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[2018] ZANCHC 80
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S v De Klerk and Others (CA&R 16/2018) [2018] ZANCHC 80 (30 October 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(Gariep
Local Circuit Division, Upington)
CASE NO.
: CA&R 16/2018
DATE
HEARD : 30/07/2018-08/08/2018
DATE
DELIVERED : 30 OCTOBER 2018
In
the matter between:
THE
STATE
and
DE
KLERK, ROMEO
RICARDO
1
st
Accused
ROOI,
VICKUS
LAURENCE
2
nd
Accused
DE
KLERK, HENDRIK
HERMANUS
3
rd
Accused
Coram:
Olivier
ADJP
JUDGMENT
Olivier
ADJP:
INTRODUCTION
[1.]
The three accused are
Mr Romeo Ricardo De Klerk, Mr Vickus Laurence Rooi and Mr Hendrik
Hermanus De Klerk. They are all adult
males, according to the
indictment respectively aged 30, 29 and 55 years old. They will
in what follows respectively be referred
to as accused 1, accused 2
and accused 3.
[2.]
The original
indictment, which contained three charges, was substituted with an
indictment with five counts, and annexure “A”
of the
amended indictment, which is a list of stolen property, now includes
a 19
th
item, namely a .22
revolver valued at R2 500.00.
[3.]
The events that led to
the charges against the accused took place on 21 July 2017 on a
farm situated approximately 20 km outside
Upington, in the district
of Gordonia and therefore within the area of jurisdiction of this
Court. The farm belongs to the
male complainant identified in
count 1 of the indictment, and he lived there with his wife, the
female complainant, identified
in counts 1, 2 and 3. To avoid
disclosing the identity of the female complainant to the general
public, the two complainants will
in this judgment be referred to as,
respectively, Mr L and Mrs L.
[4.]
It appears to be either
common cause or not seriously disputed that on that day the following
events transpired. At about
15:30 Mr L left the house on the
farm to tend to his stock. He returned to the house at around
18:30. After he had
entered the house, by going through a gauze
door leading to a veranda, crossing the veranda, and then going
through a steel trellis
gate and across a small portal and eventually
going through the kitchen door, he heard their dogs barking outside.
[5.]
He went back the same
way to investigate and, as he exited through the veranda door, he was
accosted by accused 1 and accused 2.
Both of them had stockings
over their faces, with holes in it for their eyes and mouths.
[6.]
Accused 1 hit Mr L on
the head with an iron pipe or rod. Accused 2 hit him with a
wooden pole. When Mr L used his left
forearm to fend off a blow
by the wooden pole, it broke his left forearm. In the process
Mr L sustained open wounds to his
head and his face; wounds that
later needed stitches. His left forearm was fractured and he
spent about two months with it
in plaster.
[7.]
Mr L was then taken to
the kitchen by accused 1 and accused 2. Accused 3 was at that
stage also at the house, but not inside
it.
[8.]
Mr L was forced to sit
in a chair and his arms were bound to the armrests with tape.
It was demanded that he tell them
where his money was. He told
them that he had paid his workers’ wages, that there was only
about R200.00 in the house
and that they could take that. They
took this money.
[9.]
In the process Mr L’s
eyes and mouth were also covered with tape. He was kicked and
hit on his chest and stomach.
His feet were trampled upon.
It was never denied in cross-examination that this is in fact what
happened. What was
placed in dispute is which of the accused
had done what to Mr L.
[10.]
Accused 1 and 2
demanded to know where Mr L’s money was, and he was told that
if he did not tell them, he would be killed.
It was also
threatened that Mr L’s private parts would be cut off.
[11.]
In demanding that Mr L
tell them where in the house they could find money, reference was
specifically made, according to Mr L by
accused 2, to money made from
manufacturing tombstones and from the sale of goats. It
appeared that tombstones were made
on the farm, and sold through
orders received in Upington. It was also undisputed that Mr L
had sold all his goats, a total
of 125, shortly before these events.
It was clear that one or more of the accused had knowledge of these
facts. It
was in fact undisputed that accused 3 knew about the
sale of the goats, and I will revert to this in due course.
[12.]
Mr L’s
bloodstained hat was pulled over his eyes, and the plastic bag was
also pulled over his face. He had difficulty
breathing.
[13.]
During that time Mr L
also sustained a deep cut to one of his fingers, which almost severed
part of it.
[14.]
Shortly after 19:00
that evening Mrs L arrived at the house in her vehicle. She got
out and as she was opening the gate outside
the house, a male person
grabbed her from behind, held a knife to her throat and forced her
back to her vehicle, in which her handbag
was. At his demand
she took out the money that was in her purse, according to her about
R300.00, and gave it to him, as well
as her Samsung cell phone, which
had also been in her handbag. As will in due course appear,
that person was accused 3.
[15.]
Mrs L was then forced
to the house, and into the kitchen.
[16.]
In the kitchen she
found Mr L sitting in a chair, bound and with a plastic bag and tape
over his face, eyes and mouth. There
were two other men in the
kitchen, a tall one and a shorter one. It is common cause that
the tall one was accused 1 and the
other accused 2.
[17.]
Mrs L was forced to sit
in a chair and she too was bound to the chair with what was referred
to as masking or sellotape. Her
head was also covered with a
plastic bag, with an opening for her nose, and masking tape or
sellotape was also put over the plastic
bag to cover her eyes and
mouth, just like in the case of Mr L.
[18.]
It was repeatedly
demanded that Mr and Mrs L should say where the money was kept in the
house.
[19.]
At their demand Mrs L
told accused 1 and accused 2 where the key to the safe, and the safe
itself, were. Two revolvers, one
.22 calibre and one .38
special calibre Rossi, and a .22 rifle, were taken from the safe, as
well as a magazine of the .22 rifle
and two laptop computers.
[20.]
When no money was found
in the safe, further demands were made that the accused be told where
the money was kept in the house.
Mr and Mrs L were asked what
had become of the money from the sale of the goats.
[21.]
Mr L testified that he
had more than once felt a firearm being held against his head and
heard a clicking noise as the trigger was
pulled, but no shot went
off. It was not in dispute that accused 1 had pulled the
trigger of one of the firearms, although
it was put to Mr L that
accused 1 could not remember whether he had done so more than once.
[22.]
Mrs L told the two
accused that her bankcards were in her handbag and she also told them
what the pin numbers were, so that they
could withdraw money from her
account by means of the cards. By that time her handbag, which
she had earlier left in her
vehicle, had been brought into the house.
[23.]
Accused 1 inflicted a
stab wound to the inner thigh of Mrs L. Her evidence was that
this happened when she protested against
him looking inside her
trousers and panty for another cell phone. I will get to what
the version of accused 1 was about this
wound. The wound was
closed with stitches the next day.
[24.]
Accused 1 then
proceeded to put his hand inside Mrs L’s panty and he touched
her private parts.
[25.]
Just before accused 2
left to withdraw money from Mrs L’s bank accounts, he made the
statement, in rather coarse terms, that
accused 1, who was going to
stay behind with Mr and Mrs L, was going to have intercourse with Mrs
L.
[26.]
Accused 2 then left the
kitchen and Mr and Mrs L could hear her vehicle leaving.
[27.]
Accused 1 then indeed
untied Mrs L and took her to the laundry. There he had sexual
intercourse with her, by penetrating her
vagina with his penis,
without her consent, and therefore raped her. He did not use a
condom.
[28.]
Accused 1 then took Mrs
L back to the kitchen. There Mrs L noticed that Mr L was not
doing well. His head was hanging
on his chest and the part of
his face that was visible below the plastic bag had a grey
appearance. It appeared as if Mr
L was struggling to breathe.
[29.]
Mrs L then took
scissors from a drawer in the kitchen and cut off the plastic bag and
the tape from the face of Mr L.
[30.]
It is not in dispute
that, in the meantime, the amounts of R 2 500.00 and R 1 800.00
had been withdrawn from, respectively,
the Standard Bank and
Absa Bank accounts of Mrs L. The withdrawals were made at an ATM
in Upington. The vehicle was
driven there by accused 3.
[31.]
When accused 2 and
accused 3 returned accused 2 said that they had brought women with
them. Mr L was once again blindfolded
with a plastic bag and
with masking tape over his eyes and mouth. Mrs L’s hands
were bound together, but not again
to the chair. At some stage
during the events thereafter Mr and Mrs L heard the voice of a woman.
[32.]
Accused 1 had, in the
meantime, started to drink brandy from a full bottle on the kitchen
table.
[33.]
Further demands were
made that the accused be told where they could find money in the
house. Mr and Mrs L were also asked
whether there was money
hidden in the ceiling of the house.
[34.]
Mr L was forced from
the kitchen to one of the bedrooms, referred to as the spare room.
[35.]
In the spare room, and
while he sat bound to a chair, a duvet or blanket was draped over his
head and spirits and medical alcohol
was poured over it. It was
not disputed in cross-examination on behalf of accused 1 and accused
3 that this happened, and
that threats were made to set Mr L alight
should it not be disclosed where money could be found in the house.
I will at a
later stage deal with the version of accused 2 in this
regard.
[36.]
A finger of Mr L was
also at that stage burned, according to him with a match or a
lighter, and he was asked how it felt.
[37.]
The house was
ransacked. A double bed in the spare room was overturned in
search of money. During the course of the
evening cupboards
with opened, and the contents thereof were thrown on the floors.
Several items were also put on the kitchen
table.
[38.]
A ladder was placed
underneath a trapdoor in the ceiling.
[39.]
A severe blow was
inflicted to the head of Mr L.
[40.]
Mrs L had in the
meantime been taken from the kitchen to a bathroom. There she
was made to sit on a piano stool and bound
to it by her legs.
[41.]
Accused 1 approached
Mrs L there and threatened to rape her again.
[42.]
Mrs L told the accused
that, if they went back to the ATM with her bankcards after midnight,
it would be possible to withdraw further
amounts of money, as a new
limit would then be in operation for the next day.
[43.]
It was Mrs L’s
evidence that the person who had initially brought her from the
vehicle to the kitchen, had on two occasions
approached her in the
bathroom to find out how to turn off the headlights of her vehicle.
It was disputed that accused 3
had done so, and it was put to Mrs L,
on behalf of accused 2, that it was in fact accused 2 who had done
so. Mrs L was adamant
that it was the third attacker, and she
added that he had also come there a third time, when he told her that
he had never intended
anybody to get hurt.
[44.]
At around approximately
23:30 the accused left in the vehicle of Mrs L. It was
threatened that, if more money could not be
withdrawn, the accused
would return and kill Mr and Ms L.
[45.]
Mrs L managed to untie
herself and she found Mr L, where he was still sitting in the spare
room, bound to a chair and with the spirits
and alcohol soaked duvet
over his head.
[46.]
Mrs L phoned the police
and reported the incident. She furnished them with a
description of her vehicle.
[47.]
The items listed in
annexure “A” to the amended indictment were stolen during
the incident. Both Mr and Mrs L
confirmed the values set out in
annexure “A”. It appeared that other items, which
are not listed in annexure
“A”, had also been taken from
the house. These include a box of ragdolls, a magazine for a
.22 rifle and a camera
lens.
[48.]
The police arrived at
the house about 30 minutes after Mrs L’s phone call.
[49.]
In the meantime,
however, Mrs L’s vehicle had been stopped by police in
Upington.
[50.]
Accused 3 was the
driver. Both accused 1 and accused 2 were passengers, as well
as a lady by the name of Dochelle Januarie.
[51.]
A revolver was found in
the possession of accused 3, as well as R750.00, an empty firearm
magazine and the keys of the vehicle.
[52.]
In the possession of
accused 1 the police found R 1 077.30 and the MobiWise cell
phone of Mr L, and on his head there was what
was described as
stockings.
[53.]
The evidence presented
by the prosecution was that accused 2 was found to be in possession
of R1 685.40, a safe key with a
green key holder, a cut-off part
of a pair of stockings and what was described by Capt Visagie as
several rounds of ammunition
of different calibres. In
cross-examination on behalf of accused 2 it was denied that he had
been found in possession of ammunition,
and it was put to Capt.
Visagie that accused 2 only had R600.00 in his possession.
[54.]
Cash in the amount of
R330.50 was found in the possession of Ms Januarie.
[55.]
With the exception of
the .22 revolver, which is item 19 in annexure “A”, all
the other stolen property was recovered.
[56.]
At one stage, after the
vehicle had been stopped by the police, accused 2 fled, but he was
apprehended shortly thereafter.
[57.]
The .38 special
revolver, item 9 in annexure “A” to the amended
indictment, was photographed there, at the scene where
the vehicle
had been stopped and where the accused were arrested, and a ballistic
examination later revealed that both this revolver
and the .22 rifle,
that was found inside the vehicle, were firearms as defined in the
Firearms
Control Act
,
60 of 2000, and that both were in working condition.
CHARGES
COUNT
1
[58.]
In count 1 all three
accused are charged with having unlawfully and intentionally broken
into the house of Mr L on the farm with
the intent to rob, and of
having unlawfully and intentionally then committed a robbery with
aggravating circumstances in taking
with force from the possession of
Mr and Mrs L the property listed in annexure “A” to the
amended indictment.
The allegation in count 1 is that the
aggravating circumstances consisted of the accused having wielded
firearms and /or dangerous
weapons and having inflicted grievous
bodily harm to Mr and Mrs L during the commission of those offences.
All three accused
pleaded not guilty to count 1.
Plea-Explanations:
[59.]
Accused 1 offered no
explanation of this plea.
[60.]
In his plea-explanation
accused 2 admitted only having been on the scene at the time of the
incident, and stated that he had been
forced by accused 3 to be
present. He placed all other allegations regarding the
housebreaking and robbery in dispute.
[61.]
In his plea-explanation
accused 3 also admitted having been present at the house at the time
of the incident, but according to him
he had waited outside the house
while accused 1 and accused 2 were inside, and had distanced himself
from the robbery. His
explanation for his presence at the house
was that he had been employed by Mr L and that he had asked accused 1
and accused 2 to
accompany him to the house to get his salary from Mr
L. It was stated that it had been unsafe to walk there or from
there
alone, as people were robbed in that vicinity.
Cross-examination
for accused 1
:
[62.]
In cross-examination it
emerged that the version of accused 1 is actually that he and accused
2 accompanied accused 3 to the house
of Mr and Mrs L because,
according to what accused 3 had said, Mr L owed accused 3 money that
he wanted to collect. Mr L
was not at home when they got
there. It was only when accused 3 put an iron rod in the hands
of accused 1 and a wooden pole
in the hands of accused 2, that
accused 1 realised that the purpose of the visit was to rob.
[63.]
It was admitted that
accused 1 had struck Mr L with the iron rod, but according to what
was put to Mr L only after he had in fact
first hit accused 1, or had
attempted to do so.
[64.]
It was furthermore
admitted, in cross-examination, that accused 1 had been the cause of
a stab wound to Mrs L. His version
appeared to be that it was
inflicted by accident. It was stated in cross-examination that
accused 1 had stumbled and had
in the process grabbed a knife on a
table and that he had then, as he fell, accidentally stabbed Mrs L
with the knife.
[65.]
It was admitted
explicitly that accused 1 took Mr L’s cell phone, which had
been lying on a table in the kitchen. The
theft of the other
items listed in annexure “A” to the amended indictment
was not disputed in cross-examination on
behalf of accused 1.
[66.]
According to what was
stated in cross-examination on behalf of accused 1 he had been under
the influence of liquor, after having
consumed sweet wine and
approximately seven beers before leaving for the farm. It was
put to Mr L that accused 1 had also
earlier that day smoked dagga and
mandrax.
Cross-examination
for accused 2
:
[67.]
On behalf of accused 2
it was put to Mr and Mrs L in cross-examination that he and accused 1
accompanied accused 3 to the farm while
accused 2 was under the
impression that the purpose of their visit was to collect money that
Mr L owed to accused 3.
[68.]
It was denied that any
of the accused had access to the house before Mr L’s arrival.
[69.]
It was put to Mr L
that, once they had arrived at the farm, the plan changed when
accused 3 decided that Mr L was to be robbed,
and forced accused 1
and accused 2 to take part in the robbery. It was put to Mr L
that accused 3 had threatened to kill
accused 1 and accused 2 if they
refused, and that he was known to accused 2 as a dangerous man.
It was put to Mr L that accused
3 also accused him of being unable to
support his wife, who is the daughter of accused 3.
[70.]
It appeared to also be
the version of accused 2 that accused 3 placed an iron rod in the
hands of accused 1 and a wooden pole in
the hands of accused 2.
It was admitted that accused 2 had struck Mr L with the wooden pole.
It was denied, however,
that he had struck Mr L on his head or in his
face.
[71.]
It was also admitted in
cross-examination that accused 2 had tied Mr L’s hands, had
demanded money from him, had searched
the house for the safe and that
he had removed the contents of the safe and had taken it to the
kitchen, but it was put to Mr L
that accused 2 had done so on the
instructions of accused 3.
Accused
3
:
[72.]
I will deal later with
the version of accused 3 regarding this count, as he was the only one
of the three accused who took the stand.
COUNTS
2 AND 3
[73.]
Counts 2 and 3 are only
against accused 1. Count 2 is that he had unlawfully and
intentionally sexually violated Mrs L by
touching her private parts
without her consent, in contravention of section 5(1) of
Act
32 of 2007
,
in other words sexual assault.
[74.]
Count 3 is that accused
1 had unlawfully and intentionally sexually penetrated Mrs L without
her consent by inserting his penis
into her vagina.
[75.]
Accused 1 pleaded not
guilty to count 2 and gave no explanation of that plea, but during
the course of the evidence for the prosecution,
and more specifically
that of Mrs L, accused 1 changed his plea of not guilty to count 2 to
one of guilty. Through his counsel
all of the allegations in
that count were then admitted.
[76.]
He pleaded guilty to
count 3 from the outset and in explanation of that plea and through
his counsel, Ms Steytler, he admitted all
the allegations in count 3.
COUNT
4
[77.]
Count 4 is only against
accused 2. It is alleged that, on the same date and at or near
Upington, and therefore still within
the area of jurisdiction of this
Court, accused 2 had unlawfully and intentionally been in possession
of ammunition without having
a license, permit or authorisation in
terms of the
Firearms
Control Act
in
respect of a firearm capable of discharging that ammunition, and that
accused 2 had thereby contravened section 90 of the Act.
[78.]
Accused 2 pleaded not
guilty to this count and simply denied having been in possession of
such ammunition, also specifically at
the time of his arrest.
COUNT
5
[79.]
Count 5 is only against
accused 3. It is alleged that, on the same date and also at or
near Upington, accused 3 unlawfully
and intentionally had in his
possession a firearm, described in the indictment as a .38 “
revolver
pistol
”
with
serial number W189104, without holding a licence, permit or
authorisation in terms of the
Firearms
Control Act
for
that firearm, thereby contravening the provisions of section 3 of
that Act.
[80.]
Accused 3 pleaded not
guilty to this charge. In his plea-explanation he admitted that
the police had found a firearm in his
possession, but alleged that he
never had the intention of possessing it. It was stated that it
ended up in his possession
after he had taken it away from accused 1,
who had been wielding it at people, posing a danger to them.
EVIDENCE
[81.]
The prosecution
presented the evidence of Mr and Mrs L, Capt. Visagie, Sgt. Britz,
Const. Olifant, Const. Modisaotsile and Mr Mongale.
Ms Januarie
was a state witness, but her evidence was not presented and when the
state’s case was closed she was made available
to the defence
as a witness.
[82.]
Photos and a sketch
plan were handed in as exhibits “A” and “B”,
a medical report in respect of Mrs L as
exhibit “C”,
Standard Bank and ABSA Bank statements as respectively exhibits “D”
and “E” and
an affidavit regarding the ballistic
examination of the .38 special revolver and the .22 rifle as exhibit
“F”.
[83.]
The cases of both
accused 1 and accused 2 were closed without any evidence having been
presented by them or on their behalf.
In the case of accused 3
only his own evidence was presented in his defence.
[84.]
All of the state
witnesses made good impressions as witnesses, and more particularly
so Mr and Mrs L. It has not been argued,
by any of the counsel
for the accused, that the version of Mr and Mrs L about the events of
that night, and more specifically as
far as the robbery is concerned,
should be disbelieved.
[85.]
The evidence of Mr L
about when the built-in lock of the steel gate had been tampered with
was not above criticism. His initial
evidence that he noticed
signs of tampering when he arrived at the house, created the
impression that the lock must have been tampered
with that day, and
while he was away, and he in fact later confirmed this upon a
question by me. He later conceded that the
lock may have been
tampered with during a previous unrelated attempted burglary.
Mr L contradicted himself about whether
he had unlocked the built-in
lock upon his return to the house.
[86.]
The same could be said
about his evidence regarding the broken wooden kitchen door.
Again his initial evidence left one with
the impression that the door
had been broken during his absence, and on that day, but he later
explained that the damage had actually
been caused during an earlier
unrelated incident.
[87.]
These unsatisfactory
aspects of Mr L’s evidence pertain only to the allegation of
housebreaking. His evidence about
the events inside the house
was in any event corroborated in all material respects by that of Ms
L, and even by what was put to
him and Ms L in cross-examination.
[88.]
There was also an
inconsistency in Mr L’s evidence as regards the chair to which
he had been tied and on which he had sat
in, respectively, the
kitchen and the spare room. On his version it was one and the
same chair and it remained tied to him
as he was forced from the
kitchen to the spare room. However, the chair that is described
in the key to exhibit “A”
as point ‘C’ in the
kitchen and as point ‘D’ in the spare room, is clearly
not the same chair. This
is, however, completely immaterial for
purposes of what eventually appeared to be in dispute. In the
end it appeared to be
undisputed that Mr L was bound to a chair in
the kitchen, and also that he later sat in the spare room, also tied
to a chair.
That Mr L was taken to the spare room was in fact
also the evidence of accused 3.
[89.]
In his evidence in
chief Mr L said that he had not kept any ammunition in the safe.
He testified that the objects in the plastic
bag that was handed in
as exhibit 2 had “
apparently
”
been in the pocket of
an army overall, next to the safe. When I tried to clear this
up with Mr L at a later stage, he said
that he did not know whether
they had been found in the pocket of what was clearly the same
garment that he had referred to in
his evidence in chief. Later
yet, and in further cross-examination for accused 2, Mr L was adamant
that the objects had been
locked inside the safe prior to the
attack. In the light of the conclusion to which I have come as
regards count 4 this aspect
is not really of any further concern.
COUNT
1: HOUSEBREAKING
[90.]
It is in dispute that
the accused, or any one of them, had broken into the house of Mr and
Mrs L.
[91.]
Mr Makhaga, counsel for
the prosecution, conceded right from the outset that it has not been
proved beyond reasonable doubt that
any of the three accused had on
that day broken into the house. In my view this concession was
correct and I am therefore
not going to deal with the evidence in
this regard in any detail.
[92.]
I have already alluded
to the unsatisfactory aspects of Mr L’s evidence in this
regard.
[93.]
A further problem is
that Mr L’s evidence was that, when he entered the kitchen upon
returning to the house, he had found
everything there to be in
order. When regard is had to the state of the kitchen and of
the rest of the house at the end of
that evening, there was therefore
not initially any indication that anybody had accessed the kitchen in
Mr L’s absence.
On the evidence the reasonable
possibility that the accused had not entered the house prior to Mr
L’s arrival has not been
excluded.
[94.]
It was never argued
that any of the actions of the accused after the arrival of Mr L
constituted the crime of housebreaking.
COUNT
1: ROBBERY
Accused
1:
[95.]
As already mentioned it
is not really in dispute that the complainants were robbed of,
inter
alia
,
the items listed in annexure “A” to the amended
indictment.
[96.]
It is also not in
dispute that all three accused were on the scene of the robbery, as
well as in the vehicle of Mrs L when it was
pulled over by the police
with all the stolen property in it, with the possible exception of
the .22 revolver, item 19.
[97.]
That accused 1 only hit
Mr L with the steel rod after Mr L had hit him or attempted to hit
him, is patently false. It is clear
that Mr L was taken
completely by surprise when he was accosted by his two attackers.
Even if Mr L had in the process hit
accused 1, he would clearly have
done so in self-defence.
[98.]
In any event, Mr L’s
evidence that, after having been hit by,
inter
alia
,
accused 1, he was physically forced into the kitchen, tied to a chair
and then further assaulted there, was not disputed in
cross-examination.
Counsel for accused 1 went no further in
cross-examination than to put it to Mr L that accused 1 had not
assaulted Mr L inside
the kitchen. It was not denied that an
assault had in fact taken place in the kitchen while Mr L was tied to
the chair.
The same applies to Mr L’s evidence about the
injury to his little finger.
[99.]
The explanation of
accused 1 for his presence at the house of Mr and Mrs L, namely that
he and accused 2 had accompanied accused
3 there so that he could
collect money from Mr L, is clearly false. I will deal with
this explanation in greater detail when
I get to the position of
accused 3.
[100.]
This version does not
explain the presence of the stockings over the faces of accused 1 and
accused 2 when Mr L was confronted,
and which was still on the head
of accused 1 when he was arrested.
[101.]
In my view it is clear
that all three accused went there as a group, with the plan to
violently deprive Mr and Mrs L of their money
and other property.
Even on the version of accused 1, as put in cross-examination, he and
accused 2 had right from the beginning
been armed, as they were
waiting for Mr L to come out of the house and while hiding behind a
wall, the one with an iron rod and
the other with a wooden pole.
It is completely far-fetched, and not reasonably possible, that both
accused 1 and 2, after
having walked all the way to the farm with
only good intentions, would have been so intimidated by accused 3
that they would not
only have allowed him to put the rod and the pole
in their hands, but would also have proceeded to attack Mr L, while
accused 3
stood aside.
[102.]
The actions of accused
1 inside the house were not, even on his own version, the actions of
an unwilling participant or of a person
overcome by the effects of
alcohol or drugs.
[103.]
On his own version he
had no problem to take Mr L’s cell phone, which was lying on
the kitchen table. On his own version
he had no problem to take
one of the firearms that had been removed from the safe, and to pull
its trigger. He walked around
the house with a knife that he
had on his own initiative found inside the drawer of a desk in the
kitchen.
[104.]
It was also entirely
accused 1’s own initiative to sexually assault Mrs L, and
thereafter to untie her, take her to the laundry
and to rape her
there.
[105.]
Accused 1 did not, when
he was left alone with Mr and Mrs L, in any way distance himself from
the robbery. He could, at that
stage, have taken the
opportunity to leave. He did not. He stayed, kept watch
over the complainants and awaited the
return of the other accused.
[106.]
He accompanied them
when they eventually left the farm, in the stolen vehicle containing
the stolen property, and when he was arrested
he was clearly in
possession of,
inter
alia,
a
part of the money that had been withdrawn from the bank accounts of
Mrs L and of the stolen cell phone.
[107.]
In my view there can be
no doubt that accused 1 had not only never distanced himself from the
actions of his co-accused, but had
in fact associated himself with
it.
[108.]
I have absolutely no
hesitation to reject as false the version that accused 1 had been
forced into participating in the robbery
and that even then he had
done so because of the liquor that he had earlier consumed and the
drugs that he had earlier used.
[109.]
Accused 1 did not take
the stand to have his version tested in cross-examination.
[110.]
It was the evidence of
both Mr and Ms L that accused 1 only began to show signs of
intoxication at a late stage of the events, and
after he had consumed
brandy that he had found in the kitchen. It must in any event be
remembered that, whatever alcohol he may
have consumed or drugs he
may have taken in Upington, he had on his own version thereafter
walked from Upington to the farm of
Mr L, a distance of about 20 km.
[111.]
Similarly I have no
hesitation to reject as false the version that the stab wound to the
leg of Mrs L had been inflicted by accident.
When this version
was put to Mrs L she explained, in clear terms, why this was not
true. It was clear from her evidence that
accused 1 had not
stumbled and that he had in fact been standing right next to her when
he inflicted the stab wound, and that he
had done so when she would
not agree to him putting his hand inside her pants.
Accused
2:
[112.]
This brings me to the
version of accused 2 as far as the count of robbery is concerned.
[113.]
Once again, the actions
of accused 2 during the events of that night were clearly not that of
an innocent man being forced to take
part in an attack that he had
not planned or anticipated.
[114.]
He too was masked when
he attacked Mr L. His version does not account for this.
[115.]
The evidence of both Mr
and Mrs L was to the effect that accused 2 played a leading part in
the robbery. They corroborated
one another on this in many
respects. Accused 2 was, on their evidence, the one who had
made the repeated demands that they
disclose where money could be
found, and that suggested the transfer of money into his own bank
account, and significantly not
into the bank account of accused 3.
When accused 3 brought Ms L into the kitchen, accused 2 needed no
instructions before
tying Ms L to a chair. When accused 2
returned after having withdrawn money from Ms L’s bank
accounts, he was the one
who boasted about having brought women and
who was dissatisfied about the fact that Ms L had been untied and
that Mr L’s
face had been opened. Both Mr and Mrs L
testified about indeed hearing the voice of a woman after the return
of accused 2.
[116.]
Accused 2 was clearly
the one that threatened to set Mr L alight if they were not told
where they could find money. The cross-examination
on behalf of
accused 2 went no further than to deny knowledge of the spirits and
alcohol soaked duvet over Mr L’s head, and
of his involvement
therein. This denial of knowledge is difficult to reconcile
with a later statement on behalf of accused
2, also during the
cross-examination of Mr L, that accused 2 had been concerned about
the blanket over Mr L’s head and that
he had taken it off and
placed it behind Mr L’s back. The evidence of Mrs L about
the half empty bottle of spirits
which accused 2 placed on the side
of the bath, about his threat that Mr L would be set alight if they
were not told where the
money was and about how she eventually found
Mr L with the duvet over his head, corroborated Mr L’s version
in this regard.
Even accused 3 said that Mr L had been covered.
[117.]
Accused 2 had many
opportunities to escape from accused 3, if the latter had really
posed a threat to him. He did not.
He accompanied accused
3 from the farm to the ATM in Upington and back to the farm.
[118.]
He too eventually left
the farm as a passenger in the stolen vehicle.
[119.]
When the vehicle was
stopped by the police he did not tell them that he was in the vehicle
because of threats made by accused 3.
Instead he ran away.
His version that he fled because the police assaulted them, is
clearly false. The witnesses called
to testify about that part
of the events were unified in their denial of such assaults. There
would have been no reason for any
of the members of the police on
that scene to assault accused 2, or any of the other occupants of the
stolen vehicle. The
vehicle was brought to a standstill when
pulled over by the police and there is no suggestion that any of the
occupants had, for
example, offered resistance.
[120.]
Like accused 1, accused
2 also did not have the conviction to take the stand.
[121.]
The version of accused
2 as regards the count of robbery is therefore also rejected insofar
as it is inconsistent with the evidence
of Mr and Mrs L, and in as
much as it is alleged that accused 2 had been coerced into taking
part in the robbery. It is clear
that all three accused acted
with the common purpose of violently stealing whatever money and
property they could lay their hands
on.
[122.]
In cross-examination of
Mr L it was put to him that accused 2 had been under the influence of
drugs. Mr L’s response
was that all the accused, and
therefore also accused 2, acted like people who knew exactly what
they were doing. This fits
in perfectly with the evidence of
Mrs L about the role of accused 2 inside the house, and his behaviour
there. In any event,
no further detail was disclosed as regards
what drugs accused 2 had used, and when, and he never took the stand
to explain what
role the drugs eventually played. The
cross-examination of his counsel, Mr Pretorius, in any event never
went as far as to
claim that he had not known what was happening, or
that he could not be held accountable. In fact, the other
statements made
on his behalf in cross-examination about the events
in the house were quite detailed in nature.
Accused
3:
[123.]
This brings me to
accused 3, and the count of robbery against him.
[124.]
Unlike the other two
accused, accused 3 did testify. Suffice to say that accused 3
was an exceptionally poor witness.
There were long silences
when he found it difficult to answer simple and straightforward
questions. He frequently avoided
answering such questions by
repeating other evidence that was completely irrelevant to the
questions. He became obviously
irritated and even agitated by
the questions posed to him. Apart from this there were many
contradictions and inconsistencies
in his evidence, to only a few of
which I will refer.
[125.]
Whereas it had been put
on record by his attorney that accused 3 had never himself entered
the house of Mr L that night, it eventually
appeared in
cross-examination of accused 3 that he had in fact more than once
done so.
[126.]
That he had gone to the
farm that day to collect R15 000.00 which Mr L had promised him
to build himself a house with, is clearly
a lie:
126.1
In his plea-explanation it was stated that accused 3 had gone to Mr L
to collect his “
salary
”
.
A promised gift of R15 000.00 could certainly not be described
as a “
salary
”
.
126.2
Why would Mr L have made such a promise? This was never
explained by accused 3, who on his own evidence had left from
his own
house that day to go to the farm of Mr L, which means that he already
had a house.
126.3
Accused 3 in any event later testified that the arrangement had
actually been that Mr L would give him either the amount of
R15 000.00 or corrugated iron with which to erect a house.
If this was so, why would he have gone to the farm with the
expectation to receive the money in cash? What would he have
done if Mr L chose the option of giving him the corrugated iron?
Was he going to carry it all the way back to Upington?
126.4
His attorney put it to Mr L that accused 3 would not have had any
reason to think that Mr L had money in the house.
If this is
so, why would he have gone there expecting to receive the promised
amount of R15 000.00?
126.5
Accused 3 testified, in cross-examination only, that Mr L was a
person who liked to argue and who could be expected to deny
his
liabilities, because he had in the past dismissed workers without
paying them. Why then would accused 3 have had reason
to expect
Mr L to honour his promise to him that day, when on his own version
he went there without any prior arrangement with
Mr L?
126.6
It was only in cross-examination that accused 3 came with a slightly
different version when he said that, in addition to going
to the farm
to collect the promised R15 000.00, he also anticipated that Mr
L could request him to finish work that he had
not finished when he
had last worked there. This was never put to Mr L, who
testified that he had fully paid accused 3 when
he had worked there
the last time. Would accused 3 really have gone there to work
on a Friday evening?
126.7
Accused 3 had, the day before the attack, not arrived for work on the
farm when he was supposed to be there. He could
have gone then
and asked Mr L about the R15 000.00.
126.8
Finally accused 3 did not, on his own version, at any stage of the
events of that night say anything to Mr L about the alleged
promise,
or ask him for that money.
[127.]
That accused 3 took
accused 1 and accused 2 with him so that he would not have to return
from the farm alone, is also clearly false:
127.1
If it was indeed so that it was dangerous to walk alone at night in
that area, he could have gone there earlier, during daytime,
and not
on a Friday evening.
127.2
In any event, it was his own evidence, in the end, that he had left
his house alone when he started his walk to the farm,
and that even
after he had along the way again come across accused 1 and 2, he had
again proceeded alone, on his way to the farm.
According to him
he arrived at the farm alone, and it was only while he was waiting
there that the other two accused arrived there.
127.3
He contradicted himself about the circumstances of his alleged
meeting with accused 1 and accused 2, while on his way to the
farm.
His first version was that he came across them somewhere
along the road, in the bushes, but later he said that
he actually
found them drinking at their friend’s place.
127.4
Why did accused 3, on his version, wait for Mr L some 500m away from
the house?
[128.]
It was only in
cross-examination that accused 3 denied that the faces of accused 1
and accused 2 had been masked. This was
never put to Mr or Mrs
L on his behalf and, in the absence of any other explanation, accused
3 must be assumed not to have given
this version to his attorney.
[129.]
In trying to create the
picture that he had distanced himself from whatever accused 1 and
accused 2 were doing inside the house,
and to Mr L, accused 3
contradicted himself about whether or not he had fallen asleep while
according to him sitting somewhere
near a store during that time.
[130.]
How would accused 1 and
accused 2 have known about the sale of the goats, and even about the
tombstone business? We know that
accused 3 definitely knew
about the sale of the goats, and because he worked on the farm he
would possibly also have been aware
of the tombstone manufacturing.
In my view accused 3 in all likelihood informed the other two accused
of the possibility
of money from one or both of these sources, and to
avoid being recognised by Mr L then left it to the other two accused
to raise
this with Mr L, while he remained outside the house.
The fact that accused 3 grabbed Mrs L from behind and that he
remained
behind her when forcing her from the vehicle to the kitchen,
is in my view also a strong indication that accused 3 was worried
about being recognised.
[131.]
Under pressure in
cross-examination, accused 3 at one stage admitted to having been
part of a “
gang
”
that went to the farm
to rob, only to once again deny it later.
[132.]
He also at one stage in
cross-examination said that he was guilty of everything that had been
said in Court and that he wanted to
change his plea of not guilty to
the robbery count to one of guilty, but then only in respect of the
complainant Mrs L. He
then admitted that he was in fact the
person who had overpowered Mrs L, who had held a knife to her throat
and who had taken from
her according to him approximately R400.00 and
her cell phone. This plea was not accepted by the prosecution.
This
change of heart came after accused 3 had earlier in his evidence
said that, when Mrs L arrived, he greeted her and talked to her.
This was of course completely irreconcilable with Mrs L’s
evidence that she was attacked from behind, without warning, and
this
previous version of accused 3 had in any event never been put to Ms L
in cross-examination.
[133.]
Mr Buthelezi, attorney
for accused 3, argued that the actions of accused 3 before the
arrival of Mrs L should be viewed as distinct
from his actions
thereafter, and towards Mrs L. He argued that it should be
found that the fact that accused 3 was outside
the house before Mrs L
arrived, is an indication that he had not been part of the attack on
Mr L and that he had in fact distanced
himself from that. On Mr
Buthelezi’s argument accused 3 would therefore be guilty of
robbing Mrs L of her money, cell phone
and vehicle, but not guilty of
robbing Mr L of the items taken from the house. Mr Buthelezi
argued that, as far as Mr L is
concerned, accused 3 can only be
convicted as an accessory after the fact of that part of the events,
and on the basis that he
had assisted accused 1 and 2 to escape by
driving the vehicle with them as passengers in it.
[134.]
There is absolutely no
merit in this argument. A person who is standing outside
because he wants nothing to do with the violence
inside the house,
would not himself then inflict violence on an unsuspecting and
defenceless woman, and would not take that woman
to the two
perpetrators of the behaviour that he finds so unacceptable and is
distancing himself from.
[135.]
Accused 3’s
version that accused 1 and accused 2 had been on a frolic of their
own when they attacked Mr L and robbed him
and Mrs L, is rejected as
false. His actions that night, even on his own version,
contradict this.
[136.]
If that had been the
position, accused 3 had numerous opportunities of, at the very least,
leaving the farm and distancing himself
from the actions of accused 1
and accused 2. He clearly did not, and he could not explain
this in cross-examination.
[137.]
Instead accused 3 ended
up, on his own version, assisting by driving Mrs L’s vehicle to
the ATM to enable accused 2 to withdraw
money from Mrs L’s bank
accounts, and by later loading stolen property into the vehicle, and
also by in the end driving the
stolen vehicle away from the farm.
[138.]
I have no reason to
doubt the evidence of Capt. Visagie that, when he asked accused 3 to
explain whose vehicle it was that he was
driving when they were
pulled over, he initially lied and said that it was his uncle’s
vehicle. Why, if he had innocently
been implicated by accused 1
and accused 2, did he not immediately tell Capt. Visagie that?
[139.]
The version of accused
3 does also not explain the presence of several of the stolen items
in his possession, which included property
that he had not taken from
Mrs L outside the house, like the empty magazine, as well as more
money than he had taken from her.
That the cash found in his
possession was his own, was never put to Capt. Visagie and appears to
be an afterthought. In any
event, on his later admissions as
regards the events outside the house at least part of the money in
his possession would have
had to have been the money of Mrs L.
[140.]
The version of accused
3 that he had ended up being in possession of a firearm after he had
taken it away from accused 1 in the
kitchen because he was worried
that somebody could get hurt, is also highly improbable. On his
own evidence that firearm
was empty. Why then would he have
thought that it posed a risk in the hands of accused 1? He
never explained what he
meant by saying that accused 1 was playing
around with the firearm.
[141.]
I am satisfied, beyond
reasonable doubt, that accused 3 was an active and participating
member of the group of attackers and robbers.
There is no doubt
at all, in my view and as already said, that the three accused had
acted with the common purpose to commit the
robbery. They went
there to take money and other possessions and when violence was
applied not one of them distanced himself
from those actions.
To the contrary, they acted in concert in overpowering Mr L, and in
what was done inside the house and
when Mrs L arrived, they worked
together, in that accused 3 overpowered her and took her to his two
co-robbers, who promptly tied
her to a chair and made the same
demands to her as to Mr L. In fact, there are, as already said,
strong indications that
they went there with the premeditated plan to
commit the robbery. The clearly false explanations for them
going there, over
a distance of about 20 km and at that time of day,
is an indication of this, as is the convenient presence of stockings
with which
to mask their faces.
[142.]
There is no merit In Mr
Buthelezi’s argument that the fact that the accused had arrived
at the farm unarmed militated against
them having gone there with the
intention to rob. On the evidence of accused 3 himself he had known
of the presence and availability
of objects like the iron rod and the
wooden pole, which were eventually used as weapons, because they had
been lying there when
he left the farm after work shortly before
then.
[143.]
At the very least,
though, I am satisfied that the common intention to rob already
existed when Mr L went outside to find out why
the dogs were barking.
Aggravating
circumstances:
[144.]
It is clear on the
evidence that the robbery was committed in aggravating
circumstances. Mr L was subjected by blows with
an iron rod and
a wooden pole. In the process he sustained open wounds to his
head and a fractured forearm. His little
finger was almost
severed with a sharp object, quite clearly to make him disclose where
the accused would find money. His
undisputed evidence was that
he is still suffering the consequences of his injuries. He
cannot close the hand of the fractured
arm properly and he has spells
of headaches and even unconsciousness. There is no doubt that
these injuries constitute “
grievous
bodily harm
”
for
purposes of the definition of aggravating circumstances in section 1
of the
Criminal
Procedure Act
.
[145.]
A knife was held to the
throat of Mrs L. There is no exact description of the knife,
but its blade caused a cut to Ms L’s
finger when she held on to
it out of fear that her throat was going to be cut with it.
Even if it could be argued that it
has not been proven to have been a
“
dangerous
weapon
”
for
purposes of the definition of aggravating circumstances, which I find
unnecessary to decide, holding it against the throat of
Ms L was
clearly understood by her as “
a
threat to inflict grievous bodily harm
”
.
[146.]
The knife that was
wielded by accused 1 was clearly a “
dangerous
weapon
”
,
when regard is had to photos 135 and 136 of Exhibit A, which depict
the knife that accused 1 had.
[147.]
I will assume, in
favour of the accused, that the stab wound to Mrs L’s leg was
not inflicted as part of the robbery, but
rather as part of allowing
accused 1 to get his hand inside the pants of Mrs L, and to touch her
private parts.
[148.]
As regards the
allegation in count 1 of firearms having been wielded, it is common
cause that during the commission of the offence
accused 1 had in his
possession what was described by,
inter
alia
,
Mr L as a firearm and that he pulled its trigger at least once.
There is also the evidence of Mr L that a firearm was held
to his
head and that accused 1 wanted to know where he could find
ammunition. This was not disputed. The evidence of
Mrs L
that it was her husband’s .22 calibre revolver that accused 1
had in his possession, was also not disputed.
[149.]
This firearm was not
subjected to ballistic examination and there was accordingly no
expert evidence that it actually was a functioning
firearm, as
envisaged in the definition of aggravating circumstances in the
Criminal
Procedure Act
.
In my view, and on an objective approach (Compare
R
v Jacobs
1961
(1) SA 475
(A)), the fact that accused 1 pulled its trigger and
enquired about ammunition for it excludes the reasonable possibility
that
it could have been a toy (Compare
S
v Anthony
2002
(2) SACR 453
(C)). Whether or not it was in the circumstances
necessary for the prosecution, for a finding of aggravating
circumstances
on the basis of the actions of accused 1 with it, to
prove that it was in working order, is not necessary to decide,
because the
actions of accused 1 with it in any event objectively
constituted “
a
threat to inflict grievous bodily harm
”
(Compare
S
v Mbele
1963
(1) SA 257
(N)).
[150.]
The finding of
aggravating circumstances means that the robbery was one as envisaged
in section 51(2), read with Part II of Schedule
2, of the
Criminal
Law Amendment Act
,
105 of 1997. The robbery in any event also
involved
“
the
taking of a motor vehicle
”
,
as envisaged in paragraph (b) of the description of robbery in Part
II of Schedule 2.
COUNT
3: RAPE
[151.]
Mr Makhaga responsibly
and in the best traditions of his profession conceded that, because
it has not been proved that the stab
wound to the thigh of Mrs L was
inflicted as part of the rape, the rape did not constitute one as
intended in section 51(1), read
with Part I of Schedule 2 of the
Criminal
Law Amendment Act
and
it would accordingly for purposes of that Act then be a rape as
envisaged in section 51(2), read with Part III of Schedule 2
to the
Act.
COUNT
4: POSSESSION OF AMMUNITION
[152.]
Exhibit “2”
consisted of six objects. Capt. Visagie testified that he found
the six objects in two pockets of
the trousers of accused 2, and he
described them as rounds of different calibres.
[153.]
Count 4, which is only
against accused 2 and is a charge of the unlawful possession of
ammunition, is based on accused 2’s
alleged possession of these
objects.
[154.]
It was put to Capt.
Visagie, on behalf of accused 2, that he had not found these objects
in the possession of accused 2. Capt.
Visagie insisted that he
had. Accused 2, as already mentioned, never took the stand,
which leaves the Court with only the
evidence of Capt. Visagie in
this regard. Capt. Visagie was a credible witness and he made a
good impression as a witness.
No reason has been advanced for
why the evidence of Capt. Visagie that the objects were found in the
possession of accused 2, should
be disbelieved. It was not, for
example, suggested that they had actually been found in the
possession of one of the other
accused.
[155.]
The question is,
however, whether it has been proved that the objects were
“
ammunition
”
as envisaged in section
90 of the
Firearms
Control Act
,
which criminalises the possession of ammunition in circumstances
where the possessor is not the holder of a licence for a firearm
capable of discharging such ammunition, does not have a permit or
licence entitling him or her to possess it and is not otherwise
authorised to possess such ammunition.
[156.]
The word “
ammunition
”
is defined in section 1
of the Act as meaning “
a
primer or complete cartridge
”
.
The word “
primer
”
is not defined in
section 1. The word “
cartridge
”
is defined as meaning
“
a
complete object consisting of a cartridge case, primer, propellant
and bullet
”
.
The word “
bullet
”
is also not defined.
It is assumed, for present purposes, that the Legislature used the
word to refer to the point or projectile.
[157.]
Mr L initially
described the objects as .308 calibre bullets that had come into his
possession when he was a member of the Commando,
some 20 years ago.
[158.]
Close inspection
revealed, however, that the six objects are not similar. One
has no bullet or point and was then described
by Mr L as a so-called
blank. One is darker in colour and appeared to differ from the
others. One is shorter or smaller
than the others. The
remaining three appears to be the same size, but two of them have
sharp points and the other a rounded
point. The six objects can
be seen in,
inter
alia
,
photo 109 of exhibit “A”.
[159.]
When confronted with
this in cross-examination, Mr L conceded that he did not recognize
the darker or smaller ones. He said
that the remaining four
objects were similar to the ones that had been in the safe, one being
a blank, two being sharp point ammunition
for an army issue .308
calibre R1 rifle and the remaining one, with the blunt lead point, a
.308 calibre “
hunting
bullet
”
.
[160.]
I think it can safely
be said that, with the exception of the object without a point or
projectile, in other words the blank, the
objects appear to be what
is in layman’s terms known as ammunition.
[161.]
It can also be said
that, with the exception of the blank, all of the objects appear to
consist of cartridge cases with bullets.
[162.]
What cannot be said
from looking at the objects, however, is whether they also consist of
primers and propellants, as required by
the definition of the word
“
cartridge
”
.
No evidence was presented in this regard and the objects were never
subjected to expert examination.
[163.]
It is tempting to say
that the army would not have issued Mr L with objects that were not
capable of being discharged by a firearm,
and that did not include
primers and propellants, and that the objects therefore also have to
contain or include primers and propellant.
The same reasoning
could be applied to the so-called hunting bullet.
[164.]
Mr L did not, however,
testify that he had ever actually fired shots with other ammunition
that had at the same time come into his
possession as a member of the
Commando, or in fact that he ever had a .308 calibre rifle with which
he had fired shots with that
ammunition, or with ammunition similar
to the so-called hunting bullet.
[165.]
In
S
v Filani
2012
(1) SACR 508
(B) the Court referred to the technical nature of the
definitions in the
Firearms
Control Act
and
the general need for expert evidence in this regard.
[166.]
In
S
v Fumo
[2005]
JOL 13422
(T) the accused had pleaded guilty and admitted illegal
possession of ammunition. On review it was held, however, that
the
accused could not, as a layman, have had “
specific
knowledge
”
of
whether the objects in his possession actually fell within the
statutory definition of the word “
ammunition
”
.
The conviction was set aside on this basis.
[167.]
In the present matter
the police did, as already mentioned, send a .22 rifle and a .38
special revolver for expert examination,
with a view to proving that
they are indeed “
firearms
”
within the definition
of that word in the Act. For some reason they chose not to
follow the same route with these objects
found in the possession of
accused 2.
[168.]
The facts of the
present matter are distinguishable from those in
S
v Sehoole
2015
(2) SACR 196
(SCA) and
S
v Jordaan and Others
2018
(1) SACR 522
(WCC). The objects in this matter were not found
in the magazine of a firearm. In fact, it appears as if Mr L
does
not even possess a .308 calibre rifle. There is also no
evidence that these objects were part of a bigger batch of similar
objects and of which some had earlier been discharged from a firearm
and had therefore appeared to have been ammunition.
[169.]
In the circumstances
accused 2 must be given the benefit of the doubt about whether any of
the objects found in his possession was
in fact ammunition as
envisaged and defined in the
Firearms
Control Act
.
COUNT
5: POSSESSION OF FIREARM
[170.]
This leaves count 5 to
be considered. That is the charge that accused 3 was found to
be in possession of a firearm, more specifically
and as described in
the indictment a “
.38
Revolver pistol with serial number W189104
”
,
while he held no licence, permit or authorisation in terms of the Act
to possess that firearm.
[171.]
The defence of accused
3 is that the weapon found in his possession, by Capt. Visagie,
was not the .38 special revolver referred
to in count 5, and that was
subsequently subjected to forensic or ballistic examination.
According to him it was the weapon
that he had taken from accused 1,
but which was not the .38 special revolver. As already
mentioned, it was the undisputed
evidence of Mrs L that the firearm
that accused 1 had in his possession was in fact the .22 calibre
revolver.
[172.]
On the other hand there
is the evidence that accused 3 told Capt Visagie, when he was asked
where he got the revolver that was found
in his possession, that he
got it from accused 2, and not therefore from accused 1.
[173.]
Also of importance is
the fact that accused 3 testified that the firearm that was found in
his possession was indeed placed on the
bonnet of the police vehicle,
and it is undisputed that the .38 special calibre revolver was indeed
photographed lying on top of
the bonnet of the police vehicle.
However, in view of what follows the reasonable possibility that the
.22 calibre revolver
had also at some stage been lying on the bonnet,
cannot be excluded.
[174.]
Capt. Visagie’s
evidence was that it was indeed the .38 special calibre revolver that
he had found in the possession of accused
3 when the vehicle of Mrs L
was stopped, and he said that Const. Louw, who was with him at the
time, would be able to verify this.
Mr Makhaga later placed on
record that, in a consultation with Const. Louw, the latter claimed
not to have an independent recollection
of this.
[175.]
Mr Mongale, who had at
the time been a police official and who had been responsible for the
sealing and packaging of the .38 special
calibre revolver, was unsure
who he had received it from, and his evidence therefore also lends no
substantiation to the evidence
of Capt. Visagie about the nature of
the firearm that he had found in the possession of accused 3.
[176.]
I have already made
clear my view of the credibility of accused 3, but his defence on
this count would nevertheless means that the
prosecution would have
had to exclude the reasonable possibility that what was found in his
possession was not the .38 special
revolver that is referred to in
count 5 and which, as already mentioned, was indeed subjected to
ballistic examination and found
to be a firearm within the definition
of the word “
firearm
”
in the Act.
[177.]
What is of some concern
in this regard is the fact that the .22 calibre revolver was also
stolen during the incident, but has not
been accounted for.
There is no evidence that it was or was not among the stolen property
found inside the vehicle of Mrs
L. On the evidence presented by the
prosecution it was also not found in the possession of either accused
1 or accused 2, or of
Ms Januarie.
[178.]
In the absence of
evidence that the .22 revolver was discarded somewhere between the
farm and the scene where the vehicle was stopped,
that would leave
only accused 3 as a possible person who may have had the .22 revolver
with him at the time of their arrest.
[179.]
In the end there is
only the single and uncorroborated evidence of Capt. Visagie about
what exactly was found in the possession
of accused 3 a year earlier
and, when regard is had to the unaccounted for .22 revolver, the
reasonable possibility that it may
have been the one found in the
possession of accused 3, has not in my view been excluded.
[180.]
That everybody referred
to the .22 revolver as a firearm, is of no assistance to the
prosecution. There is no expert evidence
that the .22 revolver
was indeed, like the .38 special revolver, a firearm as defined in
the
Firearms
Control Act
.
In this regard I refer again to the cases I have mentioned regarding
the definitions in the Act, and the need for
expert evidence.
CONCLUSION
[181.]
In the light of all of
this the following findings are made:
181.1
On count 1 all three accused are convicted of robbery with
aggravating circumstances.
181.2
Accused 1 is convicted on both counts 2 and 3.
181.3
Accused 2 is acquitted on count 4.
181.4
Accused 3 is acquitted on count 5.
C
J OLIVIER
ACTING
DEPUTY JUDGE PRESIDENT
NORTHERN
CAPE DIVISION
For the
State:
ADV. R R MAKHAGA
(
Office
of the Director of Public Prosecutions
)
For the 1
st
Accused:
ADV. M M STEYTLER
(On
Judicare
instruction)
For the 2
nd
Accused:
ADV. K PRETORIUS
(On
Judicare
instruction)
For the 3
rd
Accused:
MR A BUTHELEZI
(On
Judicare
instruction)