
alive. It is common cause that some time after lunch on
that fateful
Sunday, Sasha Leigh had gone over to the front of the appellant’s
house, after she had spoken to him over the
low fence separating the
two homes, and that she had then followed him through a gate into the
backyard.
[4] According to
the appellant, he had been under the influence of dagga and, although
he had seen Sasha Leigh enter the yard behind
him, he immediately
went to sit at a table in the yard where he rested his head and had
dozed off. He testified that he had no
idea of what had happened to
her thereafter.
The
appellant testified further that his mother’s prospective
tenant had come to drop off a refrigerator at the flat at the
back of
their house and that he had interacted with this person at about the
time that Sasha Leigh had gone missing and that this
had occurred
before 14h00. According to the appellant he had departed the scene
before 14h00 to be at a friend’s house to
watch a television
movie scheduled to start at 14h00. This part of his testimony was
directed at showing that he could not have
murdered Sasha Leigh. Put
differently, there had been no opportunity for him to have committed
the foul deed - at material times
he had been in the company of
others. As will become apparent it was an alibi defence of sorts.
[5] From the time
that she had entered the yard at house no 45, Sasha Leigh was not
seen in public again until the discovery of
her body on 14 July 2003
by Mr Daniel Geduld, an employee of a private security firm who was
patrolling the veld in an area known
as Pelican Heights in
Muizenberg. By then dogs had torn at the face and neck of the body
lying in the vicinity of a rubbish dump
and near a sports field.
[6
] As
will be seen in due course, the degree of decomposition of the body
is relevant, as is a tiny fragment of a pressed wooden
board having
the appearance of a marble finish (of the kind found on kitchen
surfaces), that the police allege they had found between
the clothes
that covered Sasha Leigh’s body. The assessment of objective
evidence is of crucial importance to a determination
of the
appellant’s guilt.
Sunday 6 July 2003
[7] It is necessary
to attempt to get as full a picture as possible of what had occurred
on the Sunday on which Sasha Leigh had
disappeared. In doing so, the
evidence of neighbours and the appellant’s own evidence
concerning his movements during that
day will be dealt with.
[8
]
Sasha Leigh had spent the week preceding Sunday 6 July 2003, which
was part of her school holidays, at her grandparents’
home. It
appears that her mother regularly allowed her to spend time with
them. Thus, she was not a stranger in the neighbourhood.
It is common
cause that Sasha Leigh often played in the neighbourhood and had
befriended, amongst others, the appellant’s
two year-old niece
Ashiema, who at one stage lived at
her
grandmother’s home, next-door.
[9
]
On that Sunday morning, upon her return from Church with her
grandmother, Sasha Leigh played in and around the house. Her
grandmother
prepared lunch whilst her grandfather watched television.
They saw her intermittently. She had repeatedly remonstrated with her
grandmother because she was unhappy that the latter was preparing
steak, vegetables and roast potatoes for lunch. She extracted
an
undertaking from her grandmother that her preferred meal of roast
chicken would be on the menu for supper that night. Sasha
Leigh and
her grandparents were all conscious of time as they were all
scheduled to attend a party at 15h00.
[10
] After
lunch, in anticipation of attending the party, Sasha Leigh dressed
herself in the tracksuit in which her body was later
discovered.
According to her grandmother the first time she discovered that Sasha
Leigh was missing was after 14h00. That time
largely accords with
what neighbours testified was the time they saw Sasha Leigh enter the
premises next door.
[11]
Sasha Leigh’s grandmother immediately went searching for her
granddaughter in the neighbourhood. Her first port of call was
the
house next door, house no 45. The windows and the front door were
closed. It appears that no-one was home. She then went to
house no 43
and was told that Sasha Leigh was not there. She looked at the house
directly across the street, where Mrs Antoinette
Jacobs and her three
daughters were having tea on the front porch. An enquiry directed at
them elicited the answer that Sasha Leigh
had been seen a short while
earlier at the appellant’s home and that she had entered the
backyard through a side gate.
[12
] Sasha
Leigh’s grandmother went back to house no 45 and this time
approached the side-gate leading to the back yard. The
gate was made
of steel and one could not see through it. She called out her
granddaughter’s name and the appellant came to
the gate. He
told her that Sasha Leigh was not there.
[13] When Sasha
Leigh’s grandmother testified it was never put to her that the
appellant had told her that Sasha Leigh had
been there earlier. In
his evidence in-chief the appellant did not testify that he had done
so. It was only later, during cross-examination
that he said he had
told her that Sasha Leigh had been there earlier. That part of his
evidence was in response to the prosecutor
putting to the appellant
that it could reasonably be expected of him to have told Sasha
Leigh’s grandmother about her earlier
presence in the yard. It
was clearly an afterthought and was brought about by pressure from
the cross-examiner.
[14] A continued
frantic search by Sasha Leigh’s grandparents, in the immediate
neighbourhood and beyond, during the remainder
of that Sunday, proved
fruitless.
[1
5] Ms
Martina Jacobs, who, after lunch on that Sunday, had been drinking
tea on the porch with her mother and two siblings saw the
appellant
and Sasha Leigh converse over the fence and then saw the latter cross
over to the front of the appellant’s house.
Ms Jacobs saw Sasha
Leigh follow the appellant towards the backyard. She did not see
Sasha Leigh re-emerge. She was the one who
had told Sasha Leigh’s
grandmother that she had seen Sasha Leigh at house no 45.
[1
6] According
to Ms Jacobs, a short while after Sasha Leigh’s grandmother had
left house no 45, the appellant emerged and stood
at the front of the
house, wearing a white t-shirt. He went back into the yard, came out
a short while later wearing a jersey and
proceeded to walk down the
road.
[1
7] During
the time that she and the other members of her family had been on the
front porch Ms Jacobs did not see a bakkie arrive
at the appellant’s
house to offload a refrigerator. She, her mother and two sisters
remained on the porch until approximately
15h00. Although Ms Jacobs
conceded that she might have missed seeing the bakkie, she was
adamant that she would have noticed a
refrigerator being offloaded.
[1
8] Mrs
Antoinette Jacobs, who had been standing on the front porch with her
daughters that Sunday afternoon, had noticed that when
the appellant
left his house that afternoon, after talking to Sasha Leigh’s
grandmother, he had failed to greet as he usually
does. The last time
Mrs Jacobs saw Sasha Leigh was when the latter was walking behind the
appellant on the front porch of house
no 45. She didn’t see a
white bakkie offloading a refrigerator during the time she was on the
front porch.
[1
9] The
appellant, who at the time of the incident in question was 26 years
old, testified that he had a drug problem and that he
owed drug
dealers a large sum of money and had been threatened by them. The
threats were directed at his family. This part of the
appellant’s
evidence was directed at showing that there was a possibility that
Sasha Leigh had been snatched by the drug
dealers in the mistaken
belief that she was the appellant’s two year-old niece Ashima.
This is an aspect that will receive
further attention later in this
judgment.
[
20] At
the time of Sasha Leigh’s disappearance the appellant had been
living with his mother and wife in the main house. They
had recently
moved from the flat at the back of the yard. The appellant’s
mother’s prospective tenant had been given
the keys to the
flat. According to the appellant he did not himself have keys to
either the flat or the main house. His wife and
mother kept a set of
keys to the main house.
[
21] On
that disastrous Sunday the appellant awoke at 11h30. His wife had
already gone to work and his mother was busy in the kitchen.
The
appellant went over to his friend Kashief’s house. Kashief
lived six houses away from him, in the same street. The appellant
and
Kashief smoked dagga at the latter’s house. At approximately
13h00 the appellant went home for lunch. On his way home
he had seen
the Jacobs family on the front porch of their home. Upon his arrival
he discovered that his wife and mother were not
home and that he had
been locked out. He sat in the driveway awaiting his mother’s
return.
[2
2] The
appellant testified that whilst he sat in the driveway Sasha Leigh
approached and spoke to him over the fence. She told him
that she was
getting ready to go to a party and that she was waiting for her
grandmother to get dressed. Sasha Leigh then came
over to their
property and asked him if Ashiema was there. He told her that Ashiema
and her mother had moved and no longer lived
there. He got up and
walked into the backyard and she ‘probably walked behind me and
played into the yard’.
[2
3]
According to the appellant he then took off his top and went to sit
at a table in the yard. He laid his head on the table and,
probably
because he had been under the influence of dagga, dozed off.
Suddenly, he heard Sasha Leigh’s grandmother call out
her name.
He got up, went to the gate and, upon enquiry from her, first looked
briefly into the yard and then told her that Sasha
Leigh was not
there. He suggested that she look for Sasha Leigh at another
neighbour’s house. He went back into the yard
and five minutes
later the new tenant, accompanied by another person, arrived with a
bakkie to offload a refrigerator. He spoke
briefly to the new tenant
who departed shortly thereafter.
[2
4] After
the tenant’s departure the appellant put his top back on. Tired
of waiting for his mother, he left and went back
to Kashief’s
place. The appellant told Kashief he had not had lunch, whereupon the
latter sent two of his friends to buy
food. The appellant was adamant
that all this had occurred before 14h00, because the television movie
scheduled to begin at that
time had not yet started. They watched
television until his wife hooted outside. He accompanied his wife to
the Muizenberg flea-market
where they had lunch.
[2
5] The
extent to which the dagga affected the appellant’s awareness
and the quality of his evidence are aspects that will
be dealt with
later in this judgment. The post-mortem findings which bear on what
might have happened to Sasha Leigh on that Sunday
will also be
referred to in some detail later on.
Subsequent events
[2
6] Sasha
Leigh’s disappearance and the discovery of her body were widely
publicised. First there had been pressure on the
police to find her
and then to find her murderer.
[2
7] When
the police arrived at the scene where Sasha Leigh’s body was
discovered they found certain items, which they collected
as exhibits
for forensic testing and which were referred to in evidence at the
trial. They obtained the tiny fragment of a pressed
wooden board, of
the kind used in kitchen tops, and referred to earlier in this
judgment, in-between the items of clothing that
covered Sasha Leigh’s
body. In the vicinity of Sasha Leigh’s body they found two
white bags of the kind used by builders.
In one of the white bags
they found traces of Sasha Leigh’s DNA. The police found
similar bags at the appellant’s house
during a search conducted
there. According to the appellant his late father, who had been a
builder, had used such bags. It is
common cause that such bags are
freely available commercially. The bags found at the scene could not
be directly linked to the
appellant.
[2
8]
It is necessary to record that the place at which Sasha Leigh’s
body was found is frequently used by members of the public
to dump
refuse. A set of motor vehicle tyre tracks leading to the body was
seen by the police. They decided to take a mould of
the tyre tracks
for possible linkage to a motor vehicle that might have been used to
transport the body. The police did not make
moulds of other tyre
tracks in the vicinity, which are clearly visible from photographs
taken by the police photographer.
[2
9] During
the afternoon of 14 July 2003, the day on which Sasha Leigh’s
body was discovered in Muizenberg, the police sought
and obtained a
search warrant entitling them to search the appellant’s house.
The police forensic team assisted in obtaining
exhibits from the
house for possible use in their investigations. They conducted the
search whilst the appellant, his wife and
his mother were home. A
garden shed with two entrances, located in the backyard of the
appellant’s house was searched and
the police found a wooden
board which had a marble finish and which could possibly be linked to
the fragment found on Sasha Leigh.
[
30] On
the same day on which the police had conducted the first search they
confiscated the appellant’s wife’s motor
vehicle and
decided to arrest him. He was taken into custody and transported to
the Parow Police Station.
[
31] Two
days later, on 16 July 2003, the police obtained a second search
warrant to search the premises where the appellant lived.
This time
they conducted a search of the garage on the premises, which they had
omitted to do on the first occasion. The appellant’s
mother was
home when the second search was conducted. This time, however, they
took as exhibits swabs and filter paper samples
of what appeared to
be blood they had discovered on a plastic shopping bag in a paint
container in the garage. Part of a white
T-shirt was found under a
plastic bag in the paint container. The police also found a piece of
pink cloth under a plastic bag in
the paint container. Other objects
were also seized by the police. On the same day they confiscated a
second motor vehicle belonging
to the appellant’s mother to
enable them to conduct forensic tests.
[
32] After
Mrs Fatima Isaacs, the appellant’s mother, had agreed to
release the car to the police she accompanied Captain Pragasan
Naidoo
to the Serious and Violent Crimes Unit’s offices at Bishop
Lavis. Mrs Isaacs intended to visit the appellant and Captain
Naidoo
required a statement from her in relation to the use of her motor
vehicle. According to Captain Naidoo, upon their arrival
at Bishop
Lavis they passed the office of the investigating officer, Inspector
Anna Cilliers. When Mrs Isaacs saw the appellant
she immediately went
to him. Mrs Isaacs and her son both burst into tears and hugged each
other. Captain Naidoo testified that
Mrs Isaacs had asked the
appellant whether he had killed Sasha Leigh and he had responded in
the affirmative. She asked him how
he had done it and he replied: ‘I
choked her’. Inspector Cilliers confirmed this aspect of
Captain Naidoo’s evidence
and also that he had instructed her
to take notes of what had been said.
[33] At the time of
the alleged exchange, Director Joseph Makhura, a member of SAPS, was
also stationed at the Serious and Violent
Crime Unit in Bishop Lavis.
He too, confirmed that he had overheard the exchange between Mrs
Isaacs and the appellant referred
to above.
[34] According to
Captain Naidoo he later took Mrs Isaacs to his office and asked her
if she was willing to make a statement about
the exchange between her
and the appellant and she agreed. He proceeded to write the statement
and read it out to her. She hesitated
for a minute before signing it.
The statement was written in English and was produced at the trial.
[35] The appellant
and his mother, whilst admitting that they had cried and comforted
each other, both denied the exchange in question.
Mrs Isaacs
claimed that she was illiterate. She testified that she could
understand some English but was not proficient in
that language. She
testified that as far as she was concerned, the written statement she
had signed related only to the use of
her motor vehicle by the
appellant
[3
6] The
appellant’s former wife (they were divorced after his arrest),
Ms Fagmeda Isaacs, testified and supported his
version of events
of her interaction with him on the Sunday on which Sasha Leigh had
disappeared. She confirmed that he had worn
a white t-shirt on that
day. She testified further that he did not have keys to either the
flat or the main house. Ms Isaacs was
aware of the appellant’s
drug problem.
[37] Mr Ashaan
Williams, the prospective tenant for the flat at the back of the
appellant’s house, testified in support of
the appellant’s
case. He confirmed that he had delivered a refrigerator at the
appellant’s home on
a
Sunday but could not recall the date. He testified that he had been
accompanied by two other persons and that he had encountered
the
appellant in the yard leading to the flat. Mr Williams could
initially not recall the type or colour of the bakkie which he
had
used to deliver the refrigerator. However, after an adjournment
during the trial those particulars came to him. According to
Mr Williams, he had delivered the refrigerator between 14h00 and
15h00 that Sunday. He was adamant about this. Importantly,
he
initially testified that Mrs Fatima Isaacs had written out his rental
receipt. When it was put to him that she had claimed to
be illiterate
he responded by stating he had not meant that she had written it
herself. He sought to excuse his initial answer
by stating that he
had misunderstood the question. Under cross-examination, Mr Williams
stated that he had not wanted to be in
court and was there only
because he had been subpoenaed. He went on to state the following:
‘
I didn’t
want to get involved, because it’s been such a while back that
I don’t remember everything as in detail.’
This is contrary to an earlier part of
his evidence that he was testifying because he had a contribution to
make.
The post-mortem
report
,
the testimony of the pathologist and other expert evidence
[3
8]
Dr Denise Lourens conducted the post-mortem examination on Sasha
Leigh. She testified that the body was in an early state of
decomposition. She found a penetrating incised wound which indicated
a stab wound caused by a weapon like a knife. This wound was
situated
over the right anterior lower neck. The right common carotid artery
was completely transected with the well defined clear
lines or edges,
in keeping with a stab wound or a cut.
[3
9] According
to Dr Lourens, the index of suspicion of throttling or strangulation
is very high but, because the flesh in the region
of the neck had
been eaten away by animals, probably dogs, potential evidence in this
regard in that area of the body had been
lost. However, there was
evidence of throttling or strangulation in the form of petechial
haemorrhages in other parts of Sasha
Leigh’s body, particularly
in the heart and lungs. Patechial haemorrhages are seen most
frequently where there is anoxic
damage, due to a lack of oxygen.
[
40] Another
important post-mortem evidential feature is that Sasha Leigh’s
body showed scalp bruising. She had sustained two
types of brain
haemorrhages indicating blunt trauma to the head. Significantly, she
was alive when it was inflicted. There would
have been no sign of any
haemorrhage had she already been dead before the blunt trauma to the
head.
[
41] Dr
Lourens, in dealing with her estimation of the time of death, made
several points. First, she dealt with traces of food found
in Sasha
Leigh’s stomach. She took into account that Sasha Leigh had
consumed steak and vegetables for lunch. Had Sasha Leigh
been killed
immediately after her disappearance it could be expected that one
would see remnants of her last meal, particularly
of the steak. Red
meat like steak would show individual fibres that would be easily
identifiable. According to Dr Lourens one could
expect such traces up
to four hours after the meal. No such traces were found in Sasha
Leigh’s stomach.
[4
2]
In relation to decomposition of the body and its significance, as far
as time of death is concerned, Dr Lourens had the following
important
comments:
(i)
Considering
the flaccidity and body temperature alone, the indications are that
Sasha Leigh had been dead for at least 36 hours;
(ii)
However,
the temperature to which the body was exposed and the conditions
under which it was kept are very important features.
Airflow, open
windows and general exposure to the elements are all relevant
factors. If, for example, she had been kept in a freezer,
that fact
alone would impact on an accurate assessment of the time of death.
[43] In Dr Lourens’
view, the lack of insect activity on the body indicated that Sasha
Leigh had been kept in a hermetically
sealed place for a period of
time before being left in the field and could have been kept in a
freezer. There had been testimony
about a freezer in the appellant’s
house.
[4
4] Captain
Frans Maritz, a ballistics expert employed by SAPS, testified in
support of the State’s case. At the commencement
of Captain
Maritz’s evidence, counsel representing the appellant readily
admitted his expertise. Captain Maritz testified
convincingly that
the tests he had conducted proved that the fragment found on Sasha
Leigh matched the board that had been found
in the shed behind the
appellant’s house. The tests he had conducted showed that it
had broken off from the board. It is
uncontested that the fragment
matches the mock-marble surface of the wooden board in appearance and
colour. In heads of argument
filed in this court, by the appellant’s
counsel’s predecessor, the admission concerning Captain
Maritz’s expertise
was sought to be withdrawn. The appellant’s
present counsel rightly did not persist in this submission.
Developments
duri
ng
the trial and admissions made in terms of s 220 of the Act
[4
5] At
the commencement of the trial appellant’s counsel said the
following on his behalf:
‘
To
a large extent he chooses to exercise his right of remaining silent
at this stage, but is prepared to give a short explanation
through me
of his defence to the charges. Inasmuch as he is charged with on 6
July 2003 having committed
the offences, his defence will be that of an alibi.
. . .
The
accused’s defence will be . . . that at the times when he is
alleged on that day to have in some way abducted or murdered
the
deceased, he was with a friend
of his one Kashief from two o’clock in the afternoon.
We will also seek to show
that if a murder of the young lady in question took place in the
manner alleged by the State, we seek
to show that it is not possible
that that could have happened.’
[46] When the first
witness, Ms Priscilla Heneke, was cross-examined the following was
put to her by appellant’s counsel:
‘
[T]he first thing
that I must put to you is that the accused doesn’t remember
perfectly what was happening or what happened
on that particular
afternoon, because he had partaken of dagga.’
[47] As stated
above, at one stage during the trial, it was suggested that drug
dealers to whom the appellant owed money might have
snatched Sasha
Leigh, mistaking her for the appellant’s two year-old niece,
Ashiema. There were tentative suggestions, during
the
cross-examination of some members of the SAPS that they had conspired
to build a case against the appellant. It was built on
speculation
and suggestion without any evidential foundation.
[4
8] A
few days into the trial the appellant made certain admissions in
terms of s 220 of the Criminal Procedure Act 51 of 1977 (the
CPA) .
The most important are as follows:
(i)
DNA
testing proved that the pink cloth found in the paint container in
the appellant’s garage had traces of Sasha Leigh’s
genetic material.
(ii)
A
swab and a filter paper that had been applied to what appeared to be
blood on the plastic Pick ‘n Pay bag found in the
paint
container were tested and similarly proved to have traces of Sasha
Leigh’s genetic material.
(iii)
A
portion of the white t-shirt found in the paint container and which
also appeared to have blood on it, was also found by DNA
testing to
have traces of Sasha Leigh’s genetic material.
[49] It is
necessary to record that neither the appellant’s mother’s
car nor his wife’s could be positively linked
to the tyre
tracks leading up to Sasha Leigh’s body.
[
50] Even
though there were suggestions of a police conspiracy to implicate the
appellant neither he nor any other member of his
family expressly
disavowed any knowledge of the paint container and its contents. Put
differently, none of them, at any stage,
protested that the container
or its contents were foreign items, unknown to them. It was not
contested that traces of paint evident
in the container were of a
similar colour to the outer wall of the appellant’s house.
Conclusions
[51] In addition to
facing a murder charge the appellant had also been charged with the
rape of Sasha Leigh. He was rightly acquitted,
in terms of s 174 of
the CPA, on the latter charge. In relation to the count of murder,
the court below carefully considered the
contact between the
appellant and Sasha Leigh on the day of her disappearance, the
forensic evidence and the alleged exchange between
him and his
mother.
[5
2] The
court below, having regard to Dr Lourens’ evidence, took the
view that the time frame during which Sasha Leigh disappeared
on that
Sunday was less crucial than suggested on behalf of the appellant.
[5
3] Ndita
J, in the judgment of the court below, rightly took into account that
it was only after several key witnesses had testified
that the
appellant revealed that Sasha Leigh had followed him into the
backyard. As pointed out above this was only done during
a late stage
under cross-examination.
[5
4] It
is correct, as noted by the court below, that in a police bag
containing the fragment of the chipped board referred to earlier,
there was an additional piece which could not be conclusively
accounted for. This, however, does not detract from the fact that
the
crucial fragment in question was undoubtedly proved to have been
taken off Sasha Leigh’s clothes and linked to the board
found
in the shed at the appellant’s house.
[5
5] The
DNA testing and the results referred to in para 48 above were also
taken into account by the court below.
[5
6] In
dealing with the statements allegedly made by the appellant to his
mother, the court below had regard to the quality of the
testimony of
the three members of the SAPS referred to above. It also had regard
to the contemporaneous note made by Inspector
Cilliers on the
instruction of Captain Naidoo and which, in relation to Sasha Leigh’s
entry into the backyard, read as follows:
‘
Ek het haar laat
kom.’
This, according to the State, is what
was said before the appellant had told his mother that he had
strangled Sasha Leigh.
[5
7] The
court below found Inspector Cilliers a credible witness and, in my
view, there is no basis to quarrel with that conclusion.
[5
8] The
court below had regard to the fact that Inspector Stoffels, a
policeman who, although he was not present during the alleged
exchange between the appellant and his mother, testified that he had
seen the two of them around that time and that neither had
been
emotional as testified to by his colleagues or indeed by the
appellant himself and his mother. The court rejected Inspector
Stoffels’ evidence but found the evidence of his three
colleagues to be acceptable.
[5
9] Whilst
Director Makhura was in my view, a contradictory and unimpressive
witness, I am unable to conclude that the court below
was wrong in
its conclusions concerning the quality of the evidence of Captain
Naidoo and Inspector Cilliers. In contradistinction,
the court below
rightly found the evidence of Mrs Fatima Isaacs unsatisfactory in
material respects. Like any mother, she was protective
of her child.
It is true, as noted by the court below, that her claim of illiteracy
was dealt a blow by the evidence of Mr Ashaan
Williams, who initially
testified that she had written out a receipt, which evidence he later
unconvincingly, sought to retract.
It is also evident that although
she asserted that she did not really understand English she
repeatedly lapsed into that language
when questioned, without any
ostensible difficulty.
[
60] In
my view, the court below correctly found the appellant an
unimpressive witness. He was evasive and contradictory. The
appellant’s
counsel’s warning to the very first witness
that his client’s memory was hampered by the fact that he had
been under
the influence of dagga at the time of Sasha Leigh’s
disappearance, was contradicted by the detailed nature of his
evidence.
One would not only expect his memory to have been affected
put his perceptive powers at material times as well. He testified
that
he knew what time he had left Kashief’s house on the first
occasion on Sunday 6 July 2003 because of the time indicator on
the
latter’s video machine. His explanation that he had no proper
recall of what had occurred until his detention and that
during the
time of detention his memory cleared and improved is unadulterated
nonsense. A further negative feature of the appellant’s
evidence flows from his responses under cross-examination when he was
questioned about time frames on the Sunday in question. A
reading of
the questions and answers will reveal that he attempted to tailor his
answers to evidence adduced by the State and that
he was not relying
on his memory but was resorting to reconstruction. The appellant’s
case mutated during the trial, from
the suggestion that drug dealers
might have been responsible for Sasha Leigh’s disappearance to
the suggestion of a police
conspiracy. The court below pointed out
that the disclosure that Sasha Leigh had followed him into the yard
came very late during
the trial. The disclosure itself evolved from
being speculative to being positive.
[
61] Courts
should always consider the cumulative effect of items of
circumstantial evidence. In Schwikkard and Van der Merwe
Principles
of Evidence
3 ed (2002) p 537-538 the learned authors point out that this
approach can also be put as follows: The state must satisfy the
court, not that each separate item of evidence is inconsistent with
the innocence of the accused, but only that the evidence taken
as a
whole is beyond a reasonable doubt inconsistent with such innocence.
[62] See also in
this regard
S
v Ntsele
1998 (2) SACR 178
(SCA) at 182D-F where the following appears:
‘
Ons
reg ve
reis
insgelyks nie dat ‘n hof slegs op absolute sekerheid sal handel
nie, maar wel op geregverdigde en redelike oortuigings
─ niks
meer en niks minder nie (
S
v Reddy and Others
1996 (2) SASV 1 (A) op 9
d
-
e
).
Voorts, wanneer ‘n hof met omstandigheidsgetuienis werk, soos
in die onderhawige geval, moet die hof nie elke brokkie getuienis
afsonderlik betrag om te besluit hoeveel gewig daaraan geheg moet
word nie. Dit is die kumulatiewe indruk wat al die brokkies tesame
het wat oorweeg moet word om te besluit of die aangeklaagde se skuld
bo redelike twyfel bewys is (
R
v De Villiers
1944 AD 493
op 508-9). Dit is inderdaad wat die Verhoorhof in hierdie
geval gedoen het.’
[6
3] In
the oft cited case of
R
v Blom
1939 AD 188
, this court set out two cardinal rules in relation to
inferential reasoning. The first is that the inference sought to be
drawn
must be consistent with all the proved facts. The second is
that the proved facts should be such that they exclude every
reasonable
inference save the one sought to de drawn.
[6
4] Following
the approach set out in the authorities that appear above and
considering the totality of the evidence one is driven
to the
conclusion that the court below was correct in finding that the
appellant was guilty of Sasha Leigh’s murder. What
follows are
in my view the material parts of the evidence viewed cumulatively,
that compel the conclusion that the court below
cannot be faulted:
t
he
appellant was the last known person to see Sasha Leigh alive.
it is undisputed
that Sasha Leigh had followed the appellant into the backyard.
when Sasha
Leigh’s grandmother enquired whether she was there the
appellant had not offered to look to see if indeed she
was still in
the yard.
the fragment of
wood found on Sasha Leigh’s clothes and the perfect match with
the wooden board found in the shed in the
appellant’s backyard
point an accusing finger at the appellant.
the items found in
the paint container
in the garage are similarly damning, particularly when one takes
into account that the appellant had not disclaimed any of the
items
or the container.
the statements
made
by
the appellant to his mother, that were correctly admitted and
accepted by the court below, viewed contextually amount to a
confession,
1
and are consistent with the evidence of the pathologist and with the
evidence of the Jacobs family that Sasha Leigh appeared
to have
followed the appellant into the yard. The recorded statement by
Inspector Cilliers reflecting an invitation by the appellant
to
Sasha Leigh to enter the yard is consistent with that evidence. The
confession is made all the more reliable thereby.
had Sasha Leigh
re-emerged from the appellants backyard, members of the Jacobs
family would have been in the best position to
see it. None of them
saw her re-emerge.
t
he
suggested conspiracy against the appellant by the police is
ludicrous. It would mean that the police, in anticipation of the
discovery of the body, would have had to plant the wooden fragment
which they would have had to acquire from the shed behind
the
appellant’s house by stealth. In addition, they would have had
to plant the items in the container in the garage and
plant Sasha
Leigh’s DNA material on them. The investigating officer,
Captain Naidoo, the forensic team and possibly the
pathologist would
have had to be part of such a conspiracy. It is so far fetched so as
to be rejected out of hand.
The unsatisfactory nature of the
appellant’s evidence completes the mosaic.
[6
5] It
is true that there are some pieces of the puzzle of the precise
nature of Sasha Leigh’s death that will always be missing.
However, in my view, in the light of all of the factors set out above
it is safe to conclude that the appellant was responsible
for her
death. In my view, the state proved beyond reasonable doubt that the
appellant murdered Sasha Leigh and the court below
correctly
convicted him.
[6
6] One
further aspect remains. Counsel for the State was constrained to
admit that the police investigation, particularly in relation
to the
collection and preservation of evidence, was flawed. Even though the
search warrant in respect of the first search had
a time limit one
would still have expected to have included a search of the garage.
Whilst the pressures under which the police
operate are appreciated
it is nevertheless necessary to warn against sloppy investigation.
Victims and accused persons deserve
better.
[6
7] For
all the reasons set out above, the following order is made:
The appeal is dismissed.
_________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For
Appellant: C Stamper
Instructed
by
D
A J Uijs SC Cape Town
For
Respondent: C van der Vijver
Instructed
by
The
Director of Public Prosecutions Cape Town
The
Director of Public Prosecutions Bloemfontein
1
The challenge to the statements allegedly spontaneously made, were
not in relation to their admissibility, but rather that they
had not
been made at all. They were made by the appellant not to the police
but to his mother in their presence. For a discussion
on whether or
not a statement amounts to a confession see D T Zeffert, A P Paizes,
A St Q Skeen
The South
African Law of Evidence
(2003) pp 471-474. In the present case the distinction between
admissions and confessions is not important.