S v Swanepoel and Another (42/06) [2006] ZASCA 143; [2006] SCA 171 (RSA) (1 December 2006)

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[2006] ZASCA 143
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S v Swanepoel and Another (42/06) [2006] ZASCA 143; [2006] SCA 171 (RSA) (1 December 2006)

THE SUPREME COURT
OF APPEAL OF SOUTH AFRICA
NOT REPORTABLE CASE
NO: 042/2006
In the matter between
DIRK HERMANUS SWANEPOEL 1
ST
APPELLANT
LOUIS
ALBERTUS KILLIAN 2
ND
APPELLANT
and
THE STATE
RESPONDENT
CORAM: MTHIYANE JA, COMBRINCK and MALAN AJJA
HEARD: 2
NOVEMBER 2006
DELIVERED: 1 DECEMBER 2006
Summary: Appeal against conviction – Admissibility
of a pointing out and accompanying statements alleged to be tainted
by unprofessional
conduct of attorney representing appellants –
Sufficient circumstantial evidence available to link both appellants
to the crimes
charged.
Neutral Citation: This judgment may be referred to as
DH Swanepoel v The State [2006] SCA 171 (RSA).
JUDGMENT
MTHIYANE JA:
MTHIYANE JA:
[1] The first appellant, Mr Dirk Hermanus Swanepoel, and his half
brother, Mr Louis Albertus Killian, the second appellant, were
arraigned in the South Eastern Cape Local Division of the High Court
before Kroon J, (sitting with two assessors) on counts of murder
(count 1), robbery (count 2), unlawful possession of a firearm (count
3) and possession of ammunition (count 4). They were both convicted
on counts 1 and 2 and sentenced to 22 years and 10 years’
imprisonment respectively. The 10 year sentence for count 2 was
ordered
to run concurrently with the sentence imposed in respect of
count 1. In addition, the first appellant was convicted on count 3
and
4 and sentenced to 4 years’ imprisonment, and 1 year’s
imprisonment respectively. Two years of the sentence in respect of
count
4 was ordered to run concurrently with the sentence imposed on
count 1. The 1 year sentence in respect of count 4 was ordered to
run
concurrently with the sentence imposed in respect of count 3. The
appellants appeal to this Court against their convictions with
leave
of the court
a quo
.
[2] This case arose from the disappearance of Mr Lukas Albertus
Theunis Johannes Groenewald a Humansdorp businessman and the
subsequent
discovery of his body on 23 January 2002. The evidence
established that Groenewald (the deceased) had left his house on 15
January
2002 at about 13.30 in the company of an unknown man clad in
a blue overall. Before the man came to the house the deceased had
received
four calls from a cell phone number 073 1754759: two of the
calls came through to his cell phone while the other two were
directed
to the telephone at his residence. At about 14.45, the
deceased telephoned his wife from his cell phone and requested that
she give
R10 000 in cash to the man with the blue overall. Shortly
thereafter this man returned to the house now driving the deceased’s
4 X 4 bakkie. Mrs Groenewald handed him R10 000 cash in R100 notes,
after making him sign the receipt which he signed under the name
Peter Gerber. Before the man left he told Mrs Groenewald that the
deceased had purchased a bakkie at Oesterbaai and that this vehicle
had broken down.
[3] The deceased made no further contact with his wife and did not
return home that night. Mrs Groenewald reported his disappearance
to
the police and instructed a local attorney, Mr Hennie Nel, to help
search for him. Nel engaged an advocate and instructed a private
detective to assist with the search. Based on what Mrs Groenewald had
told him about the alleged purchase of a bakkie which was supposed
to
have broken down, Nel thought that the first appellant, who was a
motor mechanic, specialising in repairing starters, could help
trace
the deceased and possibly link the two men who were at the time
strongly suspected of being involved in the deceased’s
disappearance.
They were believed to have been seen driving around in
a bakkie in the vicinity of the deceased’s house at about the time
he left
his house. On 22 January 2002 Nel telephoned the first
appellant’s place of business, Pro-Diesel, and left a message for
him to
come and see him. The first appellant called at Nel’s office
whereupon Nel questioned him about the deceased’s disappearance
and
about Gerber and Jansen. To his surprise the appellant denied
knowledge of the two individuals and of the deceased’s whereabouts.
He also denied any knowledge of the 073 cell number.
[4] According to Nel’s evidence the first appellant came to his
office at about 08.00 on the next day. While Nel and the first
appellant were in the office Inspector Jancke arrived and asked the
first appellant to accompany him to the police station. During
cross-examination it was suggested that the removal of the first
appellant from Nel’s office had been pre-arranged with Nel. This
was denied by Nel. There is a dispute as to whether the first
appellant was at this point arrested or not. This was denied by
Jancke
who said that he had been told by the first appellant’s wife
that he was at Nel’s office. He went there to take the first
appellant
at the police station in Humansdorp for questioning. Later
that afternoon the first appellant telephoned Nel from the
detectives’
offices and revealed for the first time his involvement
in the deceased’s disappearance. Even at that stage Nel thought
that the
first appellant’s only involvement related to knowledge of
the whereabouts of Gerber and Jansen, and to information linking
these
two men to the deceased’s disappearance. And so, when the
first appellant asked Nel if he should co-operate with the police,
Nel
did not hesitate to suggest that the appellant should co-operate
fully with them. To Nel’s utter amazement, so he said, the first
appellant indicated that he was deeply involved in the matter and
that he wished to make a clean breast of it, in order to clear
his
conscience. At the request of Nel, Detective Inspector Pietersen had
left the first appellant alone in the office to allow them
a private
conversation. The first appellant then asked Nel if it would help him
in a bail application if he co-operated with the
police. Pietersen
confirmed that he would be prepared to give favourable evidence in a
bail application. Nel asked Pietersen to make
that clear to the
appellant. Nel indicated to the appellant however that it was up to
the court hearing the bail application to decide
whether he should be
granted bail or not. He did not give the first appellant any
assurance that he would get bail.
[5] Subsequently the first appellant made a pointing out and gave
certain incriminating statements linking him and the second appellant
to the murder and robbery of the deceased. On 23 January 2002 he went
to point out the spot where the body of the deceased was found
buried
covered with bushes and leaves. He also took the police to the spot
where the firearm, a 9mm pistol which was used in the
killing and
described in the charge sheet, was found. The weapon bore the
inscription ‘Israel Military Industries’.
[6] A post-mortem examination was performed on the body of the
deceased by the district surgeon, Dr Van der Merwe, on 24 January
2002, in the presence of Prof Saayman, a private pathologist of
Pretoria University. At the time of the trial, Dr Van der Merwe had
emigrated and was no longer available to testify. Prof Saayman,
engaged by the family, gave evidence for the State. According to
the
post-mortem report, the deceased died of a bullet wound through his
head.
[7] It is convenient to deal first with the second appellant. Mrs
Groenewald testified that the man who left with the deceased on
15
January 2002, fetched money from her and brought back the deceased’s
bakkie wore new blue overalls. He received R10 000 in R100
notes from
her. The evidence of Mr Isak Ignatius Williams was that the second
appellant was in Humansdorp at the first appellant’s
business on
the day of the deceased’s disappearance. He was given a new blue
overall jacket by the first appellant, at the latter’s
place of
business. When he left Pro-Diesel, the first appellant’s place of
business, the second appellant wore a blue overall.
Although Williams
was not a very good witness his evidence on this point is supported
by that of Mrs Groenewald, whose credibility
is beyond reproach. In
any event, the blue overall was mentioned by Williams in his very
first statement, at the stage when he could
not possibly have been
aware what Mrs Groenewald had said or that the deceased had already
been murdered. The court
a quo
cannot be faulted for accepting
his evidence on this point.
[8] Then there is the evidence of the second appellant’s
handwriting. The handwriting expert, Mr Marco von Hamman, testified
that
it was highly probable that the signature on the document in
which Mrs Groenewald made the person who fetched the R10 000 sign was
that of the second appellant. It was not put to Von Hamman that the
second appellant would deny that he appended the signature in
question. The second appellant did not take the witness stand to
dispute Von Hamman’s evidence.
[9] I turn to the evidence of the second appellant’s fingerprint
lifted by the fingerprint expert, Mr Phil Muller from the deceased’s
vehicle on 16 January 2002. The fingerprint was found on the outside
of the top corner of the left window. According to Muller the
print
was made by someone with the fingers of his right hand, as he was
probably trying to close the door from the inside. It is
not disputed
that the finger print is that of the second appellant. The only
reasonable inference that can be drawn from these facts
is that it
was the second appellant who drove in the deceased’s bakkie and
that it was he who collected R10 000 from Mrs Groenewald.
In the
absence of any evidence from the second appellant the conclusion is
unavoidable that he made common purpose with the first
appellant to
rob and murder the deceased and was therefore correctly convicted by
the court
a quo
.
[10] Mr Price, for the appellants, submitted that the second
appellant should have been convicted of robbery and not murder. I do
not agree. In his case there is not only direct evidence of his
signature and fingerprint but also strong circumstantial evidence.
The cumulative effect of all of this evidence is sufficiently
compelling to link the second appellant to the robbery and murder of
the deceased.
[11] In my view the second appellant was correctly convicted.
[12] I now turn to the first appellant. The main thrust of the first
appellant’s attack on the conviction is that the evidence
of the
pointing out and incriminating statements accompanying the pointing
out should not have been admitted in evidence at the trial.
It was
contended that this evidence was tainted and should have been
excluded in terms of s 35(5) of the Constitution. The section
reads:
‘
Evidence
obtained in a manner that violates any right in the Bill of Rights
must be excluded if the admission of that evidence would
render the
trial unfair or otherwise be detrimental to the administration of
justice.’
The
complaint is that Nel acted improperly by representing both the
deceased’s family and the first appellant. This resulted, it
was
submitted, in a conflict of interest and a violation of the
appellant’s right to a fair trial. Mr Price, submitted that Nel’s
advice that the first appellant should co-operate fully with the
police, albeit
bona fide
, led to the appellant agreeing to
accompany Superintendent Henry Trytsman to make a pointing out and to
give incriminating statements.
[13] Nel denied ever advising the first appellant to make the
pointing out or to confess to the charges he was facing. The first
appellant did not give evidence in his defence on the merits and
neither did he during the two trials within a trial, which were
held
to consider the admissibility of the pointing out and the statements
accompanying the pointing out. At the conclusion of the
two trials
within a trial evidence relating to the pointing out and the said
statements was admitted. The court found that the pointing
out and
the statements were made freely and voluntarily without undue
influence.
[14] Mr Price submitted that all the evidence of the pointing out and
the statements following Nel’s advice should have been excluded
as
it was tainted. He submitted that as soon as Nel realised that there
was a conflict of interest he should have withdrawn as the
first
appellant’s attorney. Counsel submitted that his failure to
withdraw was so prejudicial to the appellant that his right to
a fair
trial was severely compromised.
[15] Nel resolutely stuck to his view that he did not consider that
there had been a conflict of interest. Humansdorp, he said, is
a
small town and the first appellant must have known that Nel was
acting for the deceased’s family. He conceded that the deceased
was
during his lifetime, one of his biggest clients and this fact, too,
he asserted, must have been known to the first appellant.
He disowned
the first appellant as a client, stating that he only had done some
peripheral work for him in 2001. He testified that
when the first
appellant telephoned him to ask if he should co-operate with the
police, he did not regard this as creating an attorney
- client
relationship.
[16] The version advanced by Nel concerning whether or not an
attorney - client relationship existed between him and the first
appellant
is not very convincing. Clearly the first appellant thought
that Nel was his attorney, so did those who had contact with them.
The
police thought that Nel was acting for the first appellant and so
did the magistrate, Mr Hechter, to whom the first appellant was
taken
to make a confession. Nel did nothing to correct that impression.
Instead, he went ahead and took the first appellant to Mr
Hechter and
told him that the first appellant was willing to make a statement.
This was after the first appellant had initially been
taken to the
magistrate to make a statement, in the absence of an attorney. Nel
did, indeed, place himself in a position where he
gave advice to the
first appellant at a time when he knew he had instructions from the
deceased’s family. In these circumstances
the conclusion that a
conflict of interest existed is unavoidable. It is true that Nel did
not advise the first appellant to make
a pointing out and to confess.
That finding cannot be made. What he said was that the first
appellant should co-operate fully with
the police – without
elaborating on how he should do so. This advice, so closely connected
in time to the pointing out and the
statements made by the first
appellant, might be perceived to have resulted from Nel’s advice.
Nel’s failure to advise the first
appellant of his rights under the
Bill of Rights, such as the right to remain silent, in my view, left
the first appellant, who was
facing serious charges, effectively
without representation. Although Nel acted
bona fide
, the risk
of admitting evidence preceded by such conduct could well have
resulted in a failure of justice. Consequently I am prepared
to
assume in favour of the appellant that there was a conflict of
interest and that Nel should have withdrawn from the case and should
not have continued to act for the first appellant. It would therefore
not be safe to rely on the evidence of the pointing out and
the
accompanying incriminating statements as was done by the court
a
quo
.
[17] At the trial the State did not solely rely on the evidence of
the pointing out and the accompanying statements. It led other
evidence pointing to the guilt of the first appellant, which was not
challenged by the defence. In what follows I deal with it briefly.
Firstly, before the deceased left his house he received four calls
from a 073 cell number which was later identified to be that of
the
first appellant’s wife. When confronted the first appellant and his
wife denied any knowledge of the 073 number. The first
appellant’s
denial of any knowledge of the number was clearly proved to be false.
Neither the first appellant nor his wife gave
evidence to explain why
the deceased was called on the day he disappeared. There was no
suggestion by the defence that any other
person had access to the 073
number other than the first appellant and his wife.
[18] If one has regard to the time of day when the calls came
through, they tie up with the evidence given by Mrs Groenewald. The
calls from this number came through at 11.27, 11.31, 11.32 and at
12.46. The last two calls came through to the deceased’s cell
phone
number. According to Mrs Groenewald the second appellant arrived at
their house at about 13.30. He shouted outside the gate
and Mrs
Groenewald answered whereupon the deceased told his wife to let the
man in as he was expecting him. This was some 46 minutes
after the
deceased had been called from the 073 number. The printout supplied
by MTN showing the record of calls made that day including
the four
calls referred to above, indicates that the cell phone (handset) used
to make the four calls was that belonging to the first
appellant. It
would appear that the sim card with the 073 number was inserted in
the appellant’s cell phone when the calls were
made. MTN was able
to link the calls made with the 073 sim card to the first appellant’s
cell phone by means of the IMEI (International
Mobile Equipment
Identity) number 33008553300299. It seems that the IMEI number is to
the cell phone what the fingerprint marks are
to a human being. All
calls made from the first appellant’s cell phone reflect his IMEI
number. It does not matter what sim card
was used. The conclusion is
therefore unavoidable that the person who telephoned the deceased
shortly before he was fetched from
his home by the second appellant
was the first appellant. The proved facts point conclusively in that
direction.
[19] Secondly there is the evidence of blood found in the vehicle
belonging to Mrs Janeke who had taken her bakkie to the first
appellant’s
business for service. The blood was in the back of the
vehicle and on the mattress in the back. The DNA analysis established
that
this was primate blood. This evidence was not challenged. The
evidence suggests someone who was bleeding must have been in the back
of Mr Janeke’s bakkie. There is no explanation from the first
appellant as to how primate blood got onto the vehicle that was sent
for a service on the same day that the deceased disappeared.
[20] Prof Saayman said that the deceased was shot with either a 9mm
or 7.65mm pistol. Vermeulen, an admitted acquaintance of the
first
appellant, testified that in November 2001 he had handed a 9mm pistol
bearing the words ‘Israel Military Industries’ to
the first
appellant. This evidence shows that the first appellant was in all
probability in possession of a firearm at about the
time of the
deceased’s death.
[21] There is also the evidence of Mrs Groenewald that the man with
the blue overall, who, as I have found, was the first appellant’s
half brother, the second appellant, received R10 000 in R100 notes
from her. On that very day the first appellant’s wife who works
for
the first appellant at his business deposited R6000 in R100 notes,
after making arrangements with Mrs Walters of First National
Bank to
make the deposit after hours.
[22] As
already pointed out Williams testified that it was the first
appellant who gave the second appellant the blue overall. All
of
these pieces of evidence in my view sufficiently link the first
appellant to the murder and the robbery even without reference
to the
pointing out and any confession that the first appellant might have
made.
[23] All the evidence taken together lead to a compelling conclusion
that the first and second appellants worked hand in glove in
the
murder and robbery of the deceased. The following passage in DT
Zeffertt et al
The South African Law of Evidence
(at page 94)
is apposite:
‘
Circumstantial evidence is popularly supposed by
laymen to be less cogent than direct evidence. This is, of course,
not true as a
general proposition. In some cases, as the courts have
pointed out, circumstantial evidence may be the more convincing form
of evidence.
. . . there are cases in which the inferences will be
less compelling and direct evidence more trustworthy. It is therefore
impossible
to lay down any general rule in this regard. All one can
do is to keep in mind the different sources of potential error that
are
presented by the two forms of evidence and attempt, as far as
this is possible, to evaluate and guard against the dangers they
raise.’
(See also
Mcasa v The State
,
Case No 638 of 2002,
unreported judgment of this Court delivered on 15 September 2003 at
para 8).
[24] The appeals of both the first and the second appellants are
accordingly dismissed.
_______________________
KK MTHIYANE
JUDGE OF
APPEAL
CONCUR:
COMBRINCK
AJA
MALAN AJA