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[2022] ZAFSHC 4
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S v Brummage (01/2021) [2022] ZAFSHC 4 (27 January 2022)
IN THE HIGH COURT
OF SOUTH AFRICA,
FREE STATE
DIVISION, BLOEMFONTEIN
Case number: 01/2021
In the matter between:
THE STATE
and
ELLISTER BRUMMAGE
JUDGMENT
BY:
MATSHAYA,
AJ
HEARD
ON:
26,
25 AND 27 JANUARY 2022
DELIVERED
ON:
27
JANUARY 2022
INTRODUCTION
[1] It
is important for judicial officers to always keep their eyes on the
ball because should they lose focus
that may lead to failure of
justice. They must always divorce themselves from emotions
irrespective of the level of temptation
and decide cases on the
strength of the evidence presented during the trial.
[2]
The above sentiments are informed by the background of this case.
This was a brutal murder of an unarmed
man who had recently been
through emotions of a self-confessed wife who was involved in acts of
infidelity. Approximately 3 weeks
after his wife had dumped her
concubine (which happened to be the accused in this case), he was
brutally attacked in front of his
flat probably with a very hard
object several times on his head and died moments later surviving his
5 year old son at the time,
Fabiano. His death remains a mystery
because no one can be held accountable for it. All that we know is
that his wife had a sleepless
night and had persistently phoned him
to return home unbeknown to him that he was going to be murdered at
the doorstep of his flat.
[3]
This is judgment on an application for the
discharge of the accused in terms of
section
174 of the Criminal Procedure Act
[1]
.
The accused is Mr Ellister Brummage a 27 year old male person
according to the indictment. He appears before this court on a charge
of premeditated murder as listed in
Part
1 of Schedule 2 of the Criminal Law Amendment
Act
[2]
.
The state alleges that on 6 September 2015 at or near Elangeni Flats,
Willows, Bloemfontein, the accused did unlawfully and intentionally
kill one Theo Samuel Benjamin Van Wyk hereinafter referred to as the
deceased, an adult male person. Adv Liebenberg appeared for
the state
and the accused is legally represented by Mr Makhele.
[4] He
pleaded not guilty to the charges and the basis of his defence was a
bare denial. Several exhibits were
handed in by consent of the
defence including but not limited to, the post mortem report and 2
photo albums depicting the murder
scene.
EVIDENCE FOR THE STATE
[5] Mr
Marlon Dearham testified that he was the deceased’s friend.
During the early evening of 5 September
2015 they went on a drinking
spree with the deceased and Marlon’s brother in law by the name
of Enslin Van Rooyen until they
dropped the deceased back at his flat
during the early hours of the following morning at about 4h00. They
left him at his flat
after he had entered inside the remote
controlled gate and said their goodbyes unbeknown to them that it was
indeed farewell. Later
during the day he learnt about the deceased’s
death.
[6]
The deceased’s wife, Mrs Monice Noria Van Wyk testified as
follows: She once had a love relationship
with the accused during the
subsistence of their marriage with the deceased from June until
towards the end of July 2015. When
she ended this extra-marital
relationship with the accused, he (i.e., accused) did not want to
accept same up to the extent of
telling her that if he could not have
her then no one would. He kept on making contact with her sometimes
via
facebook
. Even during the evening preceding the fateful
morning of the deceased’s death she had earlier spoke to the
accused on the
phone at about 18h30. This was when she received a
call from the accused and shared with him that they had a quarrel
with the deceased
pertaining to car keys up to the extent of deceased
throwing them to the couch and accused told her that the b…h
was going
to die, referring to the deceased.
[7]
During the night of 5 September Monice had gone out for the night and
returned to their flat just after 24h00
mid night, i.e., early hours
of the 6
th
. She had a sleepless night and kept on phoning
the deceased telling him to come home who eventually phoned her at
3h58 to open
the gate of the complex for him. As she approached
the door to exit, she realised that the deceased had already grabbed
the
outside door handle. In short, she then heard sounds outside
which she described like those of a paint tin that was being beaten
up.
[8]
When she came out of the flat, she saw the deceased lying near the
drain. She called him to wake up but he
could not. She could hear him
snoring and initially thought that he was too drunk and may have
fallen and injured himself. She
then saw some blood on the deceased’s
face and thought that he might have been robbed. She searched him and
found everything
in his pockets still intact ranging from cellular
phone, money and bank card.
[9]
She then went to call one of the neighbours, Mr Ricardo Koopman who
came with his wife. They phoned the ambulance.
Later, Ricardo told
her that the deceased had passed away. Ricardo also summonsed the
police forensic department. Police arrived
and interviewed Monice.
She initially refused to give the police her statement at the advice
of her attorney. On 15 September 2015
she took the police to
Kimberley and pointed out the house where the accused stayed and that
is how he was arrested. During cross
examination she confirmed that
she did not see anyone within the deceased’s precinct in the
complex.
[10] Mr Ricardo
Koopman testified and confirmed Monice’s testimony in as far as
it relates to him.
[11] The state intended
to lead evidence of admissions that were allegedly made by the
accused at Kimberley during the time of his
arrest and others that he
allegedly made on his warning statement but the defence objected.
This culminated to a trial within a
trial so as to determine their
admissibility after which I ruled them inadmissible subsequent to the
state’s concession.
[12] The state case was
then closed. Mr Makhele moved an application for the discharge of the
accused. In a nutshell, he submitted
that the state has failed to
prove a
prima facie
case against the accused. Ms Liebenberg
conceded to the application even though she did not say it in so many
words. I am grateful
for their meaningful submissions particularly
those of Ms Liebenberg which demonstrated that she is an officer of
the court who
abides by her oath of office. This demonstrated beyond
reasonable doubt that her ethical standards are beyond reproach and
that
she is here to prosecute and not persecute. This is conduct that
has since become infrequent lately in some other courts.
THE ISSUES
[13] Both the
state and the defence are in agreement that the accused must be
discharged since there is no evidence linking
him to the commission
of the offence. In the interests of judicial accountability, coupled
with the seriousness of the offence,
I deemed it prudent to prepare a
written judgment.
THE LAW
[14]
Section
174 of the Criminal Procedure Act
[3]
provides as follows:
“
If,
at the close of the case for the prosecution at any trial, the court
is of the opinion that there is no evidence that the accused
committed the offence referred to in the charge or any offence of
which he may be convicted on the charge, it may return a verdict
of
not guilty”.
[15]
To put the above statutory provision into context, it becomes
necessary to explore our jurisprudence in order to adopt the
correct
approach. In the case of
S
v Mpetha and Others
[4]
,
it was held that in a section 174 application credibility plays only
a very limited role and the evidence ignored only if it is
of such
poor quality that no reasonable man, acting carefully could possibly
accept it. The same view was shared with approval
by the
Witwatersrand Division in the case of
State
v Swartz and Another
[5]
.
[16]
Further,
Traverso
DJP
(as
she then was) summarized the legal position pertaining to section 174
applications as follows in paragraph 15 of
State
v Dewani
[6]
:
“
[15]
(a) An accused person is entitled to be discharged at the
close of the case for the prosecution if there is no possibility
of a
conviction other than if he enters the witness box and incriminates
himself;
(b)
In deciding whether an accused person is entitled to be discharged at
the close of the State’s
case, the court may take into account
the credibility of the State witnesses, even if only to a limited
extent;
(c)
Where the evidence of the State witnesses implicating the accused is
of such poor quality that it cannot
safely be relied upon, and there
is accordingly no credible evidence on record upon which a court,
acting carefully, may convict,
an application for discharge should be
granted.”
[17]
Lastly, the
Supreme
Court of Appeal
approached
the matter from a constitutional perspective in the case of
S
v Lubaxa
[7]
where Nugent AJA (as he then was), writing for the unanimous
bench, stated the following:
“
[18]
I have no doubt that an accused person (whether or
not he is represented) is entitled to be discharged at
the close of
the case for the prosecution if there is no possibility of a
conviction other than if he enters the witness box and
incriminates
himself. The failure to discharge an accused in those circumstances,
if necessary mero motu, is in my view a breach
of the rights that are
guaranteed by the Constitution and will ordinarily vitiate a
conviction based exclusively on his self-incriminatory
evidence.
[19]
The right to be discharged at that stage of trial
does not necessarily arise, in my view, from considerations
relating
to the burden of proof (or its concomitant, the presumption of
innocence) or the right of silence or the right not to
testify, but
arguably from a consideration that is of more general application.
Clearly a person ought not to be prosecuted in
the absence of a
minimum of evidence upon which he might be convicted, merely in the
expectation that at some stage he might incriminate
himself. That is
recognised by the common law principle that there should be
‘reasonable and probable’ cause to believe
that the
accused is guilty of an offence before a prosecution is initiated
(Beckenstrater v Rottcher and Theunissen
1955 (1) SA 129
(A) at
135C-E), and the constitutional protection afforded to dignity and
personal freedom (s 10 and s 12) seems to reinforce it.
It ought to
follow that if a prosecution is not to be commenced without that
minimum of evidence, so too should it cease when the
evidence finally
falls below that threshold. That will pre-eminently be so where the
prosecution has exhausted the evidence and
a conviction is no longer
possible except by self-incrimination. A fair trial, in my view,
would at that stage be stopped, for
it threatens thereafter to
infringe other constitutional rights protected by s 10 and s 12.”
ANALYSIS
[18] As already
alluded to earlier, the test at this stage is whether there is a
prima facie
case against the accused or not whether on the
main count or the competent verdicts.
[19] Mr Makhele
and Ms Liebenberg correctly submitted that the only witness who was
closest to linking the accused was the
deceased’s wife Monice,
when she testified about the following:
19.1 That when she
decided to end her love relationship with the accused, he (ie, the
accused) vowed that if he could not have her
then no one else could;
and
19.2 That during the
evening preceding the morning of the deceased’s death, when she
had a telephonic conversation with the
accused telling him about
their quarrel with the deceased about car keys, the accused told her
that this b…h (
sic
) was going to die that night.
[20] Other than
the above, there is nothing that links him to the commission of this
offence. In my view, it would be too
far- fetched in the extremes to
associate him with this murder without more.
[21]
Furthermore, refusing this application would by implication, have the
undesirable effect of exposing the accused to
the risk of testifying
and end up incriminating himself to the detriment of his
constitutionally protected rights as enunciated
in the
Lubaxa
[8]
case cited earlier.
CONCLUSION
[22] In the
absence of a prima facie case that links the accused to the
commission of this offence, the logical consequence
is that he must
be acquitted of the charges.
VERDICT
[23]
The accused is discharged of the crime of murder in terms of
section
174 of the Criminal Procedure Act
[9]
.
MM
MATSHAYA, AJ
APPEARANCES:
On
behalf of the
State
:
Adv.
E Liebenburg
Instructed
by:
Director
of Public Prosecutions
Waterfall
Building
Cnr.
Aliwal & Fountein Street
BLOEMFONTEIN
On
behalf of the
Defence
:
Mr
Mokhele
Instructed
by:
Mokhele
Inc
.
117
President Reitz Ave
Westdene
BLOEMFONTEIN
[1]
Act
51 of 1977.
[2]
Act
105 of 1997.
[3]
Supra.
[4]
1983
(4) SA 262
(C) at 263H.
[5]
2001
(1) SACR 334.
[6]
Case
No. CC15/2014 ZAWCHC, delivered on 8 December 2014.
[7]
2001
(2) SACR 703
, paragraphs 18 and 19 where Nugent AJA.
[8]
Supra.
[9]
Supra.