About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 1074
|
|
S v De Beer (CC139/2012) [2014] ZAGPPHC 1074 (12 March 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION. PRETORIA
(FUNCTIONING
AS MPUMALANGA DIVISION) MIDDELBURG
CASE
NO
: CC139-2012
DATE
:
2014-03-12
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between
THE
STATE
and
E
C DE
BEER Accused
JUDGMENT
MAKGOKA
J
:
The
accused, Mr Edward Charles De Beer stands trial on four counts,
namely, robbery with aggravating circumstances, as defined in
s 1 of
Act 51 of 1977 (CPA), read with the provisions of s 51 (1) of the
Criminal Law Amendment Act 105 of 1997 (count 1); murder
read with
the provisions of s 51(1) of Act 105 of 1997 (count 2); theft (count
3); defeating or obstructing the administration
of justice (count 4).
In count 1, the State alleges that on 12 February 2012 in Witbank the
accused robbed Mr Mpumelelo Peter Mabuza
(the deceased) of his motor
vehicle, namely a Toyota Tazz with registration number: SJW007GP. It
is alleged that a knife was used
in the commission of the offence,
and that grievously bodily harm was inflicted, and the vehicle was
robbed under those circumstances.
With
regard to count 2, it is alleged that the accused murdered the
deceased after robbing him of his vehicle. In count 3, it is
alleged
that on the same day, 12 February 2012 the accused stole certain
items belonging to Mr Werner Taute, namely a curtain,
a blanket and a
DVD player screen. In count 4, it is alleged that the accused
disposed of or hid the body of the deceased by throwing
it in the
bushes in order to frustrate the investigations into the death of the
deceased.
The
accused pleaded not guilty to counts 1 and 2, that is, robbery and
murder, and pleaded guilty to counts 3 and 4. The State accepted
the
pleas of guilty in counts 3 and 4, and having been satisfied that the
accused intended to plead guilty in those counts, and
him having
admitted all the material elements of the respective crimes, I
accordingly find the accused guilty of theft, and defeating
the
administration of justice.
With
regard to count 1 (robbery) the accused's defence is a bare denial.
In count 2, murder, the accused pleaded self-defence. The
accused
also made certain formal admissions, in terms of Section 220, of the
CPA. They are contained in EXHIBIT A, and they read
as follows:
1.
"That the deceased is the person mentioned in count
2 of the indictment, to wit, Mpumelelo Peter Mabuza.
2.
That the deceased died on 12 February 2012 as a result
of suffocation, and stab wound injuries that he sustained on the same
day.
3.
That the deceased did not sustained any further injuries
from the time he was injured by the accused, up to the time when the
post-mortem
was conducted on the deceased.
4.
That the authenticity and the correctness of the
contents of the following documents are not in dispute. The documents
are handed
in by agreement, as exhibits.
4.1
EXHIBIT B: Notes on the pointing out of a scene pointed
out by the accused to Lieutenant Colonel Ekabata Moses Maepa, except
paragraph
23 of the notes of pointing out, which I will deal with
later.
4.2
EXHIBIT C: Photograph album of the pointing out,
compiled by Lieutenant Kernel E S Gaiter.
4.3
EXHIBIT D: Admission statement made by the accused, to
the Senior Magistrate Witbank, Mr H P Ferreira.
4.4
EXHIBIT E: Photograph album compiled by Warrant Officer
T Vermaak, depicting the house where the deceased was killed as well
as
exhibits that were lifted from the scene.
4.5
EXHIBIT F: Photograph album, compiled by Constable R T M
Hlongwane, depicting the scene in Lydenburg where the body of the
deceased
was found.
5.
The accused admits that on 12 February 2012, and at or
near Theos Cheas Complex, in the district of Witbank, he did
unlawfully and
intentionally steal the following items to wit, a DVD
player screen, the property of Taute Werner.
6.
The accused admits that on 12 February 2012, at or near
Pollo Spruit Bridge in the district of Lydenburg, whilst aware that
the
body of the deceased was wanted, and whereas to the knowledge of
the accused, the above mentioned body was to be used as evidence
in
the criminal investigations, the accused did unlawfully and with the
intention to defeat the administration of justice, thereby
disposing
and or hiding the body of the deceased, by throwing it into the
bushes."
The
section 220 statement was signed by the accused and confirmed by his
legal representative. During the cause of the trial, further
admissions in terms of section 220 were made. They are contained in
EXHIBIT G. And they read as follows:
"I
the undersigned Edward Charles De Beer make the following admissions
free and voluntarily.
1.
I admit that I was arrested on 14 February 2012 at
Phalaborwa, whilst in possession of a white Toyota Tazz with
registration number:
SJW007GP, the property of the deceased.
2.
I admit that the body depicted in EXHIBIT F is the same
body I dumped in the field."
The
post-mortem report identified the deceased cause of death as
suffocating, after stabbing into left chest. The chief post-mortem
findings were recorded as follows:
"Decomposed
body of black adult male. Black adult male with white plastic bag
over head and face. Fractures both firms. Stab
wound, chest left side
through forth rib into left lung, and into heart.
I
will later deal with the admissibility of the post-mortem report. The
State called four witnesses, and the State also made an
application
for the admission of the post-mortem report, in terms of Section 3 of
the Law Evidence Amendment Act 45 of 1988, which
application I
granted. I indicated that the reasons for that ruling would form part
of this judgment.
Before
I deal with that, I go straight the evidence. As indicated the State
called four witnesses, namely Mr Werner Taute, Mr Lucas
Peters Daniel
Coertzer, Ms Lena Nonhlanhla Mnguni and Lieutenant-Colonel Lekabata
Moses Maepa. Mr Taute is, or was, the boyfriend
of the accused's
sister.
During
December 2011, the accused came to spend time with Mr Taute at his
home in Witbank. During February he, Mr Taute, had to
go see his
parents in Standerton. On the day of the incident, 12 February 2012,
he left the deceased at his house, with the understanding
that the
deceased was later going to depart for his parental home in
Phalaborwa.
Before
he left he arranged for a taxi cab to ferry the accused to a point
where he would catch his transport to Phalaborwa. It is
not necessary
to relate all his evidence. But the essence thereof is that on his
return to his house a few days later he found,
in the spare bedroom,
a dishwashing soap on top of a bunker bed.
Upon
further investigation, he noticed that there were blood spatters in
the bedroom, which apparently had been cleaned. But on
closer
examination, one could see those with a naked eye. He was with his
mother, who later also witnessed what he had seen. At
some stage he
lifted the mattress and noted that there was a big blood stain on the
mattress. In the kitchen there was a big knife
which had been bent.
He also later noticed that his vehicle DVD player was missing. He
testified that when the accused visited
him, he only had a big bag
full of clothes, and nothing more than that. He did not phone the
accused when he found the state of
affairs at his house like that,
because the accused did not have a cell phone.
Mr
Lucas Peters Daniel Coertzer is the accused's friend. He lives in
Phalaborwa. He testified that at that stage they were good
friends
with the accused. He had known the accused for about 5 months. On 13
February 2012 while he was at his house, the accused
arrived at
approximately 03:00 in the morning. He was driving a white Toyota
Tazz, which he told him that he had bought for R13
000-00.
The
accused spent the night at his place, and when he asked him about the
vehicle papers, the accused said to him he did not have
the vehicle
papers, yet. The accused left at around 04:00 a.m. for his parental
house. On 16 February 2012, the accused approached
him at his
work-place and told him that he had "more than one problem"
concerning the Tazz.
He
conveyed to him that he did not know what to do, as he had killed a
person, and he showed him a knife that was allegedly used.
He
explained to him that there had been a quarrel between him and the
deceased, as a result of which, there was a fight and he
killed he
deceased under those circumstances.
He
gave him the knife, for safekeeping. But after learning what had
happened, he took the knife to the police. He had only kept
it for a
day. The knife was the folding type, and he noticed either blood or
rust on it. As to the disposal of the deceased's body,
the accused
told him that he hid the body in the boot, wrapped in a blanket and
he dumped it between Lydenburg and Orgistad near
a bridge in the
bush. Around 17 or 18 February he saw the white Tazz that the accused
had driven, at the Phalaborwa Police Station.
When the accused told
him about the dumping of the body, he looked shocked, but he was in
his sober senses.
Ms
Mnguni testified that the deceased was conducting a business of a
maxi cab. On 12 February 2012 she was in the company of Ms
Simphiwe
Moye and the deceased. The latter had come to fetch them from Rhino
Ridge in Witbank. It was said around 15:30. He was
to ferry them to
their house in Extension 14. While driving home, the deceased
received a telephone call, after which he informed
them that there
was a client who needed transport from the nearby townhouses. They
proceeded to that place, which happened to be
Mr Taute's house.
Upon
arrival at the house of Mr Taute, the deceased parked the vehicle
near the house and hooted. She saw a person (a white male)
opening
the garage door, and the deceased left them in the vehicle, and went
to speak to that person. It is common cause that this
person is the
accused. She could not hear the content of the conversation between
them, but it took about 10 minutes.
After
that the deceased returned to the vehicle, and told them that he must
hurry up to take them home, so that he could return
to fetch the
accused. They asked him why he did not just there and there load the
accused and make one trip. The deceased indicated
to them that the
accused had a lot of things to be loaded, and he therefore needed
more space. Ms Mnguni also testified that he
could not see the
accused's face when he opened the garage, because just when he opened
the garage door he quickly half-closed
it. And the deceased was
inside the garage when they had a conversation, and because the
garage was half-closed, she could only
see the lower parts of their
torsos.
Lieutenant-Colonel
Maepa testified with regard to the pointing out that the accused had
made. Nothing turned on the evidence of
Lieutenant Colonel Maepa,
except for paragraph 23 of the pointing out notes, in which the
accused would have said:
"I
murdered the deceased."
I
say nothing turns on that evidence, because that distinction is only
relevant for legal purposes, as to what in fact the accused
would
have conveyed, or wanted to convey about the word 'murder.' But as it
turned out, there was no suggestion that the word murder
was not used
- only the context and the meaning to be attached to that word.
After
the evidence of Lieutenant-Colonel Maepa, the State conveyed to court
and it was common cause, that the doctor who conducted
the post-
mortem examination had in the meantime died. Therefore the State
wished to introduce the post-mortem report, and the
defence objected
to that.
The
State applied for the report to be admitted as I indicated, in terms
of
Section 3
of the
Law of Evidence Amendment Act 45 of 1988
. I ruled
at that stage, after hearing argument, that the post-mortem was
admissible. As I indicated I undertook to furnish reasons
for that
ruling, as part of this judgment. I do so now. Section 3 of the Law
Evidence Amendment Act 45 of 1988 reads as follows:
"[Indistinct]
1 Subject to the provisions of any other law hearsay evidence shall
not be admitted as evidence at criminal or
civil proceedings, unless:
(a)
Each party against whom the evidence is to be adduced
agrees to the admission thereof as evidence, as such proceedings.
(b)
The person upon whose credibility, the probative value
of such evidence depends, himself testifies at such proceedings or
(c)
The court having regard to:
i.
The
nature of the proceedings.
ii.
The
nature of the evidence.
iii.
The
purpose for which the evidence is tendered.
iv.
The
probative value of the evidence.
v.
The reason why the
evidence is not given by the person, upon whose credibility the
probative value of such evidence depends.
iv.
Any
prejudice to a party with the admission of such evidence might
entail.
v.
Any
other factor which should in the opinion of the court be taken into
account, is of the opinion that such evidence should be
admitted in
the interest of justice."
As
in many instances, the contestation revolved around the prejudice
that would be suffered by the accused in the event the statement
or
the report is admitted without evidence, as the accused would under
those circumstances, not have the opportunity to cross-examine
the
author of the report. But I also take into account the nature of the
evidence, from what I have said it is clear why the evidence,
why the
doctor who performed the post-mortem report, cannot testify. He is
dead.
The
nature of the evidence is not factual. And to a great extent, the
contents of the report is in line with the accused's own version,
because the his version is that he stabbed the deceased. The findings
of the doctor also confirmed that the deceased was stabbed,
albeit on
a different part of the body. It should be recalled that the clinical
findings, amongst others, indicated that the deceased
body was found
with a plastic bag wrapped around his head and face.
And
as it will later turn out, this is also in line with the accused's
own version. As a result I formed a view that there is not
much
prejudice that
could be suffered by the accused, if the
statement was to be admitted. On the other hand the State would have
suffered much prejudice,
and it would not be in the interests of
justice, for the statement not to be admitted under the
circumstances.
I
am quite aware of the trite principle that a court should hesitate
long to admit hearsay evidence, where the hearsay evidence
is crucial
or key to the guilt, or otherwise of the accused. In the present
matter it is my view that this report is not crucial
for that
purpose. It simply corroborates, to a great extent, the accused own
version. It is only as to what weight to be attached,
or what
emphasis should be placed on the statement. And for those reasons I
came to the conclusion that the statement should be
admitted. That
concluded the state's case.
The
accused took the stand in his own defence. He testified that on 12
February 2012 Mr Taute left him at his house, as he was going
away
for a few days, to spend time with his parents in Standerton. He
confirmed Mr Taute's evidence as to how he came to reside
at his
place for a while.
Mr
Taute had indicated to him the previous day, the 11 February 2012, of
his intention to spend time in Standerton, and he then
intended, that
is the accused, to move out and go back to his parental house, in
Phalaborwa. On the 1ih before Mr Taute left, he
requested him to
phone a person who owned a taxi to give him lift. It is common cause
that that person would be the deceased.
After
some time of Mr Taute having left, the deceased arrived at Mr Taute's
house. He came into the house and he requested the deceased
to convey
him to the Middelburg highway, where he would hitchhike for
Phalaborwa. He conveyed to the deceased that he did not have
money to pay him, and the deceased indicated to him that it was fine,
and he would assist him. This is the first encounter that Ms Mnguni
had testified about.
The
deceased asked him how much luggage he had. He took him (the
deceased) to the room where his luggage was. And the deceased told
him that as he had passengers in the vehicle, also with luggage he
would rather return, or rather drop the ladies at home, and
return to
collect him and drop him at the destination he was heading to.
He
had a big black suit case and two black bags, and a painting. Later
the deceased returned alone, and once he was in the house
he asked
him, that is the deceased, asked the accused as to whose TV it was
which was in the house. He told the deceased that the
TV belonged to
the owner of the house. The deceased suggested that instead, he
should get the TV in lieu of the payment, for conveying
him to his
destination.
The
accused told the deceased that he could not give him the TV, as it
was not his. The deceased kept on insisting that he wanted
the TV. At
some stage the accused left, and went to the spare bedroom, where his
luggage was. The deceased followed him into the
bedroom, and then an
argument ensued about the TV.
The
deceased pushed him, and he pushed him back. The deceased took out a
knife and charged at him with that knife, and he ducked.
He also had
a knife with him, and he took out his knife from his back pocket, and
stabbed the deceased on the head and the deceased
fell. He stood up,
but fell again. He left the bedroom and sat in the lounge as he was
shocked, and did not know what to do.
When
he left the spare bedroom, the deceased was lying motionless on the
floor. He sat in the lounge for a while and took out the
knife which
he had used to stab the deceased, and put it on the table and went
back to the bedroom, where he found the deceased
still motionless,
and he thought he was dead. He was scared, and did not know what to
do. There was a pool of blood.
And
all what was on his mind was that he was going to jail, and as a
result he decided to dispose of everything. He covered the
deceased
with sheets, and put him on a blanket and dragged him to his vehicle,
that is, the deceased vehicle, as he was too heavy.
When he reached
the vehicle, he struggled for about 15 to 20 minutes to get him into
the boot of the vehicle.
The
reason he struggled that long, was that he was born with a spasm in
his right arm, so he did not have much power or strength
in that arm.
After he had put him in the vehicle, he went back to the bedroom and
started cleaning the blood which was there. He
took out everything
that could serve as an exhibit in that room and put them in plastic
bags. That included the knife that had
been produced by the deceased.
After
he had finished cleaning, he put everything into three plastic bags.
Not knowing what to do he drove to town in Witbank, where
he sold the
DVD monitor, the property of Mr Taute, to a taxi driver for R300-00.
He used that money to fill up fuel in the deceased's
vehicle, and
drove towards Lydenburg.
On
his way, about 8 to 9 kilometres before Lydenburg, at a place called
Old Bridge, along the gravel road, he turned into that gravel
road
and took out the deceased body. There also it took him about 10 to 15
minutes
to get the deceased body out. This was between
Ohrigstad and Phalaborwa, along a mountainous area. He also threw
away the three
bags, containing the cloths and the knife - that which
he called 'the exhibits'. He arrived at Phalaborwa at 03:00 in the
morning,
and went to spend the morning there at Mr Coetzer's house.
Mr Coetzer asked him about the vehicle, and he told him that he had
bought it. He did not want to reveal to him the truth of what had
happened. At about 07:00 in the morning, he went to his parental
house, where his parents also asked him where he got the vehicle
from.
He
conveyed to them the same version that he had conveyed to Mr Coetzer.
He thereafter went back to Mr Coetzer's house, but did
not find him
as he was already at work. On 14 February 2012 he went to Mr
Coetzer's workplace and as a close friend of him, he
wanted to
confide in him has to what has happened, because he trusted him.
After speaking to Mr Coetzer, he left for town, still
driving in the
deceased vehicle. He did not know what to do with the vehicle. He
wanted to get rid of the vehicle.
He
sat in the vehicle, again not knowing what to do, and two men
approached him and it later transpired that they were from Netstar,
a
tracking company. They informed him that the vehicle had been
reported stolen. He left with them, and he was later arrested for
theft of the motor vehicle. He spent the night in custody, and
released the following day on R2000-00 bail.
He
was later arrested for the murder of the deceased, and he has been in
custody since then. On the day of his arrest he said nothing
about
the murder, and later he made a statement to a Magistrate and also
did the pointing out. In the statement to the Magistrate
he repeated
the same
version that he had conveyed to both Mr Coetzer and
his parents, that he had bought the vehicle. He was adamant that he
had stabbed
the deceased on the back of his head. During
cross-examination he persisted with that version, but testified that
he was not sure
where he stabbed the deceased because everything
happened in split seconds. He testified that when the deceased
charged at him,
and tried to stab him with a knife, he ducked by
going down, and when he rose he stabbed the deceased. He confirmed
that the deceased
was much taller than him, and it appears to be
common cause that the deceased was approximately 1.8 meters tall.
He
confirmed that he produced the knife from his back pocket. It is what
he called a
knip
knife,
which can fold. He confirmed also that when he stabbed the deceased,
they were standing face to face, half a meter apart.
As to why he put
a plastic bag over the deceased's head, he explained that it was to
stop the blood from flowing from the head.
He
persisted with his version that up until the time he was arrested, he
did not know what to do with the vehicle, and he denied
any
pre-planning or premeditation to kill the deceased for his vehicle.
Asked why he did not flee, after he had ducked the first
blow, he
testified that he was confused as it was the first time that he had
been in that situation. He was unable to explain
the presence
of the big blood stain that had been observed by Mr Taute, on the
mattress.
That
briefly is the evidence before court. It is on this evidence that I
must determine whether the State has succeeded in discharging
the
onus which rests on it. That onus is proof beyond reasonable doubt.
The
accused has no onus to prove his innocence. All what he has to do,
and what is expected of him, is to place a version before
court,
which, when viewed within the totality of the evidence, is reasonably
possibly true. It that is the case, the accused is
entitled to be
acquitted.
Having
said that, the notion that an accused may be acquitted, even if the
prosecution's case is completely acceptable and unshaken,
developed
in cases like S
v Kubeka
1982
(1) SA 534
(W) and S
v Monyai
1986
(4) SA 712
(V), was rejected in S
v Van der
Meyden
1999 (1) SACR 447
0JV). There, Nugent
J observed that:
"It
is wrong to separate the evidence into compartments, and to examine
the t defence's case in isolation, and hold that because
it is not
internally inconsistent and improbable when taken discretely, that
the accused is entitled to be acquitted, despite the
fact that the
State's case has not been rejected."
The
conclusion whether to convict or acquit, depends on the totality of
the evidence, it must account for all of it. The Supreme
Court of
Appeal in S
v Van
Aswegen
2001 (2) SACR 97
(SCA) approved of these observations. As explained
in S
v Chabalala
2003
(1) SACR 134
, para 15:
"The
correct approach is to weigh up all 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 weigh so heavily in
favour of
the State, as to exclude any reasonable doubt, about the
accused's guilt."
In
the present case, most aspects are common cause. The narrow and crisp
issue that the court has to decide is which version between
that of
the State and the accused are accosts more with probabilities. Put
differently, which version is supported by the established
and
objective facts? The state's case against the accused is simply this.
The
accused lured the deceased to Mr Taute's place, in order to murder
him and rob him of his vehicle. Given the fact that the accused
has
admitted to stabbing the deceased, he has to explain the
circumstances under which that happened. This is not to mean the onus
which rests on the state throughout, shifts to the accused.
It
simply means that the state has made out a
prima
facie
case against the accused, which he must
rebut with an explanation. The accused's version was that there was a
fight between him
and the deceased, during which, in an act of
self-defence, he stabbed and killed the deceased.
It
is this version that I must consider against the probabilities and
the objective facts. In this regard the following must be
borne in
mind:
a.
That the deceased was a business man conducting a
business as Maxi taxi.
b.
The deceased and the accused did not have any
relationship, whatsoever. They only had one brief encounter before
the incident on
the
occasion that the deceased transported the accused. As a result there
was no special relationship between the deceased and the
accused.
From
the above one should ask the following pertinent question, as to why
would the deceased, having been informed that the accused
did not
have money to pay him, agree to take all the trouble to ferry the
accused for over 10 kilometres? This is unexplained,
and it is
improbable. The probability is that had the accused indicated to the
deceased that he did not have the money to pay him,
the deceased,
being a businessman, have said "thank you Sir. You have wasted
my time. I have more business to do."
As
I indicated they had no friendship, nor any special relationship. It
is highly improbable that the deceased would have agreed
to spend his
petrol to ferry Ms Mnguni and her friend, to their home, return to
the house of Mr Taute to fetch the accused, and
drive him about 10
kilometres, to where he would have hitchhiked to Phalaborwa. He would
not have done that for nothing. I also
bear in mind that the accused,
on his own version, did not have money to travel to Phalaborwa. He
had to make a plan
And
that plan it all appears to have been to get some money somehow, to
arrive to Phalaborwa. Because even if I accept his version
that the
deceased was going to drop him at the Middelburg highway where he
would have hitchhiked, how was he going to pay whoever
was going to
ferry him to Phalaborwa?
I
accept the evidence of Ms Mnguni that when they arrived at Mr Taute's
place, the accused's conduct suggested that he did not want
to be
seen,
in that the garage door was only half-opened. And that was once the
accused noticed that the deceased was in the company of
other people.
Another improbable feature of the accused's version is how he would
have stabbed the deceased at the back of his
head. He had
considerable difficulty in explaining, and demonstrating, during
cross-examination, how he physically could achieve
that. As
indicated, the deceased was 1.8 meters tall and the accused is much
shorter than that, from the court's own observation.
It should also
be borne in mind that, and it is common cause, that the accused
placed a plastic bag around the head of the deceased.
His
explanation was that he wanted to stop the blood flowing from the
head. There are two difficulties with this explanation. First,
the
post- mortem report does not indicate any injury to the deceased's
head - only a stab wound to the chest. Second one does not
stop the
blood by using a plastic bag. At his disposal, were a number of
things that were suitable for that purpose, and on his
own version,
there were a number of cloths around the house.
So
he could have used anyone of those to stop the blood. The only
conclusion from the conduct of the accused on this aspect is that
he
wanted to make sure that the deceased was dead. Furthermore the
conduct of the accused after he had stabbed the deceased must
be
scrutinized. He loaded the deceased's body in the vehicle, and drove
to town to sell Mr Taute's DVD monitor to get money for
petrol.
Along
the way to Phalaborwa, he disposed of what he called exhibits- the
body and three plastic bags contained the deceased's alleged
knife
and blood-stained cloths. But he did not dispose of the vehicle
and the knife which he had used to stab the deceased.
And
the questions is, why dispose of a knife that was not used at all,
and keep the one that was used if he had in mind to dispose
of the
exhibits? The real exhibit would have been the knife that was used to
kill, to stab the deceased. I also agree with the
State advocate's
contention that he had all the opportunity to dispose of the vehicle.
If his version is to be accepted, that he
did not know what to do
with the vehicle, amongst others, I agree with Mr
Moeatesi,
that it was one of those easiest things to
dispose of. He could have left it during the night and went to Mr
Coetzer's house without
alerting him of the vehicle, or on the days
that followed his arrival in Phalaborwa.
He
could have left it anywhere. On the day he was arrested he was still
driving the vehicle. He could have left it at a parking
lot at the
shopping mall. He persisted with a false version, both to Mr Coetzer
and to his parents and later to the Magistrate,
that he had bought
the vehicle. And the circumstances under which the vehicle was found,
are also important. It is not because
of his benevolence that the
vehicle was found.
It
was because the vehicle had been fitted with a tracking device and he
was caught literally, red-handed. It is very probable,
and I agree
with the State advocate, that the probabilities are that had he not
been caught on that day he would have continued
to use the deceased
vehicle.
As
to the accused as a witness, he did not impress me as an honest
witness. He struggled to answer simple and straight-forward questions
in
cross-examination. Either he could not remember pertinent
details, or adjusted his evidence.
I
have already pointed out some of the inherent improbabilities in his
evidence. I also had a closer and careful look at the accused
in the
witness box during cross-examination, and I observed a marked
deterioration in his demeanour, during which he became irritable
and
unnecessarily defensive. Lastly the accused's version is not
supported by the objective facts, in particular the finding of
the
post-mortem report. His version that he has stabbed the deceased on
the head, is not borne out by that report. The report,
on the
contrary, supports the state's version that the accused deliberately
killed the deceased. I indicated also the in this regard
the placing
of the plastic bag around the deceased's head.
The
motive is clear for killing the deceased. I have already alluded to
that part, as been the desire to rob the deceased of his
vehicle. In
my view therefore, the state's case, viewed against the accused's
version, especially the conduct of the accused after
stabbing the
deceased, excludes any other reasonable inference other than the
guilt on the part of the accused.
The
inference accords with all proved and all common cause facts, and the
evidence against the accused is strong and it is my view
that the
state has established the guilt of the accused beyond reasonable
doubt. The sum total of all this is that the accused
version cannot
be reasonably possibly true, and it stands to be rejected as been
false.
In
particular I find that there was no fight between the deceased and
the accused as he testified. He lured him to Mr Taute's house
in
order to kill
him and rob him of his vehicle. Given this
finding, it is not necessary, and indeed procedurally untenable, to
consider whether
the accused had acted in self-defence. The above
findings inherently exclude such a possibility.
It
follows that the State has succeeded in proving the guilt of the
accused beyond reasonable doubt. The nature of this onus on
the state
is explained in
S v Ntshele
1998
(2) SACR 178
(SCA), where the Supreme Court of Appeal, per Eksteen J
A said the following:
"Die
bewyslas wat in 'n strafsaak op die Staal rus, is om die skuld van
die aangeklaagde bo redelike twyfel te bewys, nie bo
elke sweempie
van twyfel nie."
In Miller v of Minister
of Pensions
[1947 (2) ALL ER 372
or 373 H
stel Denning R soos hy toe was, soos volg: "It need not read
certainty, but it must carry a high degree of probability.
Proof
beyond reasonable doubt does not mean prove beyond a shadow of doubt.
The law would fail to protect the community, if it
admitted fanciful
possibilities, to deflect the cause of justice.
If
the evidence is so strong against a man, as to leave only a remote
possibility in his favour, which can be
dismissed with a sentence 'of course it is
possible, but not in the least probable' the case is proved beyond
reasonable doubt.
In
R v De Villiers
1944
(AD) 493 at 508 to 509, the following was said:
"The
court must not take each circumstance separately and give the accused
the benefit of any reasonable doubt as to the inference
to be drawn
from each one to be taken. It must carefully weigh the cumulative
effect of all of them together.
And
it is only after it had done so, that the accused is entitled to the
benefit of any reasonable doubt, which it may have, as
to whether the
inference of guilt is the only inference which can reasonably been
drawn.
To
put the matter in another way, the crown must satisfy the court, not
that each separate fact is inconsistent with the innocence
of the
accused, but that the evidence as a whole is beyond reasonable doubt,
inconsistent with such innocence."
The
court also referred to the remarks, in amongst others,
S
versus Clegg
1973 (1) SA 34
(A) at 38 that:
"In
considering the effect of evidence, one need not be concerned with
remote and fantastic possibilities. And that it is not
incumbent upon
the State to eliminate every considerable possibility that may depend
on 'pure speculation."'
To
sum up. The killing of the deceased was premeditated. The accused is
also guilty of robbery with aggravating circumstances.
In
the result, the verdict against you, Mr Edward Charles de Beer is:
Count
1
: Robbery with aggravating circumstances,
you are found guilty.
Count
2:
Murder of Mr Mpumelelo Peter Mabuza you
are found guilty.
Count
3:
Theft, you are found guilty as per your
plea of guilty.
Count
4
: Defeating or obstructing the cause of
justice, you are found guilty as per your plea of guilty.
GAUTENG
DIVISION. PRETORIA (Functioning as MPUMALANGA DIVISION MIDDELBURG
CASE
NO: CC139-2012
DATE:
2014-06-27
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between
THE
STATE
and
E
C DE BEER
SENTENCE
MAKGOKA
J:
The accused Mr Edward Charles de Beer has
been convicted of 4 counts, namely, robbery with aggravating
circumstances (count 1);
murder (count 2); theft (count 3); and
defeating or obstructing the administration of justice (count 4).
It
is now up to the court to determine the appropriate sentence for the
accused. In considering sentence, the traditional triad
of factors
must be taken into consideration, namely the nature of the offences,
the personal circumstances of the accused and the
interests of the
society. See in this regard
S v Zinn
1969
(2) SA 537
(SA). With regard to the
nature of the offences, all are very serious
indeed, especially robbery and murder.
The
interests of society dictate that those convicted of serious crimes
are adequately punished. As to the personal circumstances
of the
accused, those are contained in a pre-sentencing report prepared by a
probation officer, which was handed in by agreement.
From
the report the following personal circumstances of the accused can be
gleaned. The accused was born on 5 September 1992. He
was therefore
19 years old when the offences were committed on 12 February 2012. He
is the last of the four children in his family.
His
childhood was characterized by constant relocation from one place to
another, due to his father's employment. This had a negative
impact
on the accused's schooling as he was not able to adapt to changing
circumstances and environments. He was born with a partially
paralysed right side.
He
dropped out of school in Grade 6, reportedly due to, amongst others,
bullying. He is not married, although he was in an intimate
relationship before he was arrested. He was not employed at the time
of his arrest, save for odd jobs. He has no children.
The
circumstances of the robbery and the murder bring the sentence within
the purview of
s 51
(1) of the
Criminal Law Amendment Act 105 of
1997
, in terms of which 15 years' imprisonment and life imprisonment
are prescribed for the offences, respectively. At the commencement
of
the trial, despite that the accused is legally represented, I drew
the attention of the accused to these prescribed
sentences. These are, of course, prescribed
sentences and not mandatory sentences, in that the court is entitled
to deviate from
them, and impose lesser sentences if it finds to
exist, substantial and compelling circumstances. Counsel for the
accused, Ms
Frazer
urged
me to find substantial and compelling circumstances in the cumulative
effect of the following factors:
(a)
the youthfulness of he accused;
(b)
the accused poor socio-economic background;
(c)
the conduct of the accused after his arrest;
(d)
the prospects of rehabilitation;
I
will deal in turn with each of these factors to make a determination
as to whether substantial and compelling circumstances exist,
for
this court to deviate from the prescribed sentences.
Regarding
the age of the accused, this is perhaps one factor that deserves
attention in some detail. There can be no question that
at the best
of times, the sentencing of a youthful offender is never an easy
task. It is far more complex than sentencing an adult
offender. See
in this regard
S v Ruiters en 'n Ander; S v Beyers en Andere; S v
Louw en 'n Ander
1975 (3) SA 526
(C) at 531 E - F;
Director of
Public Prosecutions
20
(KZD) v
P
2006 (1) SACR 243
(SCA) para 12;
Terblanche
The Guide To Sentencing in South
Africa ,
2"d ed, p 315. As explained by
the Supreme Court of Appeal in
S v Matyityi
2011 (1) SACR 40
SCA para 14:
"A
teenager is
prima facie
to
be regarded as immature, and in that the youthfulness of an offender
will invariably be a mitigating factor, unless it appears
that the
viciousness of his or her deeds, rule out immaturity. Although the
exact extent of the mitigation will depend on all of
the
circumstances of the case, in general the court will not punish an
immature young person, as severely as it would an adult.
It
is well established that the younger the offender, the clearer the
evidence needs to be about his or her background, education,
level of
intelligence and mental capacity, in order to enable a court to
determine the level of maturity, and therefore moral blameworthiness.
The question in the final analysis is whether the offender's
immaturity, lack of experience, indiscretion and such ability to be
influenced by others, reduces his blameworthiness."
(Footnotes
have been omitted.)
With
regards to the sentencing of youthful offenders, in the context of
the prescribed sentences and in particular whether substantial
and
compelling circumstances are present, it was pointed out in
S
v Mabuza
2009 (2) SACR 417
(SCA) at para 23
that the legislator had clearly intended that youthfulness is no
longer to be regarded as
per se,
a
mitigating factor.
The
position is therefore that, youthfulness is no longer
per
se
a substantial and compelling factor,
justifying a departure from the prescribed sentence. However it often
will be, particularly
when other factors are present. The court
cannot therefore lawfully discharge its sentencing function by
disregarding the youthfulness
of an offender in deciding on an
appropriate sentence, especially when imposing a sentence of life
imprisonment. For in doing so,
it would deny the youthful offender
the human dignity to be considered capable of redemption. It bears
repetition that when considering
youthfulness as a factor influencing
sentence, it is not done in the abstract.
The
blameworthiness of the offender is what is at issue. The main
question is whether the offender's immaturity, lack of experience
and
discretion and the likelihood of being influenced by others, reduces
his blameworthiness.
See
S v Booi
1996 (2) SA
580
(A) at 585 A - B. The case of
S v Bosman
1990 (1) SACR 306
(A) bears some resemblance
to the present case. The facts appear at 308 A to C.
"Op
Saterdag 26 September 1987 het hy [die appellant] met die gesteelde
geweer in 'n drasak versteek, voetgeslaan na Saldanha.
Langs die pad
het Mnr !sack Coetzee horn opgelaai.
Nadal
hulle 'n ent gery het, het hy die geweer te voorskyn gebring en Mnr
Coetzee gedwing om te draai en met die grondpad na Kersefontein
af te
draai. Langs die grondpad het hy Coetzee eers uit die motor en toe te
voe! na die Bergrivier gedwing.
Daar
het hy horn doodgeskiet, die lyk in die rivier gegooi, en met Coetzee
se motor, waarin laasgenoemde sy geld agter gelaat het,
na 'n vriend
se huis in Belville gery.
Daar
het hy die Saterdag en Sondag nag geslaap. Maandag oggend het die
vriend se moeder toevalling 'n radio berig oor Mnr Coetzee
se
verdwyning gehoor. Omdat die beskrywing in die berig van die
laasgenoemde se voertuig te vore gekom het waarmee die appelant
daar
aangekom het, het sy die polisie ontbied en appelant is aangehou.
Aanvanklik
het hy 'n leuenagtige verduideliking gehad vir sy besit vanCoetzee se
voertuig. Maar later het hy die polisie vertel
wat gebeur het en
hulle na die lyk in die Bergrivier geneem."
At
309 F to G, the trial court's apposite remarks with regards to the
appellant's youthfulness, and its influence on the commission
of the
crime, was quoted with approval by the Appellate Division:
"Jeugdigheid
of onvolwassenheid is 'n faktor wat ons baie deeglik oorweeg het.
Maar ons kom tot die gevolgtrekking dat sy jeugdigheid
in hierdie
geval hoegenaamd geen verband hou met die pleging van hierdie misdryf
nie.
Daar
was geen druk op horn geplaas, of deur omstandighede of deur ander
persone wat vanwee sy jeugdigheid en onervarenheid horn
hierdie
misdrywe laat pleeg het nie. Hy het op sy eie hieroor besin. Hy
het dit gedoenomdat hy geld nodig het. Omdat hy waarskynlik
ook 'n
motor nodig gehad het om mee rond te ry.
Sy
jeugdigheid of onvolwassenheid het in hierdie besluit horn
hierdie
misdrywe te pleeg, ten einde te bekom en ons oordeel
geen rol gespeel nie."
Similarly
in the present case there was no influence on the accused by any
other person. He acted alone. He needed the deceased
's vehicle to
drive around, and to achieve that, he planned to murder the deceased.
And it should be recalled, that in my judgment
convicting the
accused, I mentioned the meticulous planning on the part of the
accused to murder the deceased.
He
lured him to Mr Taute's house, and initially when the deceased
arrived there on the first occasion with other people, he let
him go
so that he could return to the house alone. After he murdered the
deceased, he dragged his body from the house, bundled
it into the
deceased's vehicle and drove to town, where he sold a DVD player
screen, stolen from Mr Taute's house. That was brazen.
He
thereafter drove from Witbank to Phalaborwa.
En
route
he dumped the deceased's body at a
secluded spot and proceeded to Phalaborwa, where he, until he was
arrested, drove around in the
deceased's vehicle. He lied to all and
sundry about how he came to be in possession of the deceased's
vehicle. That was callous.
It must also be borne in mind that the
accused has maintained his innocence up to now. In paragraph 8 of the
pre-sentencing report,
the following is stated:
"The
offender did not want to share what happened with the Probation
Officer, as he only reported that he did not know why
and how it
happened.
He
reported that he did not mean to murder the deceased.
He
further reported that he is not ready to narrate what happened, as he
does not want to be reminded of what happened, because
it traumatizes
him. He reported that he acted alone, and he takes responsibility and
remorseful for what happened."
In
my view, all of the above, especially the viciousness of the accused
deeds, the brazenness and callousness displayed after the
murder, and
the lack of remorse, all rule out immaturity on the part of the
accused. As in the
Bosman's
case
above, I conclude that actions of the accused were not related to his
youth, and this factor cannot be helpful for him as a
mitigating
factor. In this regard I can do no better than repeat the apt remarks
of Navsa J A in
Director of Public
Prosecutions KwaZulu-Natal v Ngcobo
2009 (2)
SACR 361
(SCA) at para 18:
''The
court below took into account the youthfulness of the offenders.
None of the respondents demonstrated immaturity. Nor
was it evident
that anyone of them was subjected to peer or undue pressure, by one
or both of the others.
On
the contrary the manner in which entry was gained to the deceased
house, the brutal nature of the murder, the brazen manner in
which
they walked through a residential area and the callousness displayed
after the murder, as well as the fact that they each
maintained their
innocence right up to the end, showed a complete lack of remorse, and
are all indicative of a calculated, bloody
mindedness belying their
relative youthfulness."
I
turn now to the accused socio-economic background. From the
pre-sentence report, it is quite clear that the accused has not has
a
stabIe environment, growing up. This is reflected amongst others, by
his dropping out of school at an early stage. He has no
training, no
qualification, nor any skills, hence he was without a job, except for
an erratic odd job.
Having
said that, it was observed in S
v Mathlangu
2012 (2) SACR 373
(GSG) at 376 H, that there
are many people in our society, who have also suffered hardship,
deprivation and unfairness and had
left school, resulting in lack of
training, skills and jobs, yet they do not resort to criminality. See
also
Director of Public Prosecutions
KwaZulu-Natal v Ngcobo
above, para 17, where
the Supreme Court of Appeal cautioned against readily accepting that
young people find it difficult to resist
the lure
of
materialism. With regard to the conduct of the accused after his
arrest, it is said that it demonstrates that the accused takes
responsibility for his deeds, as he co-operated with the police. He
volunteered to point out where the body of the deceased had
been
dumped, thereby enabling the family to have a proper burial and
closure. It is true that the accused co- operated with the
police.
But that is only
after
he
had been arrested. It should be borne in mind that when he was
arrested, he was found in possession of the deceased's vehicle,
and
had no plausible explanation for that.
He
would have demonstrated responsibility, had he gone to the police
before he was arrested. The vehicle was found because it apparently
had a tracking device, and not because of his benevolence. Finally I
consider the accused's prospects of rehabilitation. In this
respect I
have nothing to work from. I have no basis to consider this aspect.
The
accused elected not to testify in the mitigation of sentence. And all
I have is a passing reference in the pre-sentencing report
of him
being remorseful. That cannot be explored, and what is stated in the
pre- sentencing report is at best a neutral fact. The
court has no
mechanism of verifying that aspect.
In
this regard, the following was stated by the Supreme Court of Appeal
in S v Matyityi
above,
para 13:
"Remorse
was set to be manifested in him pleading guilty and apologising
through his Counsel (who did so on his behalf from
the bar) to both
Ms KD and Mr Cannon.
It
has been held, quite correctly, that a plea of guilty in the face of
an open and shut case against an accused person, is a neutral
factor.
The evidence linking the respondent to the crimes, was overwhelming.
In addition to the stolen items found at the home
of his girlfriend,
there was DNA evidence linking him to the crime scene, pointings out
by him, and his positive identification
at an identification parade.
Remorse is a gnawing pain of conscience for the plight of another.
Thus genuine contrition can only
come from an appreciation and
acknowledgement of the extent of one's error.
Whether
the offender is sincerely remorseful and not simply feeling sorry for
himself or herself at having been caught, is a factual
question. It
is to the surrounding actions of the accused, rather than what he
says in court, that one should rather look.
In
order for the remorse to be a valid consideration, the penitence must
be sincere, and the accused must take the court fully into
his or her
confidence. Until and unless that happens, the genuineness of
contrition alleged to exist cannot be determined."
(Footnotes
omitted.)
The
proper approach where minimum sentences are applicable, was
established by the Supreme Court of Appeal in the path-finding and
seminal judgment of S
v Ma/gas
2001
(1) SACR 469
SCA; (2001) (2) SA12 22.
[2001] 3 All SA 222.
The
summary of the approach is conveniently set out in paragraph 25 of
the judgment, the effect of which is that prescribed minimum
sentences should ordinarily, and in the absence of weighty
justification, be imposed.
The
approach established in
Malgas,
which has since been followed
in a long line of cases, sets out how the minimum sentencing regime
should be approached and in particular,
how the enquiry into
substantial and compelling circumstances is to be conducted by a
court. The approach was endorsed by the Constitutional
Court in S
v
Dodo
201 (1) SACR 594
(CC) as being ‘undoubtedly
correct’ and the summary referred to above as having laid down
‘a determinative test’
as to when the prescribed sentence
may be departed from. It is the court’s
duty to consider all relevant factors in
considering in whether substantial and compelling circumstances are
present.
It
is important for the sentencing court to properly balance all factors
relevant to sentencing against the benchmarks set by the
Legislator.
See S
v Mvambu
2005
(1) SACR54 (SCA). Life imprisonment is the heaviest sentence a person
can legally oblige to serve. It should therefore not
be imposed
likely without full and proper consideration of all the relevant
facts.
It
was remarked in
Rammoko v Director of Public
Prosecutions
2003 SACR 200
(SCA) para 13 that
where life sentence is prescribed, an accused must not be subjected
to the risk that substantial and compelling
circumstances are, on
inadequate evidence, held to be absent.
At
the same time, the community is entitled to expect that an offender
will not escape life imprisonment, which has been prescribed
for a
very specific reason, simply because such circumstances are,
unwarrantedly, held to be present.
In
Matyityi
above, it was
pointed out that the fact that Parliament had enacted the minimum
sentencing legislation was an indication that it
was no longer
business as usual. A court no longer has a clean slate to inscribe
whatever sentence it thought fit, for the specified
crime.
It
has to approach the question of sentencing, conscious of the fact
that the minimum sentence had been ordained as the sentence
which
ordinarily should be imposed, unless substantial and compelling
circumstances were found to be present.
It
was also remarked at para 23 in
Matyityi
that
there was all too frequently a willingness on the part of courts to
deviate from the sentences prescribed by the Legislator,
for the
flimsiest of reasons.
The
upshot of all the above is, that having considered carefully all the
relevant factors, I conclude that none of them constitutes
substantial and compelling circumstances, taken either severally or
cumulatively. I am not unmindful of the period spent by the
accused
awaiting finalisation of his trial, which is over a year to date. In
my view, the totality of the circumstances dictates
that the
prescribed sentences should be the only appropriate sentences, in
spite of that period. With regard to the count of theft,
I am of the
view that 3 years' imprisonment should be appropriate. On Count 4,
that is, defeating or obstructing the administration
of justice, 5
years' imprisonment would suffice.
In
the result, the accused, Mr Charles de Beer is sentenced as follows.
Count
1: Robbery with aggravating circumstances, you are sentenced to 15
years' imprisonment;
Count
2: Murder, you are sentenced to imprisonment for life;
Count
3: Theft, you are sentenced to 3 years' imprisonment;
Count
4: Defeating or obstructing the administration of justice, you are
sentenced to 5 years' imprisonment.
It
is ordered that the sentences imposed in counts 1, 3 and 4 shall run
concurrently with the sentence imposed in count 2.
Thank
you. Court adjourns.
COURT
ADJOURNS