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[2014] ZANCHC 4
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S v Van Nel and Others (K/S 2/14) [2014] ZANCHC 4 (28 May 2014)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
NORTHERN
CAPE DIVISION, KIMBERLEY
Case
No K/S 2/14
Date
Delivered: 28 May 2014
In
the matter between
THE
STATE
V
DEON
HILTON VAN
NEL
.................................................................................................
Accused
1
BB
..........................................................................................................................................
Accused
2
DEON
ALWYN
....................................................................................................................
Accused
3
MERVIN
JACOBUS
...........................................................................................................
Accused
4
ADRI
JULIUS
.....................................................................................................................
Accused
5
JUDGMENT
PAKATI
J
1.
Mr Deon Hilton Van Nel, Mr BB, a minor of
14 years, Mr D[…] A[…], the deceased’s [….]
also known as S[…]
P[…], Mr Mervin Jacobus and Mr Adri
Julius, accused 1 to 5 respectively, are arraigned on three charges:
In count 1 and
2 they are alleged to have raped the deceased, V[…]
J[…], a ten year old girl. In count 3 they face a charge of
murder
of the deceased, V[…] J[…]. The incidents are
alleged to have taken place on 01 December 2010 at or near Breipaal,
Douglas, in the district of Van Herbert.
2.
The accused are represented as follows:
Accused 1 by Mr J Schreuder; 2 by Mr Fourie; 3 by Mr Van Tonder; 4 by
Mr J Cloete and 5
by Mr P Fourie on the instructions of Legal Aid
South Africa for all of them. The proceedings were conducted in
camera and in the
presence the minor’s guardian, Mr H[…]
M[…]. All the accused pleaded not guilty to the charges.
Accused 1,
2, 3 and 5 denied knowledge of the offences. Accused 4’s
defence is an
alibi.
The evidence implicating accused 3 and 5 is contained in a statement
(“Exh R”) made by accused 2 and a confession (“Exh
Q”) by accused 4 after their arrest which will be dealt with at
a later stage.
3.
Ms S[…] J[…] also known as
O[…] B[…], the sister to the deceased’s
grandmother, stayed with the
deceased since she was seven months old.
On 01 December 2010 she and the deceased were doing the laundry. At
about 14h00 the deceased
went to Cathy’s Shop, in Breipaal, to
exchange five cents coins for notes. That was the last time she saw
the deceased alive.
She and her family searched for her the whole
afternoon/evening without success. During the search she met accused
3 and 5 who
told her they had not seen her.
4.
Mr Jan Julies, accused 5’s brother,
was at home at 2[…] N[…] Street, Breipaal. It was after
23h00 when he heard
accused 5’s voice outside his door. Accused
5 was in the company of accused 2, 3 and 4 looking for a specific
cell phone.
He did not open for them and refused to hand over the
cell phone because it was late. An argument ensued between accused 5
and
Jan. Accused 5 asked for a knife from accused 4 which he handed
over to him. Accused 5 gained entry to the house through a window
and
threatened to stab Jan with it. Jan pushed accused 5 outside. Ms
Julies, their neighbour, heard the noise and came to reprimand
them.
Accused 2, 3, 4 and 5 then left. The following day Jan saw the four
accused seated under the patio at Ms Julies’ house.
He was
moderately drunk.
5.
On the day of the incident Mr Jakobus
Hoogstander was asleep at home with his family when he heard his dog
barking. He went to investigate
and noticed nothing perculiar. He
went back to bed. Around 23h30 he heard the dog barking more
intensely this time. He woke up
and peeped through the window. He
noticed accused 3 and 5 standing on the other side of his fence
facing him. He saw a black plastic
refuse bag, which he initially
thought was a black shirt, hanging on the fence. He looked in the
direction of the barking dog and
saw feet of a human being in between
the dog’s legs. He phoned the police but could not reach them.
He then called his neighbour,
Mr Johannes Nel, also known as
Vaaltein, to come to the scene immediately. As Mr Nel approached Mr
Hoogstander’s house accused
3 and 5 noticed him and ran away.
They were joined by two others whom he could not identify. They
entered House No 2[…]
A[…] Street, Mr Hoogstander’s
cousin’s house, Ms Nosie (five houses away) in the same street.
6.
Mr Hoogstander called the police again.
Upon their arrival he pointed to them the body of a young girl whose
lower part of the body
was naked. A black refuse bag covered her head
and neck. With the removal of the plastic bag by the police he
noticed an open wound
on the left side of the neck. He testified that
two street lights on both sides of his house illuminated the area.
Accused 3 and
5 grew up in front of him and he knew them well.
7.
Mr Piet Visser, a sergeant in the South
African Police Services (SAPS), was on stand-by duty on the night of
the incident when he
received a complaint about a murder around
00h02. He immediately visited the scene with three other colleagues,
constables Baartman,
Erasmus (a female officer) and Plaatjies. He
corroborated the evidence of Mr Hoogstander as to the condition in
which he found
the deceased. He added that the deceased was lying in
a corner of the yard. Her upper body was covered with a black plastic
refuse
bag from the head to just below the ribs. He observed two
wounds on the front part of her neck. She wore a green t-shirt and a
brown skirt pulled up to below the hip. She had no panty on. The
green top was bloodstained. On further investigation he noticed
a
black plastic refuse bag hanging on the fence not far from where the
deceased’s body was lying. At that stage W/O Henry
Andrew De
Wee, the investigating officer, arrived and took over the scene. It
was put to Sgt Visser that he earlier arrested accused
3 and 5 in
connection with a housebreaking case but he denied it.
8.
W/O De Wee’s testimony is to the
effect that around 02h00 when he got to the scene he noticed that the
deceased’s clothing
was bloodstained and full of soil
.
The black plastic bag next to the body
was stained with dried blood. He observed a stab wound on the
left side of deceased’s
neck and other wounds on the neck and
chest. He then called the officers from the Local Criminal Record
Centre (“LCRC”)
and Pathology Services to take over the
scene. Mr Tshepo Mogoiwa, an LCRC official, took the photos. The
forensic pathology officials
conveyed the body to the mortuary.
9.
W/O De Wee visited the said house to which
the suspects fled, which was pointed out to him by Mr Hoogstander,
and found accused
2, 3, 4 and 5 asleep. He later took them to Dr
Marolong to draw blood for DNA analysis. After the blood samples were
sealed the
same were transported to the forensic laboratory in Cape
Town.
10.
In the early hours of the morning around
04h00 Ms J[…] heard a knock on her door. She opened and
discovered that it was accused
3 and 5. Accused 3 enquired from her
whether the deceased was home. She told him that she was still not
home. He informed her that
they were from the police station and the
police suspected them of having killed a young girl. At that stage
she did not know of
anyone who had been killed. She wanted to know if
someone had been killed which accused 3 confirmed. She then called
the police
and made a report to them. She gave them the description
of the child whereupon they confirmed the death of the deceased.
11.
Dr Denise Lourens who performed the autopsy
report recorded the chief autopsy findings as follows:
“
a.
Female child.
b.
Stab wounds of the neck with injuries to both internal jugular veins,
the trachea, the oesophagus, the spinal column and the
spinal cord.
c.
Pale organs.
d.
Extensive and severe injuries to the genitalia.”
She
concluded that the cause of death was stab wounds to the neck.
12.
Dr Lourens testified that the abrasions of
the body were caused by blunt trauma while the stab wounds to neck
were caused by a blunt
knife blade. The deceased bled profusely which
led to her death. In total she sustained nine stab wounds, three of
which were fatal.
The deceased also sustained post mortem abrasions
on the right cheek, left chin, posterior upper leg, posterior left
leg and right
calve. In her opinion these injuries were sustained
after the deceased had died. Her body was moved to a different
location. The
deceased’s tongue protruded with drying of the
tip of the tongue and the bottom lip. She testified that that is
consistent
with strangulation due to pressure on the neck. There was
blood in between the ribs caused by blunt trauma consistent with
kicking,
a blow by a knee or with a fist. Blood also filled the
airspaces. The abrasions on the lateral aspect of the right upper arm
with
small abrasions positioned in a row on the one side of the
bruise are consistent with wounds caused by a firm grip of a hand on
the arm. The deceased had extensive sand soiling of the hands.
13.
Regarding the deceased’s genitalia Dr
Lourens recorded thus:
“
Bloody
fluid ran from the vagina. No panty was with the body. The pubic hair
was sparse and in a very early stage of development.
The breasts
showed no signs of development. The vagina showed a tear lengthwise
from the hymen region up to the cervix. The tear
was wide and from
the 3h to the 9h position. The depth of the tear was almost the full
thickness of the wall between the vagina
and rectum. Only a thin
“membrane” of tissue separated the two openings. In 1[1h
position] there was a full thickness
tear between the vagina and
rectum. The vagina was contaminated with faeces. Severe contusion of
the proximal vagina was present
in the 3h, 6h and 9h positions.
Severe contusions were also present surrounding the urethra. The anal
opening was dilated with
severe contusions in the 3h and 9h
positions.”
Dr
Lourens testified further that to have tissue bleeding/contusion of
the pelvis in the region of the “pouch of Douglas”
situated behind the uterus one needs to hit hard in between the legs.
It can also be caused by raping a person. The deceased was
penetrated
vaginally and anally. The injuries sustained around these areas were
very severe and were sustained whilst she was still
alive. Dr Lourens
testified further that the deceased’s experience was extremely
painful more than what a woman in labour
experiences. Her genitalia
were very small to accommodate this.
14.
Swabs from the mouth, vulva, vestibule,
vagina and perineum, anal opening and rectum, nails and web spaces,
foreign hair on the
body, white fluff over the pubic region, hair of
the face, chest and neck, combings of the hair and scalp hair were
retained for
analysis. The deceased’s clothing was placed in a
plastic evidence bag and handed over to Const Van Zyl.
15.
When Dr Lourens was asked to give an
opinion in instances where penetration is established but no male
semen is found in the victim’s
body she said that is possible
under the following circumstances:
15.1
When the perpetrator uses a condom;
15.2
When ejaculation takes place outside the vagina;
15.3
When a victim stands up the semen runs out
of the body. In the deceased’s case the body was shifted
resulting in the body
fluids getting lost in the process;
15.4
During the interval from the period of the
assault, rape and murder evidence can be lost;
15.5
When a woman passes urine semen can be
washed out. In the case of the deceased she had an empty bladder
during post mortem. It was
not clear to Dr Lourens whether she
started off with the empty bladder or not;
15.6
When there is anal penetration sperms do
not survive long in faeces, especially in deceased’s case where
the vagina was soiled
with faeces;
15.7
When a male person has an erection and
ejaculates, semen comes out but if he has no DNA, none will be found
because he is not in
a position to have children because of sterility
or that he did a vasectomy;
15.8
It is possible for a terrible tear of the
vagina that bleeds to wash away semen in the vagina as in the case of
the deceased.
16.
Dr Lourens also explained the possibility
of sexual penetration by more than one perpetrator but only one
perpetrator’s DNA
was positively identified; accused 1’s.
She said it is possible for a victim (the deceased in this case) to
be raped by a
number of persons and yet only one accused’s DNA
is isolated. She stated that some men deposit sperms that survive
longer
than others. It is possible that semen earlier deposited is
pushed out with an erect penis leaving the semen deposited last.
The doctor indicated that the knife that appears in Exh “D”
photos 3 and 4 was most probably the kind of knife used
as the murder
weapon when one looks at the shape of the wounds. She could not tell
if it was possible that one person or a number
of persons attacked
the deceased because she was a tiny young girl but one person could
have overpowered her easily.
17.
Dr Lourens estimated the deceased’s
time of death as closer to the time that she went missing just after
she ate her last
meal during the day rather than when her body was
discovered. She based her opinion on the fact that there were
multiple fly eggs
deposited in the region of the deceased’s
neck and chest because of the stab wounds. She testified that flies
invade a dead
body very quickly if there is blood and are active
during the day rather than night time.
18.
Ms Cindy-Lee Juliana Sauls, a W/O in the
SAPS attached to the Biology Unit of the Forensic Science Laboratory
as a Forensic Analyst
and a Reporting Officer, testified that on 02
September 2013 she received the case file. She evaluated the results
from the samples
that were subjected to DNA analysis by a process
requiring competence in biology. She obtained the results via the
STR-DNA analysis
system. From the results she made the following
findings:
“
4.1
The DNA result from the Intra-Vaginal Swab 09D7AC1075GV (“DR
593/10) and Skirt FSC-1024405 matches the DNA result from
the
reference sample 11D4AC6187MX (“Deon Van Nel”). The most
conservative occurrence for this DNA result is 1 in 49
billion
people.
4.2 The donors of
the reference samples 08D3AA8426MX (“[Adrie] Julies”) and
10D4AA8435MX (“[Bostander] Benedict”)
were excluded as
the donors of the DNA on the Intra-Vaginal Swab 09D7AC1075GV (“DR
593/10”), Vestibule Swab 09D7AC1075GB
(“DR 593/10”)
and Skirt FSC-1024405.”
19.
Ms Sauls testified further that she made a correction on page 2 of
her report (Exh “P”) because of an error made
in certain
columns referring to Mervin Jacobus (accused 4). The information in
the third column was switched around with information
in the fourth
column, the fourth with the sixth and the seventh with the eighth.
This, she stated, has no effect on her conclusion
as the results
remain the same even if reproduced or sent to another laboratory.
After she compiled the results they were reviewed
by Liut Spurr. When
Ms Sauls received the samples in respect of accused 1 the results
with regards to the rest of the accused had
already been interpreted
and reported by W/O Kenny. She only received the docket in September
2013 to interpret and report the
results with regards to accused 1.
20.
The admissibility of the statement by accused 2 (“Exh R”)
and the confession by accused 4 (“Q”) was
contested on
the grounds that they had not been freely and voluntarily made and
without undue influence. However, Ms Van Heerden
for the State and Mr
Fourie on behalf of accused 2 by consent stated that no
trial-within-a-trial in respect of the statement made
by accused 2
was required. In this statement accused 2 stated that he, accused 3,
4 and 5 were walking in the main road when they
saw four young girls,
the deceased being one of them, playing along the road. Accused 3 and
5 dragged the deceased from the street
to the field. Accused 2 and 4
left accused 3 and 5 in the field with the deceased. A few minutes
later they came back and found
the deceased’s body placed in a
black refuse bag. Accused 2 observed that accused 3 had a bloodied
knife in his hand. They
all left the body in the field and proceeded
to accused 3’s home where he (accused 4) wiped the bloodied
knife clean. After
a while they returned to where they left the
deceased’s body. Accused 3 and 5 carried the deceased’s
body contained
in the refuse bag and dumped it in Mr Hoogstander’s
premises. They went to accused 3 and 5’s place of residence
where
W/O De Wee found them asleep. Accused 3 threatened to kill
accused 2 if he told anyone about the death of the deceased.
Accused
2 denied knowledge of the offences. His statement is clearly
exculpatory.
21.
Ms Van Heerden made an application for the admissibility of the
statement made by accused 2 against accused 3 and 5 in terms
of
s 3
(1) (c) of the
Law of Evidence Amendment Act, 45 of 1988
. The section
provides:
“
3.
(1) Subject to the provisions of any other law, hearsay evidence
shall not be admitted as evidence at criminal or civil proceedings,
unless –
…
(c) [T]he court
having regard to –
(i)
[T]he nature of the proceedings;
(ii)
[T]he nature of the evidence;
(iii)
[T]he purpose for which the evidence is tendered;
(iv)
[T]he probative value of the evidence;
(v)
[T]he reason why the evidence is not given by the person upon whose
credibility the probative value of such evidence depends;
(vi)
[A]ny prejudice to a party which the admission of such evidence might
entail; and
(vii)
[A]ny 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 interests of justice.”
22.
I considered the fair trial rights of accused 3 and 5 and whether it
was in the interests of justice to receive hearsay evidence
in a
statement made by accused 2 against accused 3 and 5. In an unreported
case of
S v MOSES LITAKO AND OTHERS
Case No. 584/2013
delivered on 16 April 2014
Navsa and Ponnan JJA (Leach &
Petse JJA, Swain AJA concurring) held in para 54:
“
[54]
It is not immediately apparent on what basis such a distinction
[between admissions and confessions] can be drawn. As we have
shown
with reference to the earlier authorities, no such distinction
existed at common law. Moreover,
s 219A
in terms provides that
‘[E]vidence of any admission made extra-judicially by any
person in relation to the commission of
an offence shall…be
admissible in evidence against him’ (our emphasis). Quite
clearly the ‘any person’
and ‘him’ refer to
one and the same person – the maker of the statement. Thus
although there is no statutory
bar as with a confession, the
legislature, consistent with the common law, albeit less
emphatically, has secured the same protection
in a 219A for a
co-accused in respect of an admission as it did in respect of a
confession in
s 219.
Moreover, from the perspective of the one
accused, who may be implicated in the statement of another, one
strains to discern a
sound jurisprudential basis for the distinction.
In application of this distinction, let us assume that A makes a
statement that
implicates his co-accused, B, as well as himself:
Whether or not the statement constitutes a confession or merely an
admission
would no doubt be determined solely with reference to its
maker, A. If it is ruled to be a confession, then irrespective of
what
it says in respect of B it will not be admissible against B. If,
on the other hand, it is held to be an admission, then it would
be
admissible against B. It thus matters not whether A’s
confession only touches tangentially upon B or that his admission,
although largely exculpatory in respect of himself, is devastating in
respect of B. That the characterisation of a statement as
a
confession or an admission could determine, without more, whether it
falls to be admitted as evidence against a co-accused in
and of
itself provokes anxiety. What of where a trial court rules
incorrectly that a statement is an admission and admits it into
evidence against a co-accused and then a court of appeal subsequently
characterises the statement a confession? This appears to
have
happened in
Molimi
[2008] ZACC 2
;
[2008 (2) SACR
76
(CC) paras 26-29)]
. What if
the co-accused is cross examined on a statement that ought not to
have been admitted into evidence against him? It is
possible to
imagine a range of other irregularities that could possibly flow from
that incorrect characterisation. But the more
important question that
those hypothetical postulations provoke is whether, flowing from
that, there is a danger of the conviction
being vitiated. None of
this has hitherto occupied the attention of our courts perhaps
because prior to Ndhlovu the position was
quite straightforward –
an extra-curial statement was inadmissible against a co-accused. And
that rule applied to both admissions
and confessions alike.”
23.
The Court stated further at para 65 as follows:
“
[65]
This rule excluding the use of extra-curial statements made by one
accused against another was not solely based on its hearsay
nature,
although that in itself would have constituted sound reason for
excluding such evidence. It has always been stated that
an admission
made by one person is normally irrelevant when tendered for use
against another. From the State’s perspective
it would usually
be dealing with statements made by co-accused persons which, in
itself, ought to bring with it a caution. The
shifting of blame from
one co-accused to another to avoid conviction is not uncommon in our
criminal justice system. Furthermore,
other than when one is dealing
with vicarious admissions or statements made in furtherance of a
conspiracy, neither of which is
applicable in the present case, it is
difficult to see how one accused’s extra-curial statement can
bind another.
Co-accused, more
often than not, disavow extra-curial statements made by them and
often choose not to testify. They cannot be compelled
to testify, and
in the event that an extra-curial statement made by one co-accused
and implicating the others is ruled admissible
and he or she chooses
not to testify, the right of the others to challenge the truthfulness
of the incriminating parts of such
a statement is effectively
nullified. The right to challenge evidence enshrined in s 35(3) (i)
of the Constitution is thereby rendered
nugatory. In this regard, the
decision of the Canadian Supreme Court in Perciballi is instructive.”
(Emphasis added)
In
the circumstances I found the statement of accused 2 admissible
against him and inadmissible against accused 3, 4 and 5.
24.
In his confession accused 4 implicated accused 2, 3 and 5 as well as
himself in the commission of the crimes. He explained that
he,
together with accused 2, 3 and 5 visited different places on the day
of the incident. At one stage they had a disagreement
with Jan
(accused 5’s brother) regarding a cell phone. Later they found
four young girls playing next to the road. They chased
three of them
and grabbed the fourth one (the deceased). The deceased informed them
that she was going to report the incident to
‘O[…] B[…]’
referring to Ms J[…]. They took the deceased to the field
where they raped her in
turns. Accused 3 took the knife from accused
4 and stabbed her. Accused 4 took the bloodstained knife from accused
3 and wiped
it clean. Accused 5 fetched a black plastic refuse bag
from his home. Accused 3 and 5 put the deceased’s body inside
the
bag. They carried the body and dumped the bag in Kowie’s
(Mr Hoogstander’s) premises. From the evidence of both
investigating
officers, Capt Oliphant and W/O De Wee there was no
explanation as to who these children were (the ones who played with
the deceased),
whether their presence was investigated but none of
the alleged children testified.
25.
During the trial-within-a-trial accused 4 testified and admitted
having made the confession before the Magistrate but alleged
that
Capt Oliphant instructed him what to say
.
Following the trial-within-a-trial I
found the confession admissible against accused 4. With reference to
s 219 of the CPA which
provides that no confession made by any person
shall be admissible as evidence against another person, I ruled
accused 4’s
confession inadmissible against accused 2, 3 and 5.
That
concluded the State case.
26.
At this stage accused 2, 3 and 5 applied for discharge in terms of s
174 of the CPA. This section provides
“
174
Accused may be discharged at close of case for prosecution
If, at the close
of the case for the prosecution at any trial, the court is of the
opinion that there is no evidence that the accused
committed the
offence referred to in the charge or any offence of which he may be
convicted on the charge, it may return a verdict
of not guilty.”
The
application was dismissed because I reckoned that if the confessors
testified there was a reasonable possibility that accused
2 and 4
might implicate their co-accused. However, the accused closed their
cases and elected to exercise their constitutional
right to remain
silent and called no witnesses to testify.
27.
That the deceased was raped and murdered is common cause. Accused 2
in his statement placed himself on the scene of the rape
and murder
though he says he did not see who raped and killed the deceased.
Accused 4 admitted having raped the deceased once.
Accused 3 and 5
denied the allegations against them. The critical question, however,
is whether accused 1, 2, 3, 4 and 5 committed
the offences charged or
any competent verdicts.
28.
The State tendered evidence which is circumstantial in nature. No
one, apart from the accused or some of them, witnessed the
rape and
murder of the deceased. The State case rested upon the DNA results,
the eyewitness evidence which did not go far enough,
the inculpatory
statement of accused 2 against accused 3 and 5 and the confession by
accused 4. In
S v REDDY AND OTHERS
1996
(2) SACR 1
(A)
at 8c-g Zulman AJA held:
“
In
assessing circumstantial evidence one needs to be careful not to
approach such evidence upon a piece-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 evidence needs to be considered in its totality.
It is only then that one can apply the oft-quoted dictum
in
R
v BLOM
1939 AD 188
at 202-3,
where reference is made to two cardinal rules of logic which cannot
be ignored. These are, firstly, that the inference
sought to be drawn
must be consistent with all the proved facts and, secondly, the
proved facts should be such ‘that they
exclude every reasonable
inference from them save the one sought to be drawn.’ The
matter is well put in the following remarks
of Davis AJA in
R
v DE VILLIERS
1944 AD 493
at
508-9:
‘
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 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 of any reasonable doubt which it
may have as to whether the inference
of guilt is the only inference
which can reasonably be 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.’”
29.
Mr Schreuder, on behalf of accused 1, argued that there were a number
of discrepancies which render the DNA evidence tendered
by W/O Sauls
unreliable. W/O Sauls, according to him, failed to explain why the
Court should place reliance on her evidence of
evaluation and
interpretation alone in the absence of any other evidence of an
analyst whose readings she worked on. He argued
further that Const
Van Zyl, who received the samples from Dr Lourens, allocated a
different number (DR539 instead of 593) on the
package when
dispatching it for analysis. W/O De Wee explained that even though
the number allocated by Const Van Zyl was inversed
the Douglas Cas
5/12/2010 was correct on the face of the document (Exh “FF”)
dispatching the samples to the forensic
laboratory. When W/O De Wee
compiled Exh “FF” with Capt Oliphant the exhibits were in
his possession. Accused 1 at
that stage had not yet been a suspect in
this case. The samples only referred to accused 2 to 5. Capt Oliphant
corroborated W/O
De Wee’s evidence that they compiled Exh “FF”
and he personally took the said exhibits to the forensic laboratory
in a sealed condition. Amongst the exhibits that Capt Oliphant
received was a knife pointed out to him by accused 4. However, no
positive DNA results were found on it. His evidence was not
contested.
30.
When W/O Sauls was asked by Mr Schreuder why was the data she had in
para 4 of her report (“exh P”) not contained
in W/O
Davids’ report, she explained that W/O Davids only works with
raw data. She verifies the profiles and check if they
adhere to the
quality guidelines. Once she is satisfied she accepts them and
converts them into electronic data on the forensic
system for W/O
Sauls to view, evaluate and interpret the results. According to her
W/O Davids could not compile a table with columns
as appears in (“Exh
P”) because she does blind analysis of the results meaning she
does not know what profiles will
be used at the end of the day by the
reporting officer. Ms Sauls in whose report the results are
reflected, does the interpretation
of the results which is why the
results are found in her report and not in W/O Davids’ report.
W/O Sauls explained chronologically
the procedure followed when the
exhibits are analysed from the presumptive testing process right up
to the stage where she evaluates
and interprets the results. Through
this process the DNA cannot be changed. In this regard her evidence
was uncontroverted.
31.
Ms Van Heerden submitted that although the confession of accused 4 is
not evidence against accused 2, 3 and 5 the Court should
nevertheless
take cognisance of the facts contained in it and convict accused 2, 3
and 5 as charged on all counts. Mthiyane JA
in
S
v MAKEBA AND ANOTHER
2003 (2) SACR 128
(SCA)
at 133 para 14 had this to say:
“
The
use of Mbongqi’s confession as corroboration for Skhumbuzo’s
evidence was a fatal flaw in the assessment of his
evidence.
Section
219
of the
Criminal Procedure Act, 51 of 1977
, forbids it. That
section provides:
‘
No
confession made by any person shall be admissible as evidence against
another person.’
Even indirect use
of the confession for purposes of corroboration is not permitted. In
R v Baartman [and Others
1960 (3) SA 535
(A)]
an accused had
made a confession and the trial Court in convicting the other accused
had excluded from its consideration the statements
in the confession
which had directly implicated the other accused, but had used the
confession to establish an essential part of
the chain of
circumstantial evidence leading to their conviction. On appeal it was
held that the trial Court had relied on inadmissible
evidence and the
appeal was allowed. It follows, therefore, that no reliance should
have been placed on Mbongqi’s confession
as corroboration for
Skhumbuzo’s evidence, either directly or indirectly.”
It
is therefore clear from
Makeba’s
decision above that neither the confession by accused 4 nor the
statement by accused 2 (See
Litako’s
case in para 22 above) may be taken into account against accused 2, 3
and 5 with regards to the commission of the offences.
32.
There is direct evidence implicating accused 1 with regards to the
rape charges. In
S v MTHETHWA
1972 (3)
SA 766
at 769D-E
it was held:
“
Where,
however, there is direct prima facie evidence implicating the accused
in the commission of the offence, his failure to give
evidence,
whatever his reason may be for such failure, in general ipso facto
tends to strengthen the State case, because there
is then nothing to
gainsay it, and therefore less reason for doubting its credibility or
reliability.”
33.
Heher AJA in
S v CHABALALA
2003 (1) SACR 134
(SCA) 142
para 21
stated:
“
The
appellant was faced with direct and apparently credible evidence
which made him the prime mover in the offence. He was also
called on
to answer evidence of a similar nature relating to the parade. Both
attacks were those of a single witness and capable
of being
neutralised by an honest rebuttal. There can be no acceptable
explanation for him not rising to the challenge. If he was
innocent
appellant must have ascertained his own whereabouts and activities on
29 May and been able to vouch for his non-participation…To
have remained silent in the face of the evidence was damning. He
thereby left the prima facie case to speak for itself. One is
bound
to conclude that the totality of the evidence taken in conjunction
with his silence excluded any reasonable doubt about his
guilt.”
34.
In
S v BOESAK
[2000] ZACC 25
;
2001 (1) SA 912
(CC)
923 para 24 Langa DP as he
then was, held:
“
The
right to remain silent has application at different stages of a
criminal prosecution. An arrested person is entitled to remain
silent
and may not be compelled to make any confession or admission that
could be used in evidence against that person. It arises
again at the
trial stage when an accused has the right to be presumed innocent, to
remain silent, and not to testify during the
proceedings. The fact
that an accused person is under no obligation to testify does not
mean that there are no consequences attaching
to a decision to remain
silent during the trial. If there is evidence calling for an answer,
and an accused person chooses to remain
silent in the face of such
evidence, a court may well be entitled to conclude that the evidence
is sufficient in the absence of
an explanation to prove the guilt of
the accused. Whether such a conclusion is justified will depend on
the weight of the evidence.”
35.
Ms Van Heerden for the State requested the Court to convict accused 1
of murder due to his failure to testify. In examining
the evidence in
totality and taking into account what was said in
R
v Blom
’s case (para 28 supra)
‘
that the inference sought to be
drawn must be consistent with all the proved facts and, the proved
facts should be such that they
exclude every reasonable inference
from them save the one sought to be drawn’
there is no sufficient evidence to sustain a conviction against
accused 1 on the murder charge. It must be stressed that there
is no
onus
on an
accused to prove his innocence. A mere suspicion, strong as it might
be, is not adequate to confirm his conviction. Convictions
based on
suspicion or speculation, as the court stated in
S
v T
[2005 (2) SACR 318
(E)]
, are ‘
the
hallmark of a tyrannical system of law’ and ‘South
Africans have a bitter experience of such a system and where
it leads
to’
. That system cannot and ought
not in our constitutional democracy, be countenanced. See
S
v MOLIMI
[2008] ZACC 2
;
2008 (2) SACR 76
(CC)
at
100E-G.
36.
It is important to note that accused 2 did not incriminate himself in
his statement not even to a lesser charge or competent
verdict. Mr
Hoogstander watched and noticed accused 3 and 5 standing outside the
yard next to where the deceased’s body was
lying. It is clear
that at that stage accused 3 and 5 were not aware of Mr Hoogstander’s
presence because they ran into House
No 2[…], A[…]
Street, when they saw Mr Nel walking towards his house. Accused 2 and
4’s alleged presence was
brought about when Mr Van Tonder, on
behalf of accused 3, put it to Mr Hoogstander that accused 3 was not
standing in front of
his house but walked past it in the company of
accused 2 and 4. This was not disputed by accused 2 and 4. In fact,
accused 2 admitted
in his statement that W/O De Wee found him with
accused 3, 4 and 5 sleeping at the said house. The crucial question
is whether
it can be said that the only reasonable inference is that
if accused 2 was running with accused 3 and 5 therefore he took part
in the rape and murder of the deceased.
37.
Mr Hoogstander did not see accused 3 and 5 dumping the deceased’s
body. He only saw them standing next to the body and
ran away when Mr
Nel approached. This evidence is not enough to sustain a conviction
of rape and murder or an accessory to murder
by disposing of the
body. In my view the State has a duty to prove its case beyond a
reasonable doubt against them and has not
done so.
38.
At the beginning of the trial in his plea-explanation accused 4
denied knowledge of the offences and raised an
alibi
defence. He said he was with accused 2,
3, and 5 at the house of a certain Boompie Fish. The question is if
that is the case how
did it come about that he made a confession
before the Magistrate after his arrest detailing what happened on the
day of the incident
thereby contradicting his
alibi
?
It is trite that, where an
alibi
is raised, there is no burden on an accused to prove his
alibi
.
The
onus
rests
on the State to prove that his
alibi
is false. See
S v SHABALALA
1986 (4) SA
734
(A)
at 736B. On the face of his
confession his
alibi
cannot
stand.
39.
According to his confession accused 4 took the bloodied knife from
accused 3 and wiped it clean. Accused 3 was not charged with
the
offence of defeating or obstructing the course of justice. It would
therefore not be competent to convict him of such an offence
because
that offence is not a competent verdict to murder. There is also no
independent evidence that accused 2 to 5 removed the
deceased’s
body to where it was ultimately found except what is revealed in the
statement and confession of accused 2 and
4. Ms Van Heerden argued
that the fact that accused 2, 3, 4 and 5 ran away from the scene when
they saw Mr Nel instead of alerting
the police or offer assistance,
is suspicious. Their conduct, suspicious as it might be, is not
supported by evidence and is not
sufficient to sustain a conviction
on murder. An omission may lead to liability if there is a legal duty
upon a person to act positively.
According to general principles mere
passivity is not sufficient to render a person liable as accessory
after the fact; more particularly,
the mere omission to report a
crime that has been commit to the police cannot be construed as
conduct amounting to being an accessory
after the fact to the crime.
See
S v PHALLO AND OTHERS
1999 (2) SACR
558
(SCA)
at 567c-d.
40.
Where proof of prior agreement between the participants can be
established the State can rely on the common purpose doctrine
to draw
an inference that each perpetrator associated himself with the
others. However, if there is no such proof of prior agreement
the
following five requirements according to
S v MGEDEZI AND OTHERS
1989 (1) SACR 687
(A)
at 705I-706C, must be met:
40.1The
accused must have been present at the scene where the violence was
being committed;
40.2The
accused must have been aware of the assault on the victim;
40.3He
must have intended to make common cause with those who were actually
perpetrating the assault;
40.4He
must have manifested his sharing of a common purpose with the
perpetrators of the assault by himself performing some act
of
association with the conduct of the others; and
40.5He
must have had the requisite
mens rea
.
In
the present case the State failed to prove these elements.
41.
It is pointed out for the record that when W/O De Wee found accused 2
to 5 sleeping at House No 2[…] A[…] Street
accused 1
was not present. The place where the deceased was raped and killed
could not be established. The scene of the murder
must have been full
of blood. Unfortunately the time lapse between the rape, the murder
and the disposal of the body could also
not be established. It is for
this reason, amongst others, that it cannot be inferred as the only
reasonable inference that accused
1 was complicit in the murder.
42.
In my view the State proved its case beyond a reasonable doubt that
accused 1 raped the deceased twice (once anally and once
per vagina)
and accused 4 once. The State failed to prove beyond a reasonable
doubt that the accused murdered the deceased.
The
following verdicts are returned.
1.
On count 1 (RAPE): Accused 1 is
found guilty as charged for the rape of the deceased, V[…]
J[…].
2.
On count 1 (RAPE): Accused 4 is
found guilty of rape of the deceased, V[…] J[…].
3.
On count 2 (RAPE): Accused 1 is
found guilty as charged for the rape of the deceased, V[…]
J[…].
4.
On count 2 (Rape) Accused 4 is found
not guilty of the rape of the deceased, V[…] J[…].
5.
On count 3 (MURDER): Accused 1 and 4
are found not guilty of the murder of the deceased, V[…] J[…].
6.
Accused 2, 3, and 5 are found not
guilty on all the counts and are discharged.