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[2016] ZANCHC 24
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Alexander v S (KS68/2009) [2016] ZANCHC 24 (27 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
NO
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
YES
CASE NO:
KS
68/2009
DATE HEARD:
23/05/2016
DATE DELIVERED:
27/05/2016
In
the matter between:
ALEXANDER,
ANDRIES
Appellant
and
THE
STATE
Respondent
Coram:
Kgomo
JP
et
Olivier
J
et
Phatshoane J
JUDGMENT
Olivier
J
[1.]
The
appellant appeared before Majiedt J in the Gariep Circuit Court on
charges of housebreaking with intent to commit a crime unknown
to the
prosecutor (count 1), the rape of Mrs Fytjie Klaaste (count 2), the
murder of the said Mrs Klaaste (count 3) and the murder
of Mr Koos
Afrikaner (count 4). He pleaded not guilty to all these
counts and raised an alibi defence, viz that he
was in the company of
his girlfriend, Ms Veronica Meerkat, at a shebeen called Jam Alley.
He was convicted on counts 1 and
4 and sentenced to, respectively, 18
months imprisonment and 15 years imprisonment on those counts.
He was granted leave
to appeal against the convictions by the trial
Judge.
[2.]
It
is trite that a court of appeal will not readily interfere with the
findings of a trial court. It will only do so “
if
the recorded evidence shows them to be clearly wrong
”
[1]
.
[3.]
The
convictions were mainly based on the evidence of Mrs Anna Gouws.
Her evidence was that she had seen the appellant walk
right passed
her, armed with a knife, that she had witnessed him entering the
house where the deceased lived, that she had then
heard the deceased,
Mr Afrikaner, cry out in pain, that the appellant had then come out
of the house and re-entered the house with
a stone and that she had
then heard the thud of that stone inside the house. She left
when everything was quiet inside the
house
[2]
.
Both deceased died as a result of stab wounds.
[4.]
The
court
a
quo
was alive to the fact that Mrs Gouws was a single witness and that
for that reason, and also because of the fact that her evidence
pertained to the identity of the attacker, her evidence had to be
approached with caution.
[5.]
The
court
a
quo
was also mindful of the fact that Mrs Gouws had on her own evidence
been under the influence of liquor, and that it was perhaps
strange
that she had not immediately reported what she had witnessed,
especially in view of the fact that both deceased appeared
to have
been related to her.
[6.]
As
far as the reliability
[3]
of Mrs
Gouws’ identification of the appellant (as the person whom she
had seen entering the house of the deceased) is concerned,
it was
common cause that, although she observed the particular person at
night, the area where she had observed him had been well
lit, that
the person had walked right passed her and that she had known the
appellant well
[4]
. She
also made reference to the attacker’s so-called Rasta
hairstyle, and it was common cause that the appellant had
so-called
dreadlocks at the time. There was no suggestion of a reason why Mrs
Gouws would deliberately have falsely incriminated
the appellant.
[7.]
The
fact that Mrs Gouws had in her statement said that she saw something
shining in the appellant’s hand, something that looked
like a
knife, is not irreconcilable with her evidence that it had indeed
been a knife. Police statements are renowned for
their
inaccuracy and lack of detail
[5]
.
In any event, the issue here is not whether the object in the
person’s possession was a knife, but rather whether
that person
was the appellant.
[8.]
Exactly
how far the witness had been from the house of the deceased when she
saw the person entering the house is not really material,
because it
was her undisputed evidence that the person had just before then
walked right past her. That was when she would
have had the
best opportunity to identify the person, and from that point onwards
she clearly followed the movements of the person
until he entered the
house. Some safeguard for the reliability of Gouws’
evidence is the fact that the appellant informed
Piet Ntonga that he
was seen by a witness entering the premises of the deceased.
That witness can only be Mrs Gouws.
[9.]
It
is also not as if there was no explanation for Mrs Gouws’
failure to report what she had seen. She explained that
she was
scared of the appellant, and also of her violent and jealous husband,
and that she had been nervous. Although it
was unfortunately
not properly ventilated in the evidence it would appear that Mrs
Gouws made a report to her neighbour the next
morning, which in all
probability led to the police approaching the witness later that
morning.
[10.]
The
identification by Mrs Gouws of the appellant was materially
corroborated by,
inter
alia
,
the evidence of Mr Ntonga. His evidence was that he had been
incarcerated with the appellant in a police cell in Kenhardt
for a
number of days, both of them at that stage awaiting trial, and that
the appellant had, in reaction to Mr Ntonga’s question
why the
appellant was being detained, confessed to the rape and murders.
His evidence was that the appellant had
inter
alia
told him that he had killed the deceased Mr Koos Afrikaner (count 4),
that his friend Gavin had killed the other deceased, Mrs
Fytjie
Klaaste (count 3), and that Mrs Klaaste had also been raped (count
2). This evidence placed the appellant on the scene
where Mrs
Gouws identified him.
[11.]
The
version concerning the presence of two attackers was not necessarily
irreconcilable with the evidence of Mrs Gouws. She
had seen
only the appellant entering the house, but it could not be said that
her evidence excluded the possibility of the presence
of a second
attacker in the house at that stage.
[12.]
Mr
Van Tonder, who represented the appellant on appeal, criticised Mr
Ntonga’s evidence that the appellant had told him the
ages of
the two deceased during the alleged confession, and argued that it
was highly unlikely that the appellant would have known
their ages.
The possibility of the appellant having become aware of the ages of
the deceased by that time cannot be excluded
on the evidence.
[13.]
It
is also not unlikely that the appellant would have mentioned the
rape, without divulging particulars of whether it had been him,
Gavin
or both of them who had raped Mrs Klaaste.
[14.]
The
appellant denied having spoken to Mr Ntonga, and in fact denied that
they had been detained together in one cell. Captain
Van Wyk,
the Station Commissioner at the police station in Kenhardt, confirmed
that the appellant and Mr Ntonga had indeed been
detained in one
cell, until Captain Van Wyk became aware of the fact that the
appellant had tuberculosis, when the appellant was
immediately
transferred to Upington.
[15.]
Insofar
as it may have been suggested that Mr Ntonga’s evidence of a
confession by the appellant had been a fabrication, the
evidence of
Captain Van Wyk that Mr Ntonga had told him about the appellant’s
confession could arguably have been relevant
and admissable.
[16.]
That
the investigating officer had not taken a statement from Captain Van
Wyk about Mr Ntonga’s report does not in any way
detract from
the credibility of Captain Van Wyk’s evidence in this regard.
Mr Ntonga also testified that he had told
Capt. Van Wyk what
the appellant had said to him.
[17.]
The
presence of another person’s semen on the body and clothes of
the deceased Ms Klaaste confirms Mr Ntonga’s evidence
of what
the appellant had told him about the deceased having been raped, and
about him having been accompanied by a second attacker.
[18.]
The
evidence of Mr Martin Tieties served to rebut the appellant’s
version that he had at the time of the attack been at the
Jam Alley
shebeen. He was adamant that he had witnessed the appellant
arriving at that shebeen shortly after 20:00 that evening.
That
would mean that, if indeed the appellant had been at that shebeen
earlier, he must have left there at some stage, which would
of course
be irreconcilable with the appellant’s alibi.
[19.]
The
finding that Mrs Meerkat had not been a credible witness was not
challenged and she in any event contradicted the alibi
version
of the appellant.
[20.]
I
am far from convinced that any of the trial court’s findings
were wrong and I can therefore see no reason for interfering
with
them. In my view the appeal must be dismissed.
[21.]
The
following order is therefore made:
THE
APPEAL IS DISMISSED AND THE APPELLANT’S CONVICTIONS ON COUNT 1
(HOUSEBREAKING WITH INTENT TO COMMIT A CRIME UNKNOWN TO
THE
PROSECUTOR) AND COUNT 4 (THE MURDER OF MR KOOS ALEXANDER) ARE
CONFIRMED.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
______________________
F
Diale KGOMO
JUDGE
PRESIDENT
NORTHERN
CAPE DIVISION
I
concur.
______________________
V
M PHATSHOANE
JUDGE
NORTHERN
CAPE DIVISION
For the
Appellant: Mr A Van Tonder
Legal
Aid South Africa
For the Respondent:
Adv J J Rosenberg
Office
of the Director of Public Prosecutions
[1]
S v Monyane and Others
2008
(1) SACR 543
(SCA) para [15]; See also
S
v Kekana
2013 (1) SACR 101
(SCA) para
[8]
[2]
The deceased Mrs Fytjie Klaaste was the mother of
the deceased Mr Koos Afrikaner.
[3]
As opposed to credibility.
[4]
Compare
S v Ngcamu
and Another
2011 (1) SACR 1
(SCA) para
[10]
[5]
S v Xaba
1983
(3) SA 717
(A) at 729-730;
S v
Rautenbach
2014 (1) SACR 1
(GSJ) para
[128];