About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2018
>>
[2018] ZANCHC 87
|
|
S v Dawson (KS4/18) [2018] ZANCHC 87 (9 November 2018)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH AFRICA
NORTHERN CAPE DIVISION, KIMBELEY
KS 4/18
Heard on:
23 - 26/04/2018;
08-12/10/2018; 05-08/11/2018
Delivered on: 09/11/2018
In the matter
between:
THE
STATE
v
HENDRICK
DAWSON
ACCUSED
JUDGMENT
MAMOSEBO
J
[1] The
accused, Mr Hendrik Dawson, faces one charge of murder read with s
51(1) of Act 105 of 1997 and
another of robbery with aggravating
circumstances as defined in s (1)(b) of the Criminal Procedure Act
[1]
(CPA). Before pleading to the charges the accused confirmed
that his then legal representative, Adv Steynberg, had explained
to
him the provisions of the Criminal Law Amendment Act
[2]
(the CLA Act). He was advised that in the event of a conviction, the
State intended to invoke the provisions of s 51(1) and 51(2)
of
the CLA Act which prescribes minimum sentences for certain specified
offences.
[2] The accused tendered a plea
of not guilty on both counts. In his plea explanation in respect of
the
murder
:
he admitted stabbing the
deceased on the day of the incident but pleaded self-defence. He
claims that he was attacked by the deceased
and Mr Willem Bruwer
(also referred to as ‘Willie’). In respect of the
robbery
:
he denies robbing the deceased
of his Isuzu bakkie and maintains that he was instructed by Mr Bruwer
to drive it to a certain vineyard.
He denies the intention to
permanently deprive the deceased of his Isuzu bakkie.
Formal
admissions by the accused
[3] The following admissions
were made by the accused in terms of s 220 of the CPA:
3.1
That the body of the deceased was found in the circumstances as
set out in the photo album
received as Exhibit “B”;
3.2
That the body of the deceased did not sustain any further injuries
from the time it was removed
from the scene of crime to when the post mortem was conducted;
3.3
The identity of the deceased is admitted as set out in the
indictment;
3.4
That the deceased picked him up in the morning to work on his
irrigation system at his house in Kakamas;
3.5
That the bakkie depicted on photos 34 – 41 is the property of
the
deceased;
3.6
That the brown jacket shown on photo 39 belongs to him (the
accused);
3.7
That he and the deceased drove in the bakkie to the scene of crime
where
the deceased’s body was
found;
3.8
That his shirt had bloodstains after he stabbed the deceased;
3.9
That he discarded the shirt in the black refuse bin at Katriena’s
house and the bin contained water;
and
3.10
That Mr Franscois Jordaan found the body of the deceased as noted
in his statement marked “A11”,
the contents of which are admitted.
The
State’s version
[4] Mr Ricardo Louw (Ricardo) is
an unsophisticated orphan who attended school up to Grade 7 (Standard
5).
On the morning of the incident, 08 November 2017, he arrived at
House 2234 Langverwag at Kakamas, residential premises of the accused
and his sister Katriena, around 07:04 in the morning, to baby-sit
Katriena’s child so that she could report for work. He
is not
related to the accused and Katriena.
[5] Ricardo testified that he
and the accused sat outside the accused’s house. The accused
was consuming
alcohol and smoking. He was asked by the accused to
fetch the striped green and blue puma T-shirt depicted at page 48 of
the photo-album
from inside the house. The accused later entered the
house to fetch his greyish/brownish woollen jacket or coat (later
identified
at photo 39 and admitted by the accused in his formal
admissions as his jacket) and returned outside. As the accused
emerged from
Katriena’s house, demonstrably throwing his
T-shirt to hang outside his pants, his employer, Mr Jan Hough, (the
deceased)
to whom Ricardo referred to as “OB”, arrived at
the accused’s premises. It was then around 07:30. He did not
observe anything wrong with the deceased neither did he observe any
tensions between them. The accused and the deceased left together
in
the deceased’s Isuzu bakkie. They sat next to each other in the
cabin of the bakkie as they drove off.
[6] Later during the day, as
explained by Ricardo, a farmer by the name of Mr Riyaan Bruwer and
the deceased’s
wife arrived at Katriena’s place looking
for the accused. Ricardo told them that the accused left with
OB in the morning
and has not returned yet. They left. Thereafter,
Captain Steenkamp also arrived and asked him about the whereabouts of
the accused.
After the police had left the accused arrived, coming
through a ditch. The accused ate. He then asked Ricardo to fetch
water for
him in a white basin. The accused showed Ricardo his
blood-stained palms and washed off the blood and his feet. He asked
Ricardo
to dispose of the water. The accused apologised but did not
elaborate on the apology. The accused then threw his striped T-shirt,
which was blood-stained on the neck and chest area, in a black refuse
bin that was placed in front of the door depicted on photo
45 and
wore a white T-shirt. The accused again left the house taking the
direction of the trench to Collen’s house.
[7] Shortly after the accused’s
return two police vans drove past the house, but when the third
van drove past the accused asked Gogi to stop them and handed himself
over to them.
[8] Ricardo further testified
that in the breadbin of Katriena’s home a knife with a black
plastic
handle was always conveniently kept. After the accused left
he, Ricardo, went to the breadbin to slice bread for Katriena’s
child but the knife was missing. He did not see the accused removing
the knife from the bread bin. He had however, seen this knife
in the
bin earlier that morning.
[9] Mr Willem
Raats also known as Riyaan testified that the deceased fetched him
from his home to make arrangements
for some casual work that he
needed done at his place. The deceased was already in the company of
the accused in the bakkie. The
deceased gave him a lift to his work.
Riyaan remained on the back of the bakkie. At a point where he
alighted, to continue walking
to work, the accused directed to the
deceased which route
to
take. Riyaan arrived at his workplace and stood outside waiting for
the gate to be opened. He later that morning saw the accused,
who was
alone, driving the deceased’s bakkie past his workplace. He
learned the following day of the passing of the deceased.
[10] Mr Stephanus Adriaan
Bruwer (Bruwer Snr), is Willem Bruwer’s father and a farmer at
the vineyards depicted
Exh C. The accused’s sister, Katriena,
works for him. Earlier that morning, around 07:00 Bruwer Snr fetched
Katriena, Neville
and Sophia from their homes to his vineyards where
they work. Just as he turned into his vineyard he noticed the
deceased’s
bakkie approaching from the front. He stopped and
the deceased’s bakkie stopped next to his. It was driven by the
accused.
Bruwer Snr asked the accused what he was doing with the
deceased’s bakkie. The accused’s response was that he
needed
cigarettes from his sister. He then sped off. He described the
accused as “verward” (confused) or “beangs”
(anxious, uneasy, and panicky).
[3]
[11] Mr Bruwer Snr immediately telephoned
his son, Willie, asked him to stop the accused in order to establish
what
was happening. After a lapse of about 5 to 8 minutes he observed
the deceased’s bakkie being followed by Willie towards his
vineyard. The accused stopped the bakkie about 30 meters in front of
his bakkie and went towards the vineyard to Katriena and the
others.
Bruwer Snr removed the keys from the ignition of the deceased’s
bakkie and kept them. He noticed bloodstains on the
accused’s
t-shirt. He asked him what the problem was. Without answering, the
accused turned and entered the vineyards. He
realised that there was
a problem. Bruwer Snr asked Neville to pursue the accused to see
where he was going. The accused took the
direction of the “sout
sloop”. Captain Steenkamp arrived. Mr Bruwer Snr made a report
to him and handed him the keys
to the Isuzu bakkie.
[12] Mr Bruwer Snr then went to the
deceased’s home. He knocked and was met with no response. He
walked around
the house and did not notice any signs of a break-in.
He called his son, Willie, who phoned the deceased’s wife. She
emerged
from inside the house. She accompanied Bruwer Snr to the
accused’s place where they received confirmation from Ricardo
that
the deceased had fetched the accused that morning.
[13] Mr Neville Jansen is an employee of Mr
Bruwer Snr. He was fetched from home together with Katriena and
Sophie.
He confirmed seeing the Isuzu bakkie for the first time
approaching their bakkie from the opposite direction driven by the
accused.
The two bakkies stopped. The accused said the deceased had
sent him to look for ‘rook goed’ (cigarettes). After they
told the accused they did not have cigarettes he drove off. They were
allocated work in the vineyards. The accused returned before
they
started work and Willem was driving behind him. The accused alighted
and joined them in the vineyard. The accused then walked
deeper into
the vineyard and at that stage Mr Bruwer Snr asked him to follow the
accused to see where he was headed. The accused
fled.
[14] Ms Katriena Dawson is the accused’s
elder sister who only attended school up to Standard 2. They reside
in
the same premises although accused stays in his own backroom. She
confirmed that the accused worked for the deceased. She did not
see
him leave or being fetched by the deceased but saw the deceased’s
bakkie outside her home that morning. She, Makarina,
Neville and
Yvette were later fetched by Mr Riyaan Bruwer around 06:45. She
corroborates the version by the other witnesses in
all materials
respects. Much was made by the defence counsel about the manner at
which the three bakkies were parked in relation
to each other.
Whether the deceased’s bakkie was in front of Bruwer Snr’s
bakkie with Mr Willem Bruwer’s bakkie
behind the deceased’s.
This was not a material inconsistency. She saw blood stains around
the shoulders on the T-shirt worn
by her brother.
[15] When Ms Dawson arrived at her home
after work she found “Blantjies”, (Mr Ricardo Louw). Ms
Dawson positively
identified and accurately described the knife
seized at the crime scene as being about 32 cm’s long and the
blade about 2cm’s
wide. She claimed it as her own and explained
that she used it for general household purposes. She says its plastic
handle broke
that is why the knife only has steel blades. She
identified it as Exhibit 1 in Court. The knife was bloodstained.
[16] Mr Niklaas Dawson is the elder brother
of the accused. He works at Mr Jordaan’s vineyards. On the day
of
the incident he was at work on a tractor since 06:00 in the
morning spraying grapes. He was accompanied by his nephew, Katriena
Dawson’s son. They saw the accused approaching on foot in a
hurry with his upper body bare and holding a green t-shirt in
his
hand. The accused informed them that he has killed a white man. He
had blood on his right arm. Niklaas enquired from the accused
why he
did not report the killing to the police. The accused informed him
that the white man wanted him (the accused) to steal
a wheel-barrow
on his behalf, which he did not do. He immediately ridiculed
and disbelieved the version of the wheelbarrow.
[17] Willie is Mr Bruwer Snr’s son. He
confirmed receiving a telephone call from his father with a request
to
look out for the deceased’s bakkie approaching his
direction. He then saw the bakkie approaching from the opposite
direction
and flickered lights to draw the attention of the driver.
After the bakkie drove past him he made a U-turn and followed it. He
also telephoned the police and furnished the explanation he had
received from his father. The driver in the deceased’s vehicle
pulled over from the road. He noticed that it was the accused and
enquired from him what he was doing with the deceased’s
vehicle. He responded that he was on his way to Gariep Corporation.
He suggested to the accused that they should drive to the police
station. However the accused drove towards his father’s
vineyards and parked the Isuzu bakkie behind his fathers’.
The
accused alighted and went into the vineyards. His father removed the
keys from the Isuzu ignition. He called Captain Steenkamp
who arrived
shortly.
[18] Mr Willem Bruwer was recalled by the
State on 05 November 2018 to testify on the GPS information that
recorded
the movement of the vehicle he drove on the day of the
incident, 08 November 2017. He confirmed being the driver of the
Toyota
Hilux with registration letters and numbers [….]. He
testified and clarified the starting and end time for each trip he
took on 08 November 2017 from 02:44 in the morning until 12:56 in the
afternoon. The duration of all the trips is reflected on the
GPS as
well as the distances travelled per trip. He also testified on his
cellphone records for 08 November 2017 between 06:09:03
and 12:01:00
midday. He was intensely cross-examined by the defence counsel but
his version of events remained consistent. Of
importance is
that the GPS information and the cellphone records substantiated his
earlier testimony testified to on 25 April 2018
that he was never at
point B, being the place where the deceased was found dead, as
alleged by the accused. Exhibits “I”
(Key to the
summary of the movement of motor vehicle [….]), “J”
(the GPS information of the vehicles without
the computer screen),
“K” (the GPS information of the vehicle with the computer
screen), “L” (the statement
explaining the cellphone
usage by Mr Willem Bruwer on 08 November 2017) and “M”
(the cellphone records of the phone
[….] for the period 07
November 2017 to 08 November 2017) were handed in through Mr Bruwer
during his testimony.
[19] The defence put the following to Willem
during cross-examination on 25 April 2018: that he was in the company
of
the deceased at point B and he strangled or choked the accused
until the accused became unconscious; the deceased then trampled
on
the accused’s neck; the accused stood up and Willem hit him;
that Willem and the deceased took a rope and tied it around
the
accused’s legs and threw it around his neck while the one end
of the rope was tied to the towbar of the deceased’s
bakkie and
the other end was tied to Willem’s towbar; the accused was
informed by Willem and the deceased that he was going
to be ripped
apart; that at that stage Willem hit him with a steel dropper on his
back while the rope was still around his legs;
the accused then
produced a knife and cut off the rope around his legs; the accused
ran away and the deceased pursued him with
his bakkie; that the
accused fell; the accused stood up and stabbed the deceased twice;
that the deceased wriggled
around on the ground; that Willem
instructed him to take the deceased’s bakkie and drive it to
the vineyards. Willem denied
everything and disputed particularly
that he was at point B.
[20] Ms Karen Minnie is employed as an
administration clerk at Duiwelsnek Farm and is a colleague to Mr
Willie Bruwer.
She was responsible for downloading the information
from the little logbook memory stick to the computer. She generated
exhibits
“J” and “K”. According to her the
information has not been tempered with manually and is a true
reflection
of what was recorded by the GPS system.
[21] Mr Andre Swanepoel is the owner of a
business known as Mbeleni Data Solutions who created the Global
Positioning
Satellite (GPS) System called Little Logbook. He
displayed to the Court the box containing that memory stick. The
product was created
in 2009 and has undergone ISO 9001 tests and has
been accredited. The device has been designed to alleviate the
pressure from both
individuals and businesses of keeping a manual
logbook for purposes of Tax Returns or monitoring the movement of the
vehicles.
The device could be charged when plugged into a
cigarette lighter or in a USB port in a motor vehicle. The software
of the
device captures the speed at which the vehicle is travelling,
the altitude of the vehicle as well as the routes travelled in order
to generate the required reports. Mr Swanepoel was able to
demonstrate on the projector screen the movement of the Toyota Hilux
that was driven by Mr Willem Bruwer on 08 November 2017 from 02:10 in
the morning to 12:04 midday. In response to a question by
Mr
Pretorius, Counsel for the accused, whether Mr Willem Bruwer’s
vehicle moved from point B to C as depicted on the Google
Map marked
“H”, he answered assertively that the motor vehicle was
never at point B and it has not travelled from point
B to point C. Mr
Swanepoel was able to defend the credibility and reliability of the
device.
[22] Captain Joseph Wildschut is a member of
the Local Criminal Record Centre in Kakamas. He compiled the photo
album
and key to the photos. The album comprises three scenes, the
first scene: where the deceased’s vehicle was found, the second
scene: where the body of the deceased was found and the third scene:
house number [….], the accused’s residence. He
also took photos depicting the deceased’s injuries during the
post mortem. Among the photos was the blade of a knife
next to
the deceased.
[23] Capt Wildschut also produced a google
map depicting three points: point A indicates house 2234; point B:
the place
where the deceased was found; and point C: where the motor
vehicle with registration letters and numbers [….] was found.
He also explained that there is a hill separating the residential
area and where the deceased was found.
A person standing at point B is obstructed by the hill
to see Kakamas. The photos of the accused (photos 83 to 87) were also
taken
around 13:39. When the captain enquired whether he sustained
any injuries the accused pointed to the injury on the elbow only
without
making any explanation as to how he sustained it. Captain
Wildschut explained that had the accused informed him of any further
injuries on the head and shoulder, he would have taken photos and
added them to the album.
[24] Captain Steenkamp has 33 years of the
service in the South African Police Services and is attached to the
Visible
Policing Unit in Kakamas. He received a telephone call from
Mr Willie Bruwer on 08 November 2017 around 07:47 informing him that
he was assisting his father with his request to stop the accused who
was driving Mr Jan Hough’s bakkie. He was later called
to Mr
Bruwer Snr’s vineyards where the deceased’s bakkie was
recovered. He noticed a blood stain on the right side
driver’s
door of the deceased’s bakkie. He also communicated with one
farmer, Mr Francois Jordaan, who is also the
employer of Mr Niklaas
Dawson, the accused’s elder brother. He confirmed finding Mr
Ricardo Louw at the accused’s residence
the morning of the
incident. He was also at the crime scene where the deceased’s
body was found and confirmed observing single
vehicle tracks. He also
took the photos in Exhibits “E”, “F”, and “G”
using his cellphone.
According to him the accused’s injuries
were not fresh on that day. The accused did not say anything to him
about Willie
Bruwer but instead mentioned being involved in a fight
with another person who hit him with a panga on his head. He also
took the
same photos as those depicted in the photo album, namely,
photos “83”, “84”, “85”, and
“86”.
The crime scene where the deceased was found
was not disturbed during his presence. He and Captain Wildschut were
the first police
officers to arrive on the scene where the body of
the deceased was found. They found Mr Jordaan who discovered the body
at the
scene.
[25] Dr Adin Don Surtie conducted the post
mortem on the body of the deceased a day after the deceased’s
death
on 09 November 2017. He attained the following qualifications
from Stellenbosch University: MBCHB in 2001; Diploma in Occupational
Medicine in 2005; Masters in Business Administration (MBA) in 2013.
He has been in Forensic Pathology since 2007 and conducts between
250
and 350 post mortems per month.
[26] The post-mortem report records that the
chief findings were the following:
(a)
85mm incision
(consisting of lower irregular edge and upper edge of +- 30mm lateral
segment followed medially by +- 20mm, 20mm,
19mm and 25mm segments)
left anterior chest 85mm from midline and 180mm below sternal notch.
Essentially medial and slightly inferior
tract entering chest with
incision from 4
th
intercostal space to 5
th
intercostal space with incision of 5
th
rib. Tract continuing into anterior right ventricle of heart with
vertical incision consisting of 20mm inferior portion and 30mm
superior portion. Blood in pericardial sac. 1500millilitres blood
right chest and 500millilitres blood left chest. Partially collapsed
right lung.
(b)
Blue/purple bruised and
swollen right eye
(c)
20x 6mm bruise right
lower lip
(d)
21mm scratch right
anterior chest
(e)
35mm scratch left upper
abdomen
(f)
7mm scratch right upper
abdomen
(g)
Small abrasions and
bruising right anterior knee
(h)
Small abrasions left
anterior knee and lower leg
(i)
Abrasions left lateral
lower leg
(j)
Small abrasions in
70x40mm area lateral to left eye
(k)
30x20mm area of
abrasions lateral left shoulder
(l)
15x5mm abrasion lateral
right wrist
(m)
Multiple abrasions and
bruising around left posterior elbow
(n)
45x15mm abrasion and
bruise right lower back
(o)
65x22mm abrasion
posterior lateral right neck
(p)
75x40mm abrasion and
bruise with central 10x4mm laceration lateral to right eye
(q)
18x18mm lacerated area
with abrasion rim right lateral eyebrow
(r)
45x20mm abrasion with
central 10x5mm lacerated area anterior to right ear
(s)
50x30mm lacerated area
with abrasion rim right lateral anterior scalp with underlying
20x10mm minimally displaced depressed skull
fracture (with
hairline/thin fractures)
(t)
30mm incision right
lateral posterior neck with inferior tract into muscle
(u)
15x10mm abrasion
posterior to injury
(v)
95mm superficial skin
incision with abrasion rim and surrounding bruising left medial upper
arm
(w)
Multiple areas of skin
slippage/sun damage on body including area of skin
slippage/desloughing with post mortal/peri mortal abrasions/sun
damage left posterior lower arm and posterior right upper arm and
elbow
(x)
70x55mm suspected post
mortal lesion right upper back.
[27] Dr Surtie concluded that the cause of
death was “consistent with stab chest (injury a). The following
additional
observations were included by the doctor in the
report: “Injuries consistent with of recent nature before
death unless
otherwise indicated. If present:
-Incisions are indicative of sharp
object/s trauma.
-Bruises, contusions, abrasions and
lacerations are indicative of blunt force/object/s trauma.
-Scab formation on an abrasion or
injury indicates healing.”
[28] The doctor explained that the incised
wounds on the body of the deceased were caused by a sharp object
while the
abrasions and lacerations were caused by blunt force
trauma. Further clarity was sought from the doctor pertaining to the
deceased’s
injuries particularly distinguishing the injuries
attributable to a person’s fall. The injuries on the deceased’s
face
according to the doctor were caused by multiple blunt forces.
The same can be said for the injuries on the stomach and legs.
[29] The doctor’s opinion in respect
of the injury on the accused’s elbow as depicted on photos 84
and 85
were that they were abrasions that could have been caused by
blunt force but could also have been caused by falling. The injury
on
the elbow was fresh. In as far as the injuries on the back of the
head and on the shoulder blade taken by cell phone on the
day of the
incident at around 11:46 (E, F and G) the doctor expressed this
opinion: The injuries at the shoulder blade to the lower
back of the
head seemed like two healing wounds. The other wound shows a scab
formation which created the impression that the wounds
may be older
than that day of the incident. The injuries on the back were
described by the doctor as abrasions that were healing
with a central
scab formation. The outer edges of the scab had fallen or have been
removed. The injuries could have been
sustained several days
before the photographs were taken.
[30] In cross-examination Mr Steynberg,
counsel appearing for the accused, raised with the doctor the issue
of lividity
which tends to make injuries seem worse than they really
are to which the doctor explained that they do not seem worse but are
more visible. The doctor was asked whether the injuries on the back
and head of the accused may have been caused by falling on his
back
to which the doctor answered in the affirmative for the head injury
and in the negative for the back injury.
[31] The doctor further opined that even if
the injuries on the deceased may have been caused by the stabbing and
wriggling
around, that does not explain those sustained on the right
side of the face, p; q, r and s on the report. A reasonable amount of
force was used to cause those injuries. The doctor excluded the
injury on the accused’s back to have been caused by the steel
dropper. He also excluded the alleged rolling of the deceased
on the ground as the possible cause for the injuries on his
swollen
right eye, upper and lower lips, left eye, neck injuries and the 15 x
10 mm abrasion (u).
[32] Mr Barnard, State Counsel, handed up
the statement of Mr Francois Jordaan obtained on 09 November 2017 by
agreement
as Exh “N”. He discovered the body of the
deceased. The accused admitted the contents of the statement in his
formal
admissions marked Exh “D”.
[33] The last witness to testify for the
State was Captain Sarel van Kradenburg. He is the investigating
officer in
the case attached to the South African Police Services for
33 years and has been a detective for the past 18 years. He was not
cross-examined and therefore his entire evidence is uncontested.
Of importance in his testimony were the following: In
pursuance
of the investigation on the same day of the incident he was
accompanied by Capt Wildschut to the accused’s place
of
residence where they found Ricardo Louw. He was looking for the green
striped T-shirt depicted on photo 48 which was worn earlier
by the
accused and was not worn by him at the time of the arrest. The
T-shirt was found in a water-filled black plastic refuse
bin and was
seized by Capt Wildschut.
[34] Captain van Kradenburg obtained the
warning statement from the accused and recorded the following when
ascertaining
injuries observed on the accused” as recorded at
para 7 of Exh “P”:
“
Gedurende
die onderhoud, het ek die verdagte gevra of hy enige beserings het.
Die verdagte het aangedui dat hy wel beserings het.
Ek het aan die
verdagte gevra om die beserings aan my te wys en ek het die volgende
waargeneem.
Twee sny wonde aan agterkop ….., skraap
wonde aan sy agter en wonde aan regter elmboog.
Ek
het die verdagte gevra hoe en waneer hy die beserings opgedoen het en
hy het as volg geantwoord.
Deur Piet aangeraand verlede week Vrydag aand –
wonde aan agter kop en op reg – wonde aan regter elmboog op
gedoen toe
hy in die sloep geval het.”
Captain van Kradenburg observed the
head injuries already had stitches and the back injuries were already
healing. The only injury
that looked fresh was the one on the elbow.
[35] Captain van Kradenburg also followed up
with Piet on the injuries and the nursing Sister, Sister Mile at
Kakamas
Hospital who furnished him with the trauma report dated 28
October 2017 concerning the accused’s injuries. A statement was
also obtained from Sister Mile on 17 May 2018 and confirmed what the
accused stated in the warning statement. Captain van Kradenburg
also
obtained a statement from Piet on 01 May 2018 and it also confirmed
what the accused said in his warning statement.
Capt van
Kradenburg confirmed that the accused never mentioned the name of Mr
Willie Bruwer during the investigation or at the
time of furnishing
the warning statement and not even during his formal bail application
stage. The only instance when the accused
made reference to Willie
Bruwer’s name was on 16 April 2018 when the Captain visited him
in prison to obtain his fingerprints
for court purposes. The
accused never revealed to Captain van Kradenburg how Mr Willie Bruwer
was involved on the day of
the incident and told him it will come out
in court.
[36] Captain van Kradenburg also requested
for and obtained the cellphone records on the usage of the deceased’s
cellphone, Exh “O”. The records confirmed that the last
call made by the deceased on that phone was on 07 November
2017. The
records also confirmed that calls were made from Mr Willie Bruwer’s
cellphone number to the deceased’s cellphone
on 08 November
2017 at the following times: 07:31; 07:36; 07:50; 07:59 with the last
call at 08:21. All the calls are described
in the records as “CF”.
The terms “CF” are explained in the document as follows:
Call Forward. (The cellphone
was not answered and the call went
through to voicemail, or the phone was switched off and the call went
directly to voicemail,
or the phone was diverted). The Capt.
testified that the deceased’s cellphone was recovered from the
pocket of his (deceased’s)
trousers together with a small
pocket book.
[37] The State closed its case. It made
available to the defence all the witnesses whose names appeared on
the witness
list but were not called.
The
accused’s version
[38] The accused pleaded not guilty. He
admitted having stabbed the deceased twice but in self-defence. He
also raised
a bare denial in respect of the robbery charge. At the
close of the State case the accused elected not to testify and not to
call
any defence witnesses. I will consider this part of the evidence
that was pleaded by the accused, put to the State witnesses during
cross-examination as what seemed to be his version.
[39] In raising the defence of self-defence
during his plea the accused claimed that because he did not steal the
wheelbarrow,
shovel and a pair of pliers of the deceased as
requested. Willem Bruwer choked him until he was unconscious and
fell. While he
was lying on the ground the deceased stepped on his
neck. Bruwer hit him on his mouth and thereafter the deceased and
Bruwer tied
him with a rope around his legs and neck while the
opposite ends of the rope were tied to the tow-bars of their
vehicles. He was
informed that he was going to be ripped apart.
Bruwer hit him with a steel dropper on his back. He managed to remove
the rope around
his neck but it was still tied around his legs. He
kept a knife in the pocket of his trousers which he used to cut off
the rope
and freed his legs. He fled but was chased by the deceased
with his bakkie causing him to fall by opening the door of his
bakkie.
Upon getting up he stabbed the deceased twice with his knife.
The deceased lost power and fell. Whilst he was on the ground he
wriggled and rolled trying to crawl. All the other injuries that the
deceased sustained were caused by his rolling on the ground.
He was
instructed by Willem Bruwer to drive from point B to his, (Willem
Bruwer’s) father’s vineyard.
Self-defence
[40] The question that
needs to be determined in examining the version of the accused is
whether the accused was under
attack which he had to ward off.
In
S v De
Oliveira
[4]
Smalberger JA
explained the principles of ‘putative’ private or
self-defence as follows:
“
The
test for private defence is objective – would a reasonable man
in the position of the accused have acted in the same way
(
S
v Ntuli
1975 (1) SA 429
(A) at 436(E).
In putative private defence it is not lawfulness that is in issue but
culpability (‘skuld’). If
an accused honestly believes
his life or property to be in danger, but objectively viewed they are
not, the defensive steps he
takes cannot constitute private defence.
If in those circumstances he kills someone his conduct is unlawful.
His erroneous belief
that his life or property was in danger may well
(depending upon the precise circumstances) exclude
dolus
in which case liability for the
person’s death based on intention will also be excluded; at
worst for him he can then
be convicted of culpable homicide. On
appeal the unlawfulness of the appellant’s conduct was not in
issue. Accordingly the
only issue was whether the State had proved
beyond all reasonable doubt that the appellant subjectively had the
necessary intent
to commit the crimes of which he was convicted, in
other words, that he did not entertain an honest belief that he was
entitled
to act in private defence…”
[41]
If
the accused was under attack by two males while he was fastened by a
rope around his legs and neck, it is inexplicable how he
could have
sustained such negligible injuries while the deceased’s
injuries were fatal. The doctor could not find any evidence
of
injuries that may have been caused by the rope around the accused’s
neck. The accused’s claim of being assaulted
with a steel
dropper was not substantiated by medical evidence. The doctor further
opined that the injury or injuries at the back
of the accused’s
head were old healing wounds but showed an open area with a scab
which meant that it was healing well. The
lower wound had a scab
formation which led to his conclusion that they were older than a
day. The State went all out to disprove
the accused’s
version that his injuries on the back of his head and his back were
sustained during the murder incident. It
is only after changing
counsel and, I must add, having heard Captain van Kradenburg’s
evidence about the said injuries that
it became clear that those
injuries were inflicted before the death of the deceased.
[42] The version about the accused being
tied with a rope is far-fetched, and incoherent. The allegation that
Mr Willem
Bruwer was in the company of the deceased at point B is a
fabrication. There is no mention of Mr Bruwer’s injuries or the
role he played during the ordeal especially after the accused had cut
the rope off. If one considers the version by the accused
that they,
meaning Mr Bruwer and the deceased, were colluding against him at
point B, the evidence does not support that allegation.
There is no
evidence whatsoever that Mr Bruwer sustained any injuries while he
assisted the deceased to attack the accused. It
seems highly unlikely
that he, Mr Bruwer, would have left the deceased at point B to die
without seeking medical help. It is unlikely
that he would have stood
there leaving the deceased under attack by the accused without
summoning the police or seeking any form
of intervention. If he was
in cahoots with the accused he would not have asked the accused to
drive with him to the police station
after his father had sought his
assistance. It is clear to me that Mr Willem Bruwer only became
involved at the request of his
father.
[43] The aspect of the presence or absence
of Ricardo at the accused’s place of residence needs
mentioning. When
the accused was still represented by Adv Steynberg,
the following was put to Ricardo, acquiescing that he was present at
his residence:
“
Mr
Steynberg
: Dit is my instruksies dat
toe u self daar by die ‘yard’ inkom toe is die
beskuldigde al ten volle geklee.
Ricardo:
Nee hy
was nog nie.
Mr
Steynberg:
Hy sě hy het die hemp
in die water ingegooi maar hy ontken dat hy daar brood en polony
gevat het en geëet het.
Ricardo
: Ons was
twee by die huis.
Mr
Steynberg
: Hy sě hy wil hě ek
moet dit aan u stel dat dit onmoontlik is dat u 4 minute oor 7 daar
kon aankom hy sě want hulle
ry al 07:00.
Ricardo:
Hulle
was nog daar toe ek daar kom..”
The instructions that the accused gave to his new
counsel, Adv Pretorius, was that Ricardo was not present at his place
of residence
the entire day of the incident. That cannot be
true. From the reading of the record of proceedings when Ricardo
testified
and was subjected to cross-examination, it was never put to
him that he was not present at the accused’s place of residence
that day. In fact, Katriena, Captain Steenkamp, Captain van
Kradenburg and Mr Bruwer Snr confirm that Ricardo was present. I am
satisfied from the evidence presented that Ricardo was indeed present
that day at the accused’s place of residence.
[44] The Constitutional
Court in
S v Boesak
[5]
held as follows:
“
The
fact that an accused person is under no obligation to testify does
not mean that there are no consequences attaching to a decision
to
remain silent during the trial. If there is evidence calling for an
answer, and an accused person chooses to remain silent in
the face of
such evidence, a court may well be entitled to conclude that the
evidence is sufficient in the absence of an explanation
to prove the
guilt of the accused. Whether such a conclusion is justified will
depend on the weight of the evidence. What is stated
above is
consistent with the remarks of Madala J, writing for the Court, in
Osman & Another v Attorney-General, Transvaal,
when he said the
following:
“
Our legal system is an adversarial one.
Once the prosecution has produced
evidence sufficient to establish a
prima
facie
case, an accused who fails to
produce evidence to rebut that case is at risk. The failure to
testify does not
relieve
the prosecution of its duty to prove guilt beyond reasonable doubt.
An accused, however, always runs the risk that, absent
any rebuttal,
the
prosecution’s case may be sufficient
to prove the elements of
the offence. The fact that an accused
has to make such an election is not
a breach of the right to silence.
If the right to silence were to be so interpreted, it would destroy
the
fundamental nature of our
adversarial system of criminal justice””
Also see in this regard
S
v Chabalala
[6]
;
S v Rathumba
[7]
and
S
v Mavinini
[8]
[45] Although what
happened at point B is circumstantial evidence it is corroborated by
the medical evidence of the
doctor and the other State witnesses.
In the well-known dictum in
R
v Blom
[9]
pertaining to the test to be applied when reliance is placed on
circumstantial evidence the following was emphasised:
“
In
reasoning by inference there are two cardinal rules of logic which
cannot be ignored:
(1)
The
inference sought to be drawn must be consistent with all the proved
facts. If it is not, the inference cannot be drawn.
(2)
The
proved facts should be such that they exclude every reasonable
inference from them save the one sought to be drawn. If they
do not
exclude other reasonable inferences, then there must be a doubt
whether the inference sought to be drawn is correct.”
[46]
In evaluating the evidence in
its totality, I considered the inherent
probabilities. Heher AJA in
S
v Chabalala
[10]
dealt with the
aspect as follows:
“
The correct approach is to weigh up all the
elements which point towards the guilt of
the accused against
all those which are indicative of his innocence,
taking proper
account of inherent
strengths and weaknesses, probabilities and
improbabilities on both sides and, having
done so, to decide
whether the balance weighs so heavily in favour of
the State as to exclude any reasonable doubt about the accused’s
guilt.”
[47] The evidence of the
state witnesses corroborated each other in all material respects. The
chronology of events
from the time the accused was picked up by the
deceased from his place up to the stage when the deceased drove in
the company of
the accused. The evidence of the state witnesses
provides a golden thread of how the events leading to the deceased’s
death
unfolded
.
[48]
The following are conspicuous:
48.1 The accused was
employed by the deceased as a casual worker
who performed all the odd jobs at his farm;
48.2 The deceased fetched
the accused from his home in the morning
and was seen by Ricardo wearing a brown jacket and the green
striped T-shirt which he subsequently changed having noticed that
it was blood-stained. Katriena, Capt Steenkamp, Mr Bruwer Snr and
Capt van
Kradenburg have corroborated the version of Mr Ricardo
Louw that he was present at the accused’s place of residence
from
morning and the accused’s denial thereof is fallacious.
48.3 The knife handed in
as Exh 1 was discovered missing the morning
of the incident when Ricardo wanted to use it. The
accurate
description of the knife by Ms Katriena Dawson as well as her
identification thereof in Court was not only convincing but
credible. On the other hand, the accused only claimed during
cross-
examination of Katriena that it was his knife and did not elaborate
further.
48.4 The accused admitted
to delivering the two fatal stab wounds that
caused the
death;
48.5 The accused does not
dispute that he was in the company of the
deceased after
Mr Raats alighted from the bakkie which, at the
suggestion of the accused, proceeded towards the direction of point
B where
the deceased was subsequently found dead;
48.6 The accused was
subsequently seen driving around in the
deceased’s
bakkie.
48.7 The explanation furnished by the
accused on how he ended up in possession of and driving the
deceased’s bakkie
around town remains unsatisfactory and
unconvincing. Most of the State witnesses were perturbed at seeing
the accused driving the
deceased’s bakkie because according to
them the deceased would never give anybody possession of his bakkie.
The accused’s
possession of the bakkie attracted their
attention and evoked suspicion.
48.8 It is also
unimaginable how during an unconscious state the
accused could
also realise being stepped on the neck by the
deceased.
48.9 I have already referred to and found
that the injuries sustained by the accused are not corroborated
medically
and in fact, as opined by the doctor, were healing wounds
which, were sustained before the deceased’s death. This fact is
further supported by the uncontested evidence of Capt van Kradenburg
that the back and head injuries were not sustained on 08 November
2017 and the elbow injury was caused by falling at the drainage
sleuth which was two and half meters high and about seven meters
wide. Ricardo Louw had also testified that the accused had informed
him that he fell in the sleuth that day.
48.10 If the accused was attacked by both Mr Bruwer and
the deceased, after stabbing the deceased he was no longer in any
danger.
It is inexplicable and unclear why he did not contact the
police or drive to the police station. Unless the reason for not
involving
the police was to conceal the murder.
48.11 The presence
of Mr Willie Bruwer at the scene was not only
excluded by
his evidence and his father’s but also from
a
witness, Mr
Andre Swanepoel through the GPS
testimony. I
am satisfied that Mr Willem Bruwer was never at
the
scene of
the incident when the offences were committed.
48.12 The accused was never under any
form of attack which he had to
ward off. The
defence of self-defence is a fabrication and may
have been given by the accused, in my
view, to escape conviction.
Malan JA made the following
pronouncements in
R
v Mlambo
[11]
:
“
Moreover, if
an accused deliberately takes the risk of giving false evidence in
the hope of being convicted of a less serious crime
or even, per
chance, escaping conviction altogether and his evidence is
declared to be false and irreconcilable with
the proved facts,
a court will, in suitable cases, be fully justified in
rejecting an argument that, notwithstanding that
the accused did
not avail himself of the opportunity to mitigate the gravity of the
offence, he should nevertheless
receive the same benefits as
if he had done so.”
[49] It is settled law
that where an inference is sought to be drawn all the proved facts
taken together must exclude
every other reasonable inference from
them save the one sought to be drawn. See also
S
v Reddy and Others
[12]
and
R
v De Villiers
[13]
.
I am left
with no other option but to find that the only inference to be drawn
in the above circumstances and from all the
evidence is one of guilt
of the accused.
[50] Mr Barnard, arguing for the State,
submitted that since the accused failed to testify, I should consider
the following
facts to support premeditated murder with direct
intention as a form of intent:
The
accused carried a 32cm knife with him on that day. The question is if
he knew that the deceased as his employer would fetch
him from home
and bring him back home there was no reason for him to be carrying
that knife. The accused directed the deceased
towards the veld which
was not even a shorter route to the deceased’s place of
residence. He took the deceased to a secluded
area and stabbed him
twice on his neck and chest area and left him to die at the scene. Mr
Pretorius submitted that while he concedes
that it was reasonable to
infer from the proven facts that the killing of the deceased was
unlawful and intentional there is doubt
as to whether or not
premeditation existed. The only supporting fact, according to him,
was that the accused took a knife with
him that day. Counsel
submitted that the killing of the deceased must have been on the spur
of the moment.
[51] In as far as the
issue of premeditation is concerned Mathopo AJA had this to say in
Kekana v The
State
[14]
at paras 12 and 13:
“
[12]
Another argument advanced on behalf of the appellant was based on S v
Raath, where it was held that to prove premeditation,
the State must
lead evidence to establish the period of time between the accused
forming the intent to murder and the carrying
out of his intention.
In the present matter there is no evidence as to how much time passed
between the appellant’s admitted
decision to kill the deceased
and when he doused the bed with petrol and set it alight. But a
consideration of the appellant’s
evidence suggests that it was
a matter of a few minutes, at the least.
[13]
In my view it is not necessary that the appellant should have thought
or planned his action a long period of time in advance
before
carrying out his plan. Time is not the only consideration because
even a few minutes are enough to carry out a premeditated
action. “
[52] In as far as the offence of robbery
with aggravating circumstances is concerned, both counsel for the
State and
the defence agreed that all the elements were met for this
offence. Mr Barnard submitted that in the event that I should
consider
the following circumstances existed: the objective and
proven facts exists that the accused was in possession of the
deceased’s
bakkie which was taken away from him and in that
process the deceased was attacked and killed. There is no version by
the accused
which explains why he took the bakkie. I am satisfied
that there is a close link between the violence that was perpetrated
on the
deceased and the taking of his bakkie by the accused.
[53] Mr Pretorius correctly conceded that
the accused killed the deceased. Counsel further conceded that the
defence
of self-defence on the proven facts falls away. The defence
made a further concession, correctly so in my view, that Mr Willem
Bruwer was not involved at the crime scene at point B. It is my
finding that the State witnesses have corroborated each other in
all
material respects. It is my finding further that the evidence of Mr
William Bruwer was indeed supported by the objective evidence
of the
cell phone records from his cell phone and the cell phone of the
deceased as well as the GPS system. The State witnesses
were also
reliable, credible and honest. Their version connected like the
golden thread or interlocked jigsaw puzzle.
[54]
I am satisfied that the State has
discharged its duty to prove its case beyond reasonable doubt. I
therefore reject the version
of the accused as false and fabricated.
[55] On a proper conspectus of all the
evidence I find the accused guilty:
55(1) On Count 1: of robbery with
aggravating circumstances.
55(2) On Count 2: of premeditated murder having had
criminal intent in
the
form of
dolus
directus
.
MAMOSEBO J
NORTHERN CAPE DIVISION
For the State:
Adv T Barnard
Director Public Prosecutions
For the accused:
Adv. K Pretorius
Legal Aid Board
[1]
51 of 1977 as amended
[2]
Act 105 of 1997
[3]
Tweetalige Woordeboek/ Bilingual Dictionary: Bosman, Van der Merwe
Hiemstra eighth revised and enlarged edition. Pharos.
[4]
1993 (2) SACR 59
(A) 63i – 64b
[5]
[2000] ZACC 25
;
2001 (1) SACR 1
(CC) at para 24
[6]
2003 (1) SACR 134
(SCA) at 142
[7]
2012 (2) SACR 290
(SCA) at para 40
[8]
2009 (1) SACR 523
(SCA) at 23
[9]
1939 AD 188
at 202
[10]
2003 (1) SACR 134
(SCA) at para 15
[11]
1957 (4) SA 727
(A) at 738B - D
[12]
1996 (2) SACR 1
(A) at 8c - g
[13]
1944 AD 492
at 508
[14]
(629/2013)
[2014 ZASCA 158
(1 October 2014)