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[2014] ZANCHC 8
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S v D.D (K/S 46/2012) [2014] ZANCHC 8 (25 April 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
[NORTHERN CAPE
DIVISION, KIMBERLEY]
Case
No:K/S 46/2012
Date
Heard:27 MARCH 2014
Date
Delivered: 25 APRIL 2014
In the matter
between:
THE STATE
v
DD
JUDGMENT
– BAIL APPLICATION
KGOMO JP
1. On 27 March 2014
I convicted the minor accused, Mr DD, born on 15 August 1996, of the
following offences:
1.1 Count 1: The
Rape of his sister (Ms M): Guilty as charged;
1.2 Count 2: The
Murder of his father (Mr D): Guilty as charged;
1.3 Count 3: The
Murder of his mother (Mrs C): Guilty as charged;
1.4 Count 4: The
Murder of sister (Ms M): Guilty as charged; and
1.5 Count 5:
Defeating the ends of justice: Guilty as charged.
2. Consequent upon
these convictions the minor, his guardian (Mr Bennie Heckroodt) and
his attorney, Mr Riaan Bode, immediately
brought an application that
he be admitted to bail pending sentencing. I dismissed the
application and reserved my reasons, which
now follow. The case has
been postponed to 13–16 May 2014 for, what I would generically
term, pre-sentencing reports by
the State and the defence and to
complete the sentencing phase. See S v Le Roux and Others 2010(2)
SACR 11 (SCA) at para 35.
3. The case has, in
view of the accused minor’s age, been conducted in terms of s63
of the Child Justice Act, No75 of 2008
(the CJA), read with s154(3)
of the Criminal Procedure Act, No 51 of 1977 (the CPA).
4. Section 25 of the
CJA regulates the procedure to be followed when a child applies for
his/her release on bail. It provides that:
“25. Release
of child on bail. - (1) Chapter 9 of the
Criminal Procedure Act
applies
to an application for the release of a child on bail, except
for
section 59
and
section 59A
, to the extent set out in
section 21
(2) (b).
(2) An application
for the release of a child, referred to in
section 21
(3)(c), on
bail, must be considered in the following three stages:
(a) Whether the
interests of justice permit the release of the child on bail; and
(b) if so, a
separate inquiry must be held into the ability of the child and his
or her parent, an appropriate adult or guardian
to pay the amount of
money being considered or any other appropriate amount; and
(c) if after an
inquiry referred to in paragraph (b), it is found that the child and
his or her parent, an appropriate adult or
guardian are—
(i) unable to pay
any amount of money, the presiding officer must set appropriate
conditions that do not include an amount of money
for the release of
the child on bail; or
(ii) able to pay an
amount of money, the presiding officer must set conditions for the
release of the child on bail and an amount
which is appropriate in
the circumstances.”
It is therefore
evident from the construction of
s25(1)
of the CJA (above) that
Chapter 9 of the CPA applies to bail proceedings involving minors,
with two exceptions which are not relevant
to the investigation
before me.
5.
Section 58
of the
CPA stipulates that the bail of an accused person who has been
released on bail shall endure, unless terminated under some
provisions of the CPA, until a verdict is given by the Court in
respect of the charge(s) to which the offence(s) in question
relate(s).
The section further provides that:
“58. Effect of
bail. - The effect of bail granted in terms of the succeeding
provisions is that an accused who is in custody
shall be released
from custody upon payment of, or the furnishing of a guarantee to
pay, the sum of money determined for his bail,
and that he shall
appear at the place and on the date and at the time appointed for his
trial or to which the proceedings relating
to the offence in respect
of which the accused is released on bail are adjourned, and that the
release shall, unless sooner terminated
under the said provisions,
endure until a verdict is given by a court in respect of the charge
to which the offence in question
relates, or, where sentence is not
imposed forthwith after verdict and the court in question extends
bail, until sentence is imposed:
Provided that where a court convicts
an accused of an offence contemplated in Schedule 5 or 6, the court
shall, in considering
the question whether the accused’s bail
should be extended, apply the provisions of
section 60
(11) (a) or
(b), as the case may be, and the court shall take into account—
(a)the fact that the
accused has been convicted of that offence; and
(b)the likely
sentence which the court might impose.”
6. In terms of
s
77(4)
of the CJA a minor may not be sentenced to Life Imprisonment
but a maximum sentence of 25 years may be imposed. At para 81 of the
judgment (relating to the verdict) I found that:
“The murders
were not only pre-meditated but were in fact planned and executed
with the direct intent to murder.”
7. In the
circumstances
s60(11)(a)
of the CPA is applicable. This section
provides:
“60. Bail
application of accused in court.—(1) (a) An accused who is in
custody in respect of an offence shall, subject
to the provisions of
section 50
(6), be entitled to be released on bail at any stage
preceding his or her conviction in respect of such offence, if the
court is
satisfied that the interests of justice so permit.
(11) Notwithstanding
any provision of this Act, where an accused is charged with an
offence referred to—
(a)in Schedule 6,
the court shall order that the accused be detained in custody until
he or she is dealt with in accordance with
the law, unless the
accused, having been given a reasonable opportunity to do so, adduces
evidence which satisfies the court that
exceptional circumstances
exist which in the interests of justice permit his or her release.”
8. In S v Dlamini; S
v Dladla and Others; S v Joubert; S v Schietekat
[1999] ZACC 8
;
1999 (2) SACR 51
(CC) at para 76 the ConCourt held:
“76. Likewise
I do not agree that, because of the wide variety of ‘ordinary
circumstances’ enumerated in ss (4)
to (9), it is virtually
impossible to imagine what would constitute ‘exceptional
circumstances’, and that the prospects
of their existing are
negligible. In requiring that the circumstances proved must be
exceptional, the subsection does not say
they must be circumstances
above and beyond, and generally different from those enumerated.
Under the subsection, for instance
an accused charged with a Sch 6
offence could establish the requirement by proving that there are
exceptional circumstances relating
to his or her emotional condition
that render it in the interests of justice. Other examples are
readily to hand in the small
body of case law that has already been
established in the short period since the 1997 amendment came into
operation on 1 August
1998. Thus, an otherwise dependable and charged
with consensual sexual intercourse with a 15-year-old girl,
technically fall within
the ambit of ss (11)(a). Yet a prudent
judicial officer could find those circumstances sufficiently
exceptional to warrant bail
provided there were no other facts
adverse to the grant. Schietekat on the other hand also falls under
Sch 6 and ss 11(a) indecent
assault on a child under 16 and previous
convictions for the same offence), but in his case the test for
exceptional circumstances
produced the opposite answer. In the final
analysis, the evaluation is to be done judicially, which means that
one looks at substance,
not form. ”
9. S 60(5) of the
CPA sets out the factors which a Court may take into account, where
applicable, in considering whether the grounds
in s60(4)(a) have been
established, in other words; the likelihood that the accused, if
released on bail, will endanger the safety
of the public or any
particular person or will commit a Schedule 1 offence. These factors
are:
“(5) In
considering whether the ground in subsection(4) (a) has been
established, the court may, where applicable, take into
account the
following factors, namely—
(a) the degree of
violence towards others implicit in the charge against the accused;
(b) any threat of
violence which the accused may have made to any person;
(c) any resentment
the accused is alleged to harbour against any person;
(d) any disposition
to violence on the part of the accused, as is evident from his or her
past conduct;
(e) any disposition
of the accused to commit offences referred to in Schedule l, as is
evident from his or her past conduct;
(f) the prevalence
of a particular type of offence;
(g) any evidence
that the accused previously committed an offence referred to in
Schedule l while released on bail; or
(h) any other factor
which in the opinion of the court should be taken into account.”
10. In an effort to
persuade me to admit the minor to bail the defence intimated that he
has been on bail since 03 September 2012
and attended his court
appearances without fail; that he has a good support system in the
form of his guardian, his guardian’s
wife and their children
who are 22 and 27 years old. That Grey College, Bloemfontein, would
not register him as a final matric
student but Panorama Combined
School in Jacobsdal is prepared to admit him. A letter to that
effect, Annexure “C”,
has been furnished.
11. Mr Heckroodt
testified in confirmation of the arrangement and the situation allued
to in para 10 (above). What concerns me
is that Mr Heckroodt
literally confirmed that the minor had unlimited access to the many
firearms he (Mr Heckroodt) owns. The
State produced a recent
photograph showing the minor showing off his blesbok trophy that he
hunted; with a powerful rifle in his
hand. What is disturbing is
that Mr Heckroodt was unaware of the photo which has been circulating
in the social media, whereas
the minor has been staying in his house
since 07 April 2012. This is an indication that the minor lacks
proper supervision or
he does not subject himself to supervision or
discipline.
12. I deem it
imprudent to deal in detail with some of the reasons why I refused
bail because I must maintain an open mind to enable
me to impose an
appropriate sentence later. I prefer to confine myself to the
following comments made in the verdict judgment:
12.1 In para 37 I
state:
“37. Twelfth:
If the minor reacted as described by his relatives, and also by the
investigating officer and further when he
testified in court then it
would be fair to say of him the deaths of his family “left him
cold”; indifferent. He saw
his father sprawled and full of
blood. He looks at him and walks past. Next he sees his mother
prostrate and bloodied and adopts
a similar attitude. His beloved
younger sister of 14 years, who was heavily wounded, strains every
sinew, evidently to summon help;
even on the minor’s own
account to Pastor Otto ---, reaching out to him for help, was pushed
away. He says he was repulsed
by her blood. How can a regular hunter
be so blood-squeamish. He has his cellphone with him. He does not
call an ambulance or the
police or a relative. All he can think of is
to change his T-shirt which was soaked in his sister’s blood
and drive some
10 km away purportedly to raise the alarm. I reject
the minor’s statement that his sister would have told him that
she loved
him. The circumstances militate strongly against such
endearment.”
12.2 In para 42 I
said of the minor:
“42. Dr Fouchè
testified that the .22 gunshot wounds caused instantaneous death.
This must be so. Of immense significance
is the evidence of W/O
Phillemon Nhlapo. He is an expert on ballistics and attached to the
Ballistic Section of the Forensic Science
Laboratory of SAPS in Cape
Town. He also attended the post-mortem examination with Capt Joubert
conducted by Dr Fouchè.
The evidence of the three are
consonant where their fields of expertise converge or conflate. He
testified that each one of the
deceased were shot through his/her
body with the lighter calibre Magnum .357 first and, when they were
already prostrate, then
executed with the heavy calibre .22 rifle;
almost without exception through their heads. The following excerpts
encapsulate it
all:
“State
Counsel: Yes. And then paragraph 8. Paragraph 8 contains the
conclusions you reach as a result of what you observed
of the
wounds.===Yes My Lord.
Yes, you can then
move to paragraph 8.1. --- 8.1 will read as follows: The wound
mentioned in paragraph 5.1 was caused by the bullet
fired with a
downwards trajectory My Lord.
And just to remind
ourselves Warrant Officer Nhlapo, this wound we see on photos 20 and
22 of exhibit “FF”, is that
correct?=== That’s
correct My Lord.
While we are on this
particular wound, would this be consistent if somebody who is sitting
and getting up from the sitting position
when such a wound is
inflicted?=== That’s correct My Lord. The upper body of the
person being exposed to the shooter, slightly
bent into the shooter
My Lord.
Court: Bending
forward?===Forward My Lord.
Mr Cloete: And then
you can move on to paragraph 8.2 and read it out for purposes of the
record.===8.2: The wound mentioned in paragraph
5.2 was caused by the
bullet fired from the right with a downwards trajectory My Lord.
And again, these are
the wounds we see on photos 19 and 23 of exhibit “FF”,
namely the wound on the right side of [Mr
D], is that correct?===
That’s correct My Lord.
And you say this was
also with a downward trajectory?=== That’s correct My Lord.
Then you can move on
to paragraph 8.3. === 8.3: The wounds mentioned in paragraph 5.3 was
caused by a bullet fired from the left
to the right My Lord.
Now what is
important here, and this is the wound which we see on photo 24? ===
That’s correct My Lord.
Of exhibit “FF”.
While we are on this particular wound. Is it possible that the
shooter was standing up and the deceased
was lying down when this
particular shot was fired which caused this wound? === That’s
correct My Lord.
Yes. And then I
would like you to move to paragraph 8.4. === 8.4: The wound mentioned
in paragraph 6.1 and 6.2 were caused by a
bullet fired from the back
to the front My Lord.
Okay. And again we
now know these were the bullets fired as recorded and the wounds
recorded on photos 15 and 16 of exhibit “FF”,
is that
correct? === That’s correct My Lord.
When one looks at
paragraph 8.5 can you just present your findings or your conclusion
in this regard? This is now the wound as we
know at the back of the
head of [Mrs C]. We are at 8.5. === The wound mentioned in paragraph
6.3 was caused by the bullet fired
from the back of the head of the
deceased towards the front My Lord.
And this is the
wound we see on photo 17 of exhibit “FF”, is that
correct? === That’s correct My Lord.
Yes. Now is it
possible that the deceased was already prone in a lying position when
she was shot in this manner? === Indeed My
Lord.
And then also –
then you can move on to paragraph 8.6. === 8.6: The wound or the
wounds mentioned in paragraph 7.1 and 7.2
were caused by a bullet
fired with a downwards trajectory.
Okay. And these are
the wounds we see in photos 3, 4, 5 and 6 of exhibit “FF”,
is that correct? === That’s correct
My Lord.
These are the wounds
[in respect of] the deceased [Ms M]. And then also you can read out
paragraph 8.7. === 8.7 read as follows;
The wound mentioned in
paragraph 7.3 was caused by the bullet fired from the back of the
head of the deceased towards the front
My Lord…
But again the
question is, from your observations and from what you can recall from
your observations. Is it possible that the deceased
was already lying
down when she was administered this particular wound? === That’s
correct My Lord”. (Emphasis added)”
12.3 In para 67 I
concluded:
“67. In my
view the torturer wanted to achieve something; and THAT something on
the evidence was to have sexual intercourse
with the girl. The girl
refused and defended her modesty. In consequence she was tortured,
raped and murdered to prevent her from
reporting to her parents that
she was raped. Because the girl’s parents would bear witness
against the perpetrator they too
had to be eliminated, and were.
This is the most plausible motive for the murders. In the leading
case on the relevance of motive
for purposes of proving intention or
identity Innes CJ held in R v Khumalo and Nkosi
1918 AD 500
at 504:
“The ordinary
man does not perpetrate a grave criminal offence without a motive;
and although it is not essential, nor always
possible, to ascertain
what it was, the matter is often of considerable importance. A crime
for which no motive likely to affect
the person charged can be
assigned is difficult to bring home. So that the presence of such a
motive is an element in favour of
the Crown, and its absence an
element in favour of the accused. Now it is seldom that direct
evidence on the point, such as would
be afforded by the accused's own
statement, can be produced. In the majority of cases the probable
existence or non-existence of
motive must be deduced from external
circumstances. And such circumstances may as a general rule be proved
if they are relevant
- that is to say if they are circumstances from
which the presence or absence of the particular motive may be
reasonably inferred.
Thus, if a husband were charged with the murder
of his wife, evidence that he had formed an adulterous connection
with another
woman would be admissible as showing a possible motive
for the crime. On the other hand proof might be properly given of
affectionate
marital relations in order to negative motive.”
12.4 On defeating
the ends of justice I remarked in paras 69 and 70:
“60. Having
regard to the conspectus of the entire evidence in the trial it is
evident that the minor’s most intractable
concern was to give a
plausible account of how his clothing came to be contaminated with
his deceased sister’s blood. Hence
his irreconcilable and
therefore materially conflicting reports that Ms M died lovingly in
his arms and, self-contradictorily,
that he pushed her away violently
because he was nauseated as she was awash with blood. The latter part
of the statement was meant
to explain how his T-shirt that he
discarded in his bedroom before he reported the incident to the
police was torn.
70. The minor was
given the benefit of the doubt from 06 April 2012 until 12 August
2012 when Col De Waal stopped the charade by
charging the accused
minor with the offences listed in the indictment, after a full,
thorough, scientific and fair investigation
was carried out. From 12
August 2012 nothing said or done by the minor in respect of the
defeating the ends of justice count can
be held against him as he was
an accused and had the right to remain silent.”
13. From what is
stated in paras 12.1 – 12.4 I am prepared to say that is the
only side of the minor accused that I know.
I do not wish to go
further than to say he is unpredictable. I will know him better
after receipt of the pre-sentencing reports
and the evidence in
mitigation and aggravation that lie in the future. I am satisfied
that the minor has not presented exceptional
circumstances to show
that it would be in the interests of justice to release him on bail
pending sentencing.
14. The minor has
been remanded in custody to the Kimberley Correctional Service where
Mr Phillip Phayane described the facilities
as follows:
“1. I am the
Area Coordinator, Development and Care, Kimberley Management Area. I
am responsible for the spiritual care,
social work services, health
care services, education and training of all offenders.
2. Kimberley
Correctional Centre currently has facilities inter alia for the
detention of youth detainees. The remand youth detainees
are kept
separate from the convicted youth detainees. The facility also
caters for the different age groups. In high profile
cases the
decision is also taken by our department to secure proper detention
to prevent victimisation.
3. The current
departmental policy on remand detainees is that no schooling is
provided to the detainees. However, facilities are
provided for
those detainees who are willing to study for private schooling, like
writing examinations.
4. Different remand
youth detainees are kept separate, like the age group 18 to 21 years
are kept separate. If an offender is younger
than 18 years, the
provisions of the
Child Justice Act
(Act 75 of 2008) will be
applicable and such a detainee will be kept separate from the age
group of 19 to 21 years.”
It is for the
aforegoing reasons that I dismissed the minor’s application to
be admitted to bail pending sentencing.
F DIALE KGOMO
JUDGE PRESIDENT
Northern Cape
Division, Kimberley
On behalf of the
State: Adv J J Cloete
Assisted
by: Adv Q Hollander
Instructed
by: Director Public Prosecutions
On behalf of the
Accused: Adv W J Coetzee
Assisted
by: Adv S L Erasmus
Instructed
by: De Jager Attorneys
Thereafter:
On behalf of the
Accused: Mr R Bode (as from 09/12/2013)
Instructed
by: Engelsman Magabane Attorneys