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[2016] ZANCHC 49
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S v Van Staden (K/S21/2016) [2016] ZANCHC 49 (7 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No :
K/S
21/2016
Heard
on:05/09/2016;
07-09/09//2016
21-24/11/2016
Delivered
on:07/12/2016
In
the matter between: THE STATE
v
NEVILLE
VAN
STADEN
ACCUSED
JUDGMENT
MAMOSEBO
J
[1]
The accused, Mr Neville Van Staden, is indicted on one charge of
murder read with s 51 of the General Law Amendment Act,
105 of 1997,
as amended, a second count of assault common, a third of assault with
intent to do grievous bodily harm and a fourth
of assault common. The
Justice Centre appointed Adv Maphalla on judicare to represent him.
He pleaded not guilty on all four counts
and did not tender any plea
explanation or make any admissions. The State is represented by Adv
Kgatwe from the office of the Director
Public Prosecutions (DPP).
[2]
The post mortem report was handed in by agreement and marked Exh "A".
The accompanying photos and the affidavit in
terms of s 212 of the
Criminal Procedure Act, 51 of 1977 (the CPA) by W/O Maureen Mokgokolo
marked Exh "B"; the photos
from the crime scene and the
affidavit in terms of s 212 of the CPA by W/O Phathutshedzo Tshibalo
marked Exh "C" were
all formally admitted in evidence. The
accused further formally admitted the identity of the deceased, Ms
Nancy Jas.
THE
STATE CASE
[3]
Ms Lya Olyn is a registered nurse with a diploma in General Nursing.
She has been in the profession for 30 years. She certified
the
deceased dead at the scene on 05 December 2015. The defence did not
cross examine her. The deceased's body was removed
from the
scene by Mr Isak De Vos, a Pathologist Officer employed by the
Department of Health for the past 27 years, and transported
to the
mortuary. The body did not sustain any further injuries during the
transportation to the mortuary where he registered it
under the De
Aar No 224/2015, and up to the occasion that the post mortem was
conducted.
[4]
Dr William Andrew Van der Merwe, permanently employed by the
Department of Health and stationed at the Forensic Laboratory
at De
Aar, conducted the post mortem on the body of the deceased on 10
December 2015. His academic qualifications are a BSc, MBChB
obtained
from the University of Rhodesia in 1975 as well as a diploma in
Occupational Health (DOH) from the Witwatersrand University
and a
diploma in Forensic Pathology (Dip For Med (SA)) from the South
African College of Forensic Pathologists obtained in 1998.
His
qualifications and credentials are not disputed. The Chief
post-mortem findings were:
4.1
Multiple external and internal assault injuries; and
4.2
Strangulation.
[5]
The doctor concluded that the cause of death was
Asphyxiation (lack of oxygen to the body) due to strangulation,
as
well as the consequences of multiple assault injuries. The body of
the deceased was depicted on the photographs as having sustained
innumerable injuries which the doctor categorised under three heads:
Abrasions, contusions and lacerations. It is necessary to
mention all
the identifiable injuries because they collectively contributed to
the cause of death.
5.1
Abrasions
Abrasions
were found all over the left side, the right side and the anterior
aspect of the forehead; all over the left side, the
right side and
the anterior aspect of the chin; all over the left side, right side
and the anterior aspect of the neck; all over
the left and
right cheeks; all over both knees; on the posterior aspects of both
shoulders; all over both elbows; on the
lumber (lower) aspect of the
back; above the left buttock; and on the lateral aspect (outer part)
of the left upper leg.
5.2
Contusions
(bruising)
They
were on the right side of the chin; all over the middle of the back;
on the lateral aspect of the right outer leg; above the
right iliac
crest Oust above the right hip); and on the lateral aspect of the
right upper arm. The doctor explained that the contused
areas
were confirmed by dissecting the skin and confirming blood in the
sub-cutaneous tissues, simply put, there was blood
found in the
tissues after the dissection.
5.3
Laceration
The
doctor found a small laceration into the right naso-orbital junction
Gust below the right eye). It did not penetrate the right
orbital
cavity.
5.4
There was sub-cutaneous bruising on both sides of the scalp.
5.5
The deceased sustained multiple rib fractures. The ribs 6 -I0
on the
right side were fractured while on the left side all the ribs 2 - 10
were fractured. These fractured ribs caused a laceration
in the upper
lobe of the right lung and the left lung was pulpified. There was
also pulpification of the right lobe of the liver.
[6]
The doctor clarified that all the injuries sustained were caused by
severe blunt force and amplified that even if the deceased
was
treated by all the specialists surgeons the world over, based on
these injuries, she would not have survived. The deceased
was simply
tortured to death.
Based
on
the
medical
evidence
I am satisfied
that the state has proved
beyond a
reasonable
doubt
that
the
deceased
was
murdered.
The
only question
now left for determination
is who the murderer was.
[7]
This is how
the
events in
count
I unfolded.
Mr Raymond
Van
Wyk
is
35
years
old
and
is
the
deceased's
cousin.
He resides in the same house as the deceased's mother. On
04 December 2015 after knocking off from duty between 2lh00 and 22h00
he visited a friend in the informal settlement known as Plakkerskamp.
From the friend's place he proceeded to the accused's residence
to
repay him the R10 that he owed him. The accused was the deceased's
boyfriend and they lived together.
[8]
As Van Wyk approached the couple's shack he heard an argument. Upon
arrival he found the door to the one-roomed shack open and
the
accused standing at the door. It was dark inside. At the accused's
request he used the assistive device of his cellphone to
illuminate.
He shone the light on the deceased's face. She was lying on the bed.
He observed that the deceased's face was swollen,
her nose was
bleeding and her mouth was full of blood. The accused came and sat
next to the deceased as she reported to him how
the accused assaulted
her. Van Wyk pleaded with the deceased to leave with him but the
accused refused. The deceased was evidently
severely beaten and Van
Wyk was concerned for her safety.
[9]
Mr Van Wyk reluctantly left the deceased with the accused and went
home where he first made a report to his father and later
to the
deceased' s mother, Mrs Feitjie Jas. Mrs Jas undertook to visit the
deceased the next morning. The following morning, upon
his urging,
the deceased's mother left for the deceased's place. Upon her return
she was crying and reported to the family that
the deceased was dead,
which is common cause. Van Wyk did not observe the state of sobriety
of the accused the previous night because
the room was dark.
[10]
It must be borne in mind that a report recounted by a witness
concerning what a victim of an assault relayed to the witness
in the
presence and hearing of the culprit (the assailant) is not hearsay
evidence. She told Van Wyk: "Neville assaulted me".
This
statement was not controverted by the accused at the time.
[11]
During cross-examination of Van Wyk, his counsel put it to him that
there was an altercation between him and the accused over
an amount
of
R250 which Van Wyk owed him. It was denied that there was
an altercation between the accused and the deceased as he had
testified.
It was further put to Van Wyk that when he arrived the
accused was not present in the house but on the contrary the accused
found
Van Wyk already there. Van Wyk's presense with the couple
between 21h00 and 22h00 on 04 December 2015 has been established to
my
satisfaction.
[12]
This is Mr Frans Wewu's account. He is an uneducated 55
year old
man
and
the
complainant
in
Count
2.
His evidence by sheer coincidence also relates to Count 1. He
went to a tuck-shop in his vicinity around 21h00 on 04 December 2015
to buy himself half a loaf of bread in order to prepare his lunch box
for the following day. The customers purchased through a
window of
the tuck-shop. The shopkeeper served them from inside the caravan.
The source of light inside the tuck-shop was a rechargeable
lamp
which illuminated up to the service point. Outside the tuck-shop
visibility was provided by a nearby high-mast light commonly
known as
an Apollo-light.
[13]
Wewu stood behind the accused who was buying lose cigarettes. After
the transaction the accused took a few steps as though
he was leaving
but turned and charged at him. The accused delivered a blow just
above his right eye with a clenched fist. He said
something to the
effect that he was Neville and should not be undermined. Wewu showed
a one (1) cm healed scar just above his right
eye. He did not receive
any medical attention.
[14]
The accused moved about 45 metres away and again returned to where
Wewu was still waiting to be served. He then drew a sheepshear
blade
from the left side of his hip.
He repeated that he should not
be
undermined because he would stab and kill Wewu. Wewu did not respond
as he was frightened. He paid for the bread and went
home. The
assault and threat were unprovoked. Although he wanted to go
elsewhere that evening he feared that the accused would
carry out his
threats and retired to bed.
[15]
While trying to dose off Wewu heard a loud male and a female voice
and recognised the male voice as being similar to his assailant's
at
the tuck shop. The female screamed repeatedly:
"Neville
you're
killing
me, Neville
you’re
injuring me."
The male
voice reprimanded:
"You
are making
nois
e
you
bitch".
Wewu eventually fell
asleep.
[16]
Wewu's shack and that of the couple are very close to each other,
just across the road. Wewu was too scared to intervene or
investigate, for the stated reason. The next morning around 04h00 he
heard male voices and running footsteps. A male voice cried
out:
"Neville
ek
het jou
niks
gemaak.
" The now familiar voice responding:
"I
am not done with
you, I
will
get you.
" It transpired, see paras 17 -21 below, that
it was in fact the accused who chased Mr Phillip Kers. In the morning
while taking
a bath he heard many voices outside. He later
established from Ms Dimakatso Patosi that the deceased had died. Ms
Patosi testified.
The police later arrived. The deceased's body was
taken away.
[17]
Mr Phillip Kers, the complainant in Counts 3
and 4
knocked
off from
work around
17h00
on 04 December 2015.
He visited his aunt and had wine with the
family. He left around 21h00 for his home. On his way he met his
friend Pate and his girlfriend
and invited them to his place for a
drink. Just before they arrived at his place, as they walked past the
accused and
deceased's shack, he
heard the accused's girlfriend
screaming thrice:
"Neville,
Neville
please
don't kill me.
" It went quiet for a
while. They sat next to the door of his shack ("K2")
diagonally opposite the accused's shack
("K1") measured by
W/O Tshibalo of the Local Criminal Record Centre at about 7.2 metres
away. The location where Kers
and his companions sat is depicted as
point B on photo 11 of Exh "C". From where the deceased was
lying, Point A on Exh
"C", to the point where Kers was
standing when he heard the screams was measured to be 18.5 meters.
[18]
As Kers and his guests were having a drink, he saw a person, the
accused, walking past a thorn tree, depicted on photo 10 of
Exh "C".
He asked where "Phillip", meaning Kers, was. Mr Terence
Klaaste pointed out that Phillip was with
them where they were
seated. Kers noticed that the accused was armed with a sheepshear
blade. As the accused was approaching he
sensed that an attack was
imminent. He was amazed because the accused had never set foot at his
place before. Kers then fled. The
accused closely pursued him but he
managed to evade him and sought refuge at his cousin's place where he
spent the night.
[19]
Without warning and unprovoked the accused angrily pounced on Kers in
the early hours of the morning around 05h00 while he
was seated
outside his cousin's house. The accused hit him once with a clenched
fist on his mouth, flooring him. Whilst still so
sprawled the accused
kicked him with booted feet in the stomach, causing severe pain. He
sustained injuries to his mouth and bled
therefrom.
[20]
Kers fled to the home of Ms Dimakatso Patosi, a community leader in
the area, to seek her intervention. Although she was reluctant
at
first to intervene that early the persistence by Kers' knock on her
door left her with no option but to accompany him to the
accused's
place. Upon their arrival she entered the shack alone while Kers
stood outside terrified of the accused. The accused
was absent but
the deceased was found dead inside. The reasons for his unprovoked
assault on Kers and his relentless pursuit of
him with a dangerous
weapon are a mystery to Kers.
[21]
The cross-examination of Kers by the accused's counsel suggested that
the accused was not the person heard by the witnesses
to have been
inside the shack during the deceased's screams. It was further
suggested that the accused merely chased Kers away
because Kers asked
him for a puff on his cigarette. He would have told Kers that he did
not want people near his shack as he had
recently suffered some loss
after a housebreaking. It was also put to Kers that he hurled stones
at the accused at the tuck-shop
because Kers took exception to the
accused having accused him of breaking into his shack and stealing
therefrom.
[22]
Mr
Terence
Klaaste
testified and
corroborated Kers in all material respects.
Mrs
Dimakatso
Patosi
on the other hand corroborated Kers' testimony in
all material respects. Ms Patosi went on to explain that she later
re-entered
the deceased's house accompanied by Ms Lena "Auntie
Vonkie" Olivier, an elderly 72 year old pensioner, and the
deceased's
mother, Mrs Feitjie Jas, on 05 December 2012. Mrs Patosi,
Mrs Olivier and Mrs Jas described their observations of the injuries
on the body of the deceased as she was sprawled lifeless on the bed.
The abrasions and swelling on her face with some dried blood
from her
mouth had attracted flies. In desperation, the deceased's mother
called out her name three times, presumably in shock.
Patosi advised
the elderly ladies not to touch the body as she had telephonically
contacted the police, who arrived
shortly. An ambulance
also arrived while the witnesses were still at the scene.
[23]
Mrs Jas testified and corroborated what was stated by Patosi. She
expounded that the accused and the deceased were not married
but had
three children between them. The eldest is 21 years old and resides
elsewhere in Kimberley while the 15 year old resides
with the
deceased's brother and still attends school. The 10 year old boy
resides with another member of the family. The accused
does not
contribute financially or otherwise to the wellbeing of his children,
she said.
[24]
Const Pule
Matheatau,
attached
to
the Visible
Policing
SAPS Unit
, testified that he and Const Kies were on duty
on 05 December 2015 around 06hl5 in the morning when they received
information from
the Customer Service Centre (CSC), the old-styled
Charge Office, that there was a woman who has been beaten and was
lying motionless
on the bed. They rushed to the scene where Patosi
pointed out the shack and the deceased to them. Const Matheatau
observed that
the deceased had a swollen face and had blood around
her mouth. She also had scratch marks on the right side of her face.
He immediately
cordoned off the area and summoned an ambulance and
the detective on standby duty, Sgt Riet. He handed over the crime
scene to
Sgt Riet. The deceased did not sustain any further injuries
in his presence. The deceased was wearing red shorts and a white
t-shirt.
[25]
W/O
Tshibalo,
a
S
outh
African
Police
S
ervice
Member
attached
to the
Local
Criminal
Record Centre
,
De Aar, testified that he completed an affidavit in terms of s 212 of
the Criminal Procedure Act, 51 of 1977 (the CPA), with the
photographs marked Exh "C", having compiled the photo album
of the crime scene. He was contacted by the investigating
officer,
Sgt Riet, to attend the crime scene at Plakkerskamp in Prieska. He
travelled from De Aar which is a distance of approximately
380 km's
from Prieska. When he arrived the body had already been removed. Sgt
Riet pointed out the scene in the deceased's home
and Kers pointed
out to him where he was standing when he heard the screams. W/O
Tshibalo then compiled the photo album after making
his own
observations. He did not find any weapon nor observe any blood in the
shack. He also saw soiled clothes: A pair of shorts
and underwear
which had faeces next to the door. He did not know, neither did he
establish to whom the clothes belonged. He also
did not confiscate
them. W/O Tshibalo said for the stated reasons the scene was not
original when he arrived.
[26]
Sgt Mmoloki Saviour Riet,
testified that he has been an SAPS
member for 12 years, five years of which was served as a detective.
He was the detective on standby
duty when he responded to a telephone
callout. He found Consts Matheatau and Kies at the scene who in due
course handed it over
to him. He otherwise confirms what is already
known and not in dispute. Next to the door was a pair of smelly pants
and underwear
which were soiled with faeces. He later interviewed the
witnesses already identified. The accused was by then among the
bystanders.
Sgt Riet summoned the LCRC, De Aar.
[27]
Sgt Riet spoke to the accused the same morning of 05 December 2015 to
ascertain his whereabouts having been informed that he
was the
deceased's live in partner. At this stage of the interview the
accused was not a suspect. The accused explained (what amounts
to an
alibi defence) to the investigating officer. He said that he had
visited the Pers Kombers tavern around 22h00 leaving the
deceased
behind. When the tavern closed he left with a new girlfriend
whom he found at the tavern and had spent the night
with her. The
accused could, nevertheless, not furnish to the detective the name of
the girlfriend or where they spent the night.
He could also not
furnish him with names of any other person who could confirm his
alibi. He said he was as surprised as anybody
else to find people and
the police in front of his home that morning. Sgt Riet informed the
accused that some witnesses had reported
to him that they saw him
around the vicinity of Plakkerskamp around 05h00 that morning and
enquired from him what his comment was.
The accused was unable to
answer the detective. Sgt Riet arrested the accused and explained his
rights to him whereafter he requested
Const Matheatau to take the
accused to the police station and to detain him in the holding cells
for further questioning as a possible
suspect. The explanation of
rights was in compliance with
S v Thebus and Another
[2003] ZACC 12
;
2003 (2) SACR 319
(CC).
[28]
Sgt Riet interviewed the accused the following day on Sunday 06
December 2015 after explaining to him his rights again as they
appear
in detail on page 2 of the warning statement.
[29]
According to Sgt Riet W/O Tshibalo arrived between 10h00 and 11h00.
The body of the deceased had already been removed at his
direction
because it had been lying there in the shack for several hours from
the previous night. He explained that it was December
and the
temperature in the Northern Cape at the time was scotching. The body
was already attracting flies. Members of the community
also
congregated around the crime scene. In an attempt to manage the
situation he then exercised his discretion and allowed Mr
De Vos from
Forensic Pathology to remove the body which was placed at the back of
the forensics' vehicle. Sgt Riet later completed
the necessary
paperwork.
The
State closed its case.
[30]
The
accused testified
in his
defence
and did not
call
any
witnesses.
His version is that he
was seated with the deceased under the veranda drinking wine on the
night of the 04 December 2015. He later
went to the nearby tuck-shop
to purchase a packet of 10 cigarettes, having left the deceased
behind. He paid using a Rl00 note
and received R80 00 change which he
ostensibly pocketed. When he arrived home he discovered that his
money was missing and retraced
his footsteps to the tuck-shop. Wewu
was at the tuck-shop and was being served from the window. He found
the R80 00 next to Wewu
who claimed it to be his. He then pushed Wewu
who fell to the ground. He did not notice any injuries on him because
there was inadequate
lighting. He returned home and joined the
deceased.
[31]
As he and the deceased were seated under the veranda Kers approached
them and asked for cigarettes. He warned Kers exclaiming
that his
landlord, Mr Heroman, complained of the theft of his stones around
his premises. He then chased Kers away.
[32]
Around 22h00 he informed the deceased he was heading for Queens
Tavern. He left her seated under the veranda uninjured. At
Queens he
drank two 750 ml bottles of black label beer. There were many people
at the tavern. He danced to his preferred type of
music and played
pool. After midnight he walked to his parental home and spent the
night there in a back room previously belonging
to his younger
brother.
[33]
The following morning, around 06h10 on 05 December 2015, he went
home. His attention was caught by the crowds of people gathered
there, with visible police vehicles on the scene. That caused him to
increase his pace in curiosity. Upon his arrival Const Adams
barred
him from entering the shack. Const Kies pulled him aside and asked
him to remain calm. The investigating officer, Sgt Riet,
then
approached him and introduced himself and asked about his whereabouts
the previous night. He informed Sgt Riet that he was
at Queens Tavern
and later went to sleep at his parental home. He was asked to change
his clothes to make them available for forensic
investigation. He
entered the shack to change. It is when he saw the deceased for the
first time in that state lying on the bed.
The deceased's body was
then removed and placed at the back of the pathology van. Sgt Riet
then informed him that he is a possible
suspect and ordered Const
Matheatau to take him to the police station. He denied killing the
deceased and does not know what happened
to her. He also denied
assaulting the two complainants. The accused also denied being in
possession of a sheepshear blade.
[34]
The four incidents happened at different times but the chronology and
their interrelatedness is strikingly unmistakable. I
am mindful of
the guidance by the Supreme Court of Appeal on the correct approach
to the evaluation of evidence in a criminal trial
as enunciated by
Heber AJA in
S
v
Chabalala
2003 (1) SACR 134
(SCA) at 139i -
140b (para 15):
"[
1
5]
The tr
i
al court
'
s approach to the case
was,
however, holistic and in
t
his
it was
undoubtedly right:
S
v
Van Aswegen
2001
(2) SACR
97
(SCA).
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.
The
result may
prove
that one scrap
of evidence
or one defect
in the
cas
e
for
either
party
(such as the failure to call a material
witness
concerning
an
identity
parade)
was decisive but that can only
be
an
ex
post
facto
determination and a trial court (and counsel) should avoid the
temptation
to latch onto
one
(apparently) obvious
aspect
without
assessing
it in the
context
of
the
full
picture
presented
in evidence.
Once
that approach
is
applied to the evidence in
the
present
matter the
solution becomes
clear.
" This salutary approach by Reher AJA was also adopted
in
S
v
Train
o
r
2003 (1) SACR 35
(SCA) at 41b-c (para 9).
Count
2
[35]
Wewu was a single witness on this count. It is trite that the
Cautionary Rule is applicable. However, s 208 of the Criminal
Procedure Act, 51 of 1977 (the CPA) provides that a single witness'
evidence is adequate to sustain a conviction, provided
that it is satisfactory in all
material respects. See
S
v
Sauls
1981 (3) SA 172
(A) at 180E -F. The accused hit him
once with a clenched fist and
further threatened
him with a
sheepshear blade. This dangerous weapon was seen by several witnesses
whose evidence has been dealt
with. Wewu's evidence on this aspect,
therefore, does not stand alone. He sustained a l cm cut above his
right eye. He was extensively
cross-examined by the accused's counsel
but remained consistent in his version. Not once was the version
testified to by the accused
put to Wewu that he laid claim to the
accused's cash of R80 00 which he lost at the tuck-shop. See
President of the Republic
o
f
South
Africa
and
Others v
South
African Rug
b
y
Football Un
i
on
and Other
s
2000 (1) SA 1
(CC) at 36J
-37B (para 61) where the following is stated:
"[61]
The institution of cross-examination not only constitutes a right, it
also imposes certain obligations. As a general
rule it is essential,
when it is intended to suggest that a witness is not speaking the
truth on a particular point, to direct
the witness's attention to the
fact by questions put in cross-examination showing that the
imputation is intended to be made and
to afford the witness an
opportunity, while still in the witness box, of giving any
explanation open to the witness and of
defending his or
her
character. If
a
point
in
dispute is
left
unchallenged in
cross examination, the
party
calling
the witness is entitled to assume that the
unchallenged
witnesses
's test
i
mony
is
accepted
as
correct.
This
rule
was enunciated by
the
House of
Lords in
Browne v
Dunn [(1893) 6
R 67
(HL)
and
has
been
adopted
and
consistentl
y
followed by
our
courts.
"
[36]
I find the accused's version to be a fabrication and an afterthought
which lacks merit. He attacked Wewu unprovoked. Even on
his version
alone that he pushed Wewu who fell to the ground amounts to an
assault. I however accept the version of Wewu as the
truth and reject
the accused's.
I
am satisfied that the State has proved its case beyond reasonable
doubt in Count 2.
The
accused is found guilty of assault common on Count
2.
[37]
The
modus
operandi
of the accused in
respect of the assault allegations revealed a pattern. Kers was also
very terrified of him to the extent of being
afraid to sleep at his
own home and sought accommodation at his relatives' place. The
accused, charging like a vicious bullterrier,
subsequently attacked
him at his place of refuge and hit him on his mouth and kicking him
in the stomach while he was on the ground.
Kers had to persistently
knock on Patosi's door, seeking her intervention at dawn. The
similarity in the versions of the two complainants
is that they had
done nothing to the accused and never retaliated. The accused walked
around armed with a sheepshear blade and
displayed raw gratuitous
aggression. Mr Kgatwe submitted that the fact that the accused did
not use the instrument was immaterial
because it is his intention to
cause Kers grievous bodily harm that must be assessed and for which
he must be convicted of assault
with intent to cause grievous bodily
harm.
[38]
The accused disputed both incidents and denied having assaulted Kers
at all. According to him he only chased Kers away because
he did not
want him or anyone else near his shack. If Kers was under no attack
the question remains what caused him to flee, leaving
his guests with
whom he was unwinding at his place. What is worse for the accused is
that Kers flees again from his relative's
place to Patosi for her
intervention. Kers arrived at her home crying and scared. The
fear that he displayed was evident
to Patosi to the extent that he
stood outside the accused's shack afraid to enter when Patosi, a
lady, went to enquire from the
accused what the reasons for the
attacks were.
[39]
Unashamedly, the accused falsely claimed that even though the
complainants in Counts 2, 3 and 4 identified or pointed to him
as the
"Neville" who attacked them that there are other people by
the name of Neville in the area. In relation to Count
I it has and
will become evident that the accused was trying hopelessly to
insinuate that some other person by the name of "Neville"
may have committed the murder.
[40]
The accused had no reason to threaten and attack Kers in Counts 3 and
4 in the manner described. Similarly, I am satisfied
that the State
has proved its case in respect of counts 3 and 4 beyond a reasonable
doubt.
I
therefore find the accused guilty of assault with intent to cause
grievous bodily harm in Count 3 and of assault common in Count
4.
[41]
In as far as Count 1 of murder is concerned, although no one
witnessed the commission of the offence, the circumstances must
be
looked at holistically. Van Wyk found the accused and the deceased in
an unlit shack. The accused denied during cross-examination
that Van
Wyk found him there. He maintained that he arrived the following
morning and found the deceased dead. The explanation
proffered by the
accused on the injuries observed by Van Wyk is unintelligible.
·Through the use of his cellphone light
Van Wyk observed and
described the injuries on the deceased which were similarly described
by all the other state witnesses. The
dichotomy in the versions of
the two is that while Van Wyk maintained that the deceased implicated
the accused there and then,
in his presence, of assaulting her the
accused said that there was nothing untoward with the deceased at
that stage.
[42]
Van Wyk was concerned and offered to remove the deceased from the
accused but the latter prevented him from doing so. This
led to an
altercation between Van Wyk and the accused. Van Wyk gave up and
left. The accused concedes to an argument with Van Wyk
that night
inside the couple's shack. According to him the altercation preceded
the deceased's death and claims that it concerned
an amount of R250
which Van Wyk owed to him. This therefore places him on the scene of
crime as alleged by Van Wyk at the crucial
time.
[43]
The commonality of the evidence of Wewu, Klaaste and Kers is that
they heard the screaming from the same shack. The female
voice was
making desperate pleas not to be harmed, killed and indeed sent out
an SOS that she was being killed. Ironically, no
one else is said to
have been in the company of the accused and the deceased at the
relevant time. Fatefully, in the morning the
very same person who was
shouting for help was found dead. No one was seen entering or leaving
the accused's shack at the time
of the screaming.
[44]
The question that falls for determination is whether this
circumstantial evidence stitched together and accompanied by the
complaint to Van Wyk in the accused's presence that he assaulted her
justifies a finding of guilt on the murder charge.
[45]
Let
me
first
deal
with
the
accused's
alibi
defence.
The duty of the police to investigate an alibi
raised by a suspect is trite. See
S
v
Mlati
[1984] ZASCA 88
;
1984 (4) SA 629
(A) at 632 A - D; and 640E - I. The
investigating officer, Sgt Riet, testified to the effect that the
accused informed him that
he went to Pers Kombers Tavern whereafter
he left with a girlfriend that he had met at the tavern that evening.
He claimed to have
spent that night with her. What is
incomprehensible and seems farfetched is that the accused could not
remember nor furnish the
name of that girlfriend to the investigating
officer; neither could he remember where he spent the night with her
for the investigating
officer to confirm or disprove his alibi. The
accused's testimony also deliberately avoided naming names,
particularly of the people
with whom he interacted at the tavern, to
enable the investigating officer to confirm or shutter this defence.
Despite the fact
that he played for a soccer team in Prieska and was
known in the area, he stated that he did not remember anyone of the
people
who were at the tavern that night and he could also not
furnish the name of the tavern owner.
[46]
In
S
v
Thebus and Another
[2003] ZACC 12
;
2003
(2) SACR 319
(CC) at 353d - 354b (paras 76 - 78) the Constitutional
Court made the following remarks concerning alibi defences:
"[76]
After his arrest, the first appellant was confronted by the police
with the allegation that he had been present at the
scene of the
shooting. After having been warned of his rights he was asked by the
police, prior to his arrest, what he had to say
about these
allegations. He chose to proffer an explanation, albeit a truncated
one. His response that the family was in Hanover
Park is
hardly consistent with the alibi subsequently asserted. The
only explanation he could give was
that he was referring to his
family and not to himself. This
disingenuous explanation for the
failure to disclose the
alibi when confronted with the evidence against him can
legitimately be
taken into account in
the evaluation of the evidence. Having
regard
to the fact that a late
disclosure of an alibi carries less weight than one disclosed
timeously, the cogency
of Kiel's evidence and the unsatisfactory
nature of the first appellant's evidence, the trial Court was
entitled to reject the
evidence of the alibi, and to convict the
first appellant.
[77]
The trial Court properly convicted the first appellant on a
consideration of the totality of the evidence. The appellant's
explanation of why he chose to remain silent, the lateness of the
disclosure of his alibi defence, the unacceptable evidence which
was
tendered by two of his witnesses and the cogency of the evidence
tendered by Kiel taken together, entitled the trial Court
to return a
verdict of guilt against the first appellant.
[78]
Such is the adversarial nature of our criminal process. Once the
prosecution had produced sufficient evidence which established
a
prima facie case, the first appellant had no duty to testify.
However, once he had chosen to testify it was quite proper
to
ask him questions about his alibi defence, including his explanation
on his election to remain silent. When his evidence was
found not to
be reasonably possibly true, as did the trial Court, he ran the risk
of a conviction. Thus, absent a credible
version
from
the first
appellant, the version advanced by th
e
prosecution,
if found credible,
was
likely to
be
accepted.
In
S
v
Dlamini
and Others, Kriegler
J emphasised
the
importance
of
freedom
of
choice
in
a
democracy.
However,
liberty to
make choices brings with it
a
corresponding
responsibility
and
'ofte
n
such
choices
are
hard'.
"
[47]
The accused, to his credit, elected outright to disclose to Sgt Riet
that he was elsewhere when the deceased was assaulted
and
strangulated. However, his alibi was vague, truncated and ultimately
false. Van Wyk, an extremely credible witness, placed
him on the
scene when the deceased was already badly injured. His responses when
questioned about the alibi when he testified were
far from
satisfactory. Regard being had to
S
v
Thebus
in para 46 above, I find that the
evidence of the accused pertaining to his alibi incredible. In the
circumstances, I find that
his alibi defence is false. I will also
follow the approach in
S v Shabalala
1986
(4) SA 734
(A) at 736 C -D where the Court pronounced;
"It
was
prov
e
d beyond reasonable doubt
that the appellant's alibi was
false. The effect of the
falseness
of an alibi on an
accused's
case
is
to place him
in
a
position as
if
he
had
never testified at
all.
"
Having
rejected the alibi defence of the accused does not however bring the
matter to an end. The State still carries the onus of
proving its
case beyond reasonable doubt.
[48]
There is no direct evidence or eye-witness account in the murder
count. I have to consider all the surrounding circumstances
in order
to arrive at an irresistible finding. In
S
v
Reddy and Other
s
1996 (2) SACR 1
(A) at
8c - g Zulman AJA pronounced:
"In
assessing circumstantial evidence one needs to be careful not
to approach such evidence upon apiece-meal basis
and to subject each
individual piece of evidence to a consideration of whether it
excludes the reasonable possibility that the
explanation given by an
accused is true.
The
ev
i
dence needs to be cons
i
dered
in
i
ts totality
.
It
is only then that one can apply the oft
quoted dictum
in Rex
v Blom
1939
AD
188
at 202- 203
where
reference
is
made
to
two
cardinal rules
of logic
which
cannot
be
i
gnored
.
These
are firstly,
that
the
inference
sought
to
be drawn
must
be
cons
i
stent
with
all
the
proved
facts
and
secondly
, the proved
facts
should
be su
c
h
"
t
hat they exclude
every
reasonable inf
e
rence
from
th
e
m
save
the
one
sought
to
be
drawn
". The
matter
is well put in
th
e
following
remarks
of Davis AJA
in R
v
De
Vill
i
ers
1
944 AD
493
at50
8
/509:-
"The
Court
must not
take
each
circumstance
separately and
give
the
accused
t
he
benefit
of
any
reasonable
doubt
as
to
the
i
nference
to
be drawn from
each
one
so
taken.
It
must
carefully
weigh
the
cumulative
effect of
all
of
them
together,
and
it
is only after
it has
done so
that
the
accused
is
entitled
to
the
benefit
o
f
any
reasonable
doubt which
i
t
may have as
to whether
the inference of guilt
is the only inference
which can reasonably
be drawn.
T
o
put
the matter
in another
way,· the Crown must
satisfy the
Court,
not
that
each
separate fact
is
i
nconsistent
with
the innocence
of
the
accused,
but
that
the
evidence as
a
whole
is
beyond
reasonable
doubt
inconsistent with such
innocence.
""
[49]
Reverting to the facts before me and the circumstances surrounding
the deceased's death I infer the following incidences to
be supported
by the evidence:
49.1
The words uttered by the deceased and heard by the
witnesses Wewu
and Kers relating to the deceased imploring the
accused not to kill her and not to injure her and also that he was
injuring her
and killing her; find to be credible;
49.2
I find that the "Neville" who boasted to Wewu at the
tuck-shop that he was "Neville"
to be the same person who
chased Kers when Wewu heard Kers shouting the name "Neville"
and pleaded that he had done nothing
to him; In Hoffman and Zeffertt:
The Law of Evidence 4th Edition, the respected authors put it as
follows at p 52:
"...
Similar fact evidence, it will be seen, is only exceptionally
admissible. It will be received, exceptionally, only if
it is, first,
sufficiently relevant to warrant its reception and, secondly, if it
has a relevance other than one based solely upon
character." See
also
O
m
e
ga,
Louis
Brandt
et
Frere
SA
and
Another v African
Textile Distr
i
butors
1982 (1) SA 951
(T).
49.3
I find as a fact that Van Wyk placed the accused on the crime scene
the night of
the incident and discovered some injuries were already
inflicted to the deceased's face and that she was bleeding from the
mouth;
49.4
I am satisfied that Kers placed the deceased at Plakkerskamp around
05h00 in the
morning and thus refuting his claim that he was not at
Plakkerskamp between 22h00 and 06hl 0 the following morning;
49.5
I find that the accused's alibi defence was manifestly fabricated;
49.6
It is clear that the accused's attack on the innocent victims who had
not provoked
him or given him any justification for the attacks on
them shows that he was spoiling for a fight, any fight with
whomsoever;
49.7
There is no evidence of the presence of any other person in the shack
at the time when
Van Wyk observed the injuries on the deceased except
for the couple.
49.8
The accused did not deny the assault when the deceased made the
report to Van Wyk that he had
assaulted her. He just walked towards
the bed and sat next to her.
49.9
The accused prevented Van Wyk from rescuing the badly injured
deceased from him or seeking
help for her; and
49.10
The accused fled from the house and left the deceased to her own
fate. He did not summon any medical help and instead
raised a false
alibi.
[50]
In my view the accused was on a mission to indiscriminately terrorise
members of the Plakkerskamp community and that the deceased,
Wewu and
Kers were his easy prey. He was the Goliath of Plakkerskamp. It was
very unfortunate and disheartening that this act of
terror took the
deceased's life in such an inhumane manner.
[51]
In
Direct
o
r
of
Pub
li
c Prosecut
i
ons,
Gauteng
v
Pistorius
2016 (2) SA 317
(SCA) at 326H para 26 Leach JA explained that in the
case of murder, a person acts with
dolus
directus
if he or she committed the offence with the object and purpose of
killing the deceased. In
Rex
v
Ngcobo
1921 AD 94
Innes CJ stated:
"The
law presumes
murder from the
fact
of
killing.
There can
be
no doubt
that
the appellant
killed
the deceased
and
that
the
killing
was unlawful.
..
.
An
intention to
kill is an essential element in murde
r
;
but its existence
may
be
i
nferred
from the
relevant
c
i
rcumstances.
"
[52]
I am satisfied that the accused acted with the sole intention of
killing the deceased. The act of asphyxiation coupled with
the
excessive force exerted on the deceased's body which caused the
multiple injuries sustained was without doubt an indication
of a
clear direct intent to kill. The deceased's death was therefore also
premeditated. As Holmes JA emphasised in
S
v
S
i
gwahla
1967 (4) SA 566
(A) at
570C -E:
"The
distinction
must
be observed
between
what actually
went on
in
the
mind
of
the
accused
and
what
would
have
gone on
in
the
mind
of
a
[reasonable person] in
the position
o
f
the
accused.
In
other
words,
the distinction between subjective
fores
i
ght and objective
foreseeability
must
not become blurred.
"
[53]
I am satisfied that the State proved its case beyond a reasonable
doubt in respect of all four counts and reject the version
of the
accused
in tot
o.
I therefore find that the
accused is guilty as follows:
1.
Count 1: The accused is found guilty of the
premeditated Murder of
the deceased, Nancy Jas, with the direct intent to cause her death;
2.
Count 2: Guilty of assault common;
3.
Count 3: Guilty of assault with intent
to cause grievous bodily harm;
4.
Count 4: Guilty of assault common.
________________________
MAMOSEBO
J
NORTHERN
CAPE HIGH COURT
For
the State:
Adv K Kgatwe
Instructed
by:
Office of the DPP
For
the accused:
Adv MMaphalla
Instructed
by:
Justice Centre
Kimberley