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1984
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[1984] ZASCA 26
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S v Lackay (23/84) [1984] ZASCA 26 (26 March 1984)
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
SAMUEL LACKAY Appellant
and
THE STATE Respondent
CORAM: VILJOEN, JA, HOWARD et HEFER, AJJA HEARD: 21 FEBRUARY 1984 DELIVERED:
26 MARCH 1984
JUDGMENT
VILJOEN,JA
During March 1982 the appellant, (as accused 1) appeared with
three others, Isak Prins
(accused /
2.
(accused 2), Justice Lackay (accused 3) and Abraham Simons
(accused 4) in the Graaff-Reinet Circuit Local Division before Solomon
J and two
assessors on a charge of murder. It was alleged that on or about 13 February
1981 they murdered one Stephen Smit (hereinafter
referred to as the deceased) in
or near Cradock. Accused 3, a younger brother of the appellant, was found not
guilty and discharged
but the appellant whose age is reflected on the charge
sheet as 24 years, accused 2, a sixteen year old youth, and accused 4, nicknamed
Habu, a youth of 14 years of age, were convicted. No extenuating circumstances
having been found in the appellant's case,
he /
3.
he was sentenced to death. Accused 2 was sentenced to five
years imprisonment, the whole of which term was suspended for five years
on
certain conditions. Accused 4 was sentenced to four years, the whole of which
term was likewise suspended on similar conditions.
On 10 September 1982 and at
Grahamstown applications were made on behalf of the appellant before Solomon ],
firstly, for leave to
appeal against his conviction and sentence; secondly, to
lead further evidence and, finally, for a special entry to be made in terms
of s
317 of Act 51 of 1977. Solomon J refused all three applications. However, on 1
March 1983 this Court granted the appellant leave
to /
4.
to appeal against the conviction of murder and the finding
that there were no extenuating circumstances and referred the applications
to
lead further evidence and for a special entry to be made to this Court with a
recommendation that the appeal and the two applications
be heard simultaneously.
On this basis the matter was argued before this Court.
The deceased met his
death in the Coloured township of Michausdal, Cradock, on the night of 13
February 1981. The evidence presented
by the State may be summarised as follows.
The deceased and one Klaas Rondganger, both young men, had had a few drinks at a
shebeen
and were
proceeding /
5.
proceeding homewards on foot along Charles Street which runs
roughly from south to north. At a spot more or less opposite the house
of the
Solomons family, of which the State witness Eugene Solomons was a member, the
appellant, who was driving a bakkie with a canopy
on the back, drove this
vehicle straight at the deceased and Rondganger where they were walking off the
road. He stopped close to
them and an argument ensued between the appellant and
the deceased. After some verbal exchanges the appellant got into his vehicle
and
drove back the
way he had come. He returned shortly thereafter with a
number of passengers in his vehicle. He stopped the
vehicle /
6.
vehicle near the deceased and Rondganger who had by that time
proceeded as far as the corner of Charles and Hilary streets. The appellant
and
accused 3 alighted and started attacking the deceased, accused 3 with a spade
and the appellant with a weapon which looked like
an iron bar. The deceased was
struck down twice but each time got up and tried to flee. At about the time he
was struck down the
second time a car came down Hilary street. The deceased fled
up Hilary street with the appellant and accused 2 and 4 in hot pursuit.
Accused
3 returned to the bakkie and drove it in the direction in which the others were
running. When the deceased reached Eugene
street /
7.
street which runs parallel to Charles street he turned left
and ran for a short distance before turning right into Aiken street. On
the
south-eastern corner of Eugene and Aiken streets, while being pursued by the
appellant and accused 2 and 4 and shortly before
accused 3 drove up Aiken street
in the bakkie, the deceased scaled a fence, ran into a private yard and
disappeared out of sight
of his pursuers. Accused 3 drove the bakkie and the
appellant and accused 2 and 4 ran up Aiken street to the corner of Lynley street
where the bakkie stopped. When the appellant and accused 2 and 4 arrived all
four accused stood discussing the disappearance of the
deceased./
8.
deceased. Accused 3 got into the bakkie once more, drove round
the corner of Lynley street for a short distance, stopped again and
waited,
talking to the other accused who were walking up and down in that vicinity
looking for the deceased who at that moment lay
hidden underneath a motor
vehicle parked in the driveway of private premises facing Lynley street. While
the appellant and accused
2 and 4 were still searching the area the deceased
suddenly emerged from his hiding place and decided to make a dash for safety
across
Lynley street to the east to an open stretch of ground between Lynley and
Derick streets. He was, however, noticed by his
pursuers /
9.
pursuers who immediately gave chase. Accused 2 was the first
to catch up with him and started hitting him with what appeared to the
State
witnesses to be an iron bar. The appellant and accused 4 who were not far behind
pelted him with stones. Under this onslaught
the deceased collapsed in a shallow
foundation trench where his pursuers proceeded to assault him severely, accused
2 hitting him
repeatedly with the iron bar mostly over his head, and the
appellant and accused 4 stoning him. Eventually accused 2, who had at
some stage
in the course of the events sustained a severe cut to his left arm, desisted and
turned away. Accused 4
also /
10.
also stopped, and it was the appellant who delivered the coup
de grace by picking up a large stone and hurling it with force at the
deceased's
head. When the stone landed the witnesses heard a cracking sound. The appellant
was thereafter heard to say:- "Nou is
ek tevrede die vark is vrek." The bakkie,
driven by-accused 3, arrived on the scene at that moment and all four accused
left the
scene in the bakkie and drove to the Lackays' shop. Thereafter
appellant and accused 2 and 4 drove to the hospital where the wound
to the
second accused's arm was attended to and sutured. While they were still at the
casualty section of the hospital Sergeant Erasmus
arrived to arrest them. When
questioned
as /
11.
as to what weapon they had used upon the deceased a kierie,
the knob of which was covered with blood, was produced from the van and
pointed
out to Erasmus as the weapon used.
Sergeant Mongie who arrived on the scene
soon after the assault picked up a knife close to the dead body of the deceased.
This, inferentially,
was the knife with which the deceased caused the injury to
the second accused's arm. Dr Schoeman who conducted the post mortem examination
on the accused testified that there were numerous injuries to the head. Death
was caused by cerebral haemorrhage and a fracture of
the skull, he said. The
doctor found no fewer than eleven lacerations
on /
12.
on the head and a depressed fracture of the occipital
region of the skull. The skull fracture was consistent
with a large stone
having been dropped onto the head from
a considerable height or hurled at it with brute force,
he said. The
kierie which, according the accused, was
used on the deceased was shown to the doctor when he was
cross-examined by
counsel for accused 2. The following
questions and answers were
recorded:-
"Sou dit moontlik wees om die fraktuur soos u aangedui het wat die skedel
ingeduik het, sou dit moontlik die gevolg kon wees van 'n
aanval met 'n kierie
so dun soos hierdie, of sou u verwag dat dit 'n groter en swaarder
instrument
sou wees? Ek sou regtig verwag dat dit 'n
groter en swaarder voorwerp moes gewees het.
Sou /
13.
Sou dit moontlik wees ... (tussenbei) ...
Dit is moontlik om'n skedefraktuur te bewerk-stellig met 'n kierie van
daardie aard, maar weens die grootte van die fraktuur sou ek
per-soonlik verwag
dat dit 'n groter voorwerp ...
(tussenbei) .. Dit is nie onmoontlik nie,
maar ek sou se dit is onwaarskynlik.
Onwaarskynlik dat 'n skedelfraktuur soos hierdie
met 'n kierie ..
(tussenbei) .. Dit is korrek.
Sou dit eerder strook met die toedien van 'n
klip wat gegooi word van 'n
staande posisie op
die hoof van die slagoffer wat op die grond
le? 'n
Redelike groot klip, ja."
The appellant's evidence was that he
and
accused 2 and 4 were on their way
to deliver groceries
at a certain address in the neighbourhood when they came upon one person who
was walking in Charles street blocking
the /
14.
the way of the bakkie. He hooted and stopped because he
feared that if he drove past the pedestrian,who later turned out to be the
deceased, the latter might get injured by getting in the way of the vehicle. He
and accused 2 alighted from the bakkie — he
to remonstrate with the
deceased and accused 2 as an interested onlooker. While the two of them were
standing next to the bakkie
the deceased took one step backwards and suddenly
advanced
lunging at him with a knife in his hand. The appellant
jumped out of the way but accused 2 was not quick enough
and got stabbed in the arm by the deceased. Accused 2
took a kierie from the bakkie and, followed by accused 4,
chased /
15.
chased after the deceased who had taken to his heels. After
having driven the bakkie off the road the appellant followed on foot,
his main
concern being the safety and welfare of accused 2 who had been badly injured. He
denied that he threw stones at the deceased
and denied that he picked up and
dropped a large stone on the deceased's head. All he did was to grab hold of the
arm of accused
2 and enquire about the injury to his arm.
Accused 2 in some
respects corroborated the evidence of the appellant and in other respects that
of the State witnesses. The evidence
of accused 4 was
substantially /
16.
substantially consistent with the evidence of the appellant
but he also corroborated the evidence of the State witnesses in a few
minor
respects.
The Court a quo had considerable hesitation in accepting the
evidence of Rondganger but did accept, since it was confirmed, that there
was
some altercation between the deceased and some or other of the accused at the
corner of Charles and Hilary streets and that a
chase
followed. The Court
appears not to have accepted Rond-
ganger's evidence that the deceased was
attacked with a spade by accused 3 and also appears to have been sceptical about
his evidence
that the deceased's assailants numbered
ten /
17.
eight to ten persons. He accepted the evidence of three young
women, Elizabeth Holster, Rochelle van Dyk and Catherine Grobbeiaar,
with regard
to the final stage of the events. Elizabeth Holster was the witness who told the
Court that she saw the deceased hiding
underneath the car while all the accused
were looking for him in the area; she also saw him, she told the Court, leave
his hiding
place to make a dash for safety. Rochelle van Dyk and Catherine
Grobbelaar told the Court that they were close to the scene of the
killing,
witnessed the assault by all three (the appellant and accused 2 and 4) upon the
deceased and the dropping of the big stone,
the /
18.
the size of which they described as that of a rugby
ball,
onto the head of the deceased by the appellant. Both
of them said
they heard a cracking sound when the stone
came into contact with the head of
the deceased. The
learned Judge remarked that all three of these young
women
impressed the Court as being absolutely honest. The
evidence of
Rochelle, who is a young girl, was corro
borated in all material respects by
that of Catherine
Grobbelaar and the evidence of both of them was
entirely
consistent with what was found at the scene of the crime,
and to
a considerable degree with the evidence of the
accused themselves, the Court
held. The minor dis
crepancies /
19.
crepancies between the evidence of Rochelle van Dyk and
Catherine Grobbelaar were, in the Court's view, not significant. Catherine
Grobbelaar was described by the learned Judge as one of the most impressive
witnesses to have appeared before him in years. Wendy
Basson was the witness who
told the Court that she was a passenger in the car which came down Hilary
street. She recognised the appellant
both visually and by his voice when he ran
past the car in pursuit of the deceased. The learned Judge said that this was
important
because the appellant denied that he saw that car and also denied that
he was running with the group of persons.
The /
20.
The presence of the appellant in Hilary street as one of
those chasing the deceased was subsequently confirmed by accused 2 and 4,
the
Judge sand. It seemed to the Court to be immaterial whether the weapon which was
used by accused 2 upon the deceased was the
kierie handed to the police or some
other weapon. The learned Judge analysed the evidence of the appellant and said
that the Court
found that none of it was convincing or acceptable. The Court
found the appellant to be an unconvincing witness and where there was
a conflict
between his evidence and that of the young women, the learned Judge said, it had
no hesitation in rejecting his evidence
in favour
of /
21.
of theirs. The Court held accused 2 to be an unprepossessing
and unconvincing witness and accepted the young womens' evidence rather
than his
where it con-, flicted with their evidence. By the time accused 4 had concluded
his evidence the Court had come to the conclusion
that he was a consummate
liar.
In support of the application to lead further evidence the appellant
submitted to this Court, as he did to the Court a quo, a number
of affidavits
including one made by Catherine Jacobs, another by Julie Plaatjies and a third
by Felicity Pieters. Catherine Jacobs,
27 years of age, who lives in Michausdal,
Cradock, deposed in her affidavit that about 2 weeks prior to the
hearing /
22.
hearing of the matter in Graaff-Reinet she was at the house
of Julie Plaatjies in 17 Derick Street, conversing with Julie in her kitchen,
when Rochelle van Dyk came there and told them that she was extremely worried
because her train ticket to Graaff-Reinet, where she
was due to give evidence
for the State against the appellant and the other accused, had arrived. She told
them that she was reluctant
to testify but that the investigating officer,
sergeant Van Jaarsveld (nicknamed Tarra) had forced her to do so and that he had
gone
so far as to threaten that he would lock her up if she refused to testify
that the appellant
was /
23.
was present at the scene of the death of the deceased. Julie
asked Rochelle whether the appellant really had anything to do with the
death of
the deceased. Rochelle in reply gave Julie the assurance that the appellant was
not involved at all. She told them that
Sakkie (accused 2) hit the deceased with
a kierie. Tarra however told her that she should testify that Sakkie attacked
the deceased
with a piece of iron and that the appellant threw a big stone at
his
head. Rochelle emphasised that that was not what
really happened. The
discussion was at that stage terminated by Julie's sister-in-law who called
them.
After /
24.
After the hearing she met Rochelle in the library one Monday
and confronted her with the fact that she had not testified in accordance
with
what she had told them. Roche lie's response was to look away and to say:- "Kom
ons los daardie dinge." Julie Plaatjies, in
her affidavit, corroborated the
statement of Catherine Jacobs as to the incident at her house. Felicity Pieters
deposed in her affidavit
that late on Friday afternoon, the day of the death of
the deceased, she assisted in the Lackays' shop making up parcels which had
to
be delivered that night at 17 and 19 Eugene street. She went off duty at 19h00
leaving two other girls Sonnet and
Bennonita /
25.
Bennonita on duty at the shop. The appellant took her
home.
Eugene Llewellyn Moss, an attorney's clerk, referred in an affidavit
made by him to a previous case heard in Graaff-Reinet during
December 1981 in
which the appellant and his father Sam Curry stood trial on a charge of murder
of one Albert Holster. According
to Moss Holster had met his death in an attempt
to avenge the death of the deceased Stephen Smith. It became clear in that case,
he deposed, that a personal vendetta was being waged by detective sergeant Van
Jaarsveld, the investigating officer in that as well
as the present case,
against the
Lackays. /
26.
Lackays. Moss suggested in his affidavit that, if the
application to lead further evidence was granted, Van Jaarsveld be called to
give evidence and to explain his conduct in the previous case in the light of
what Eksteen J said in his judgment in that case.
Another affidavit in
support of the application to call further evidence and for a special entry was
one made by Katie Violet Simons,
the mother of accused 4. She stated that on
Sunday 15 February 198 1 she and her late husband took their child, accused 4,
to the
police station as they were told to do by Van Jaarsveld (Tarra). In their
presence Van Jaarsveld questioned accused 4 and
asked /
27.
asked him what had happened on Friday night, 13 February.
Accused 4 told Van Jaarsveld that Isak Prins (accused 2) had chased the
deceased, and that he had followed; that at the scene of the killing Isak had
hit the deceased with a knob kierie while the latter
lay on the ground; and that
when he, accused 4, came on the scene he tried to stop accused 2 from further
assaulting the deceased
but only succeeded in doing so when the appellant came
to his assistance. Van Jaarsveld did not accept what accused 4 told him; in
fact, he told him in foul language not to talk nonsense and offered to make him
a state witness if he was prepared to testify that
the appellant
and /
28.
and accused 3 had killed the deceased. When she, the
deponent, tried to intervene, Van Jaarsveld abused them and locked her son,
accused
4, up. He was only released in her care the next day. She deposed
further that she attended the trial at Graaff-Reinet. While sitting
in court she
noticed that while the State witnesses were being cross-examined, Van Jaarsveld
repeatedly left the court room.
Opposing affidavits were filed. Van Jaarsveld
denied the veiled allegations against him of waging a vendetta against the
Lackays,
and denied having done anything irregular in the course of the
two /
29.
two trials. Brenda Lettering made an affidavit dealing with
the occasion when Roche lie van Dyk went to the house of Julie Plaatjies
to
deliver a skirt to Brenda who was also staying at that house. She stated that
she heard Rochelle van Dyk talking in the kitchen
to Julie Plaatjies, but she
could not make out what they were saying. Julie Plaatjies never told her,
however, she deposed, that
Rochelle van Dyk told her that Van Jaarsveld had
coerced her to give false evidence against the appellant. Rochelle van Dyk
herself
made an affidavit, denying the allegations made by Julie
Plaatjies /
30.
Piaatjies and Catherine Jacobs. She went to the library one
day about a month before the court case, she deposed, when Catherine Grobbelaar
told her that Julie Plaatjies wanted to talk to her. She did go to Julie
Plaatjies's house one night to deliver a skirt to Brenda.
Julie Plaatjies told
her that accused 3 wanted to talk to her about the murder case. He wanted to
know what she had told the police
about his own involvement in the case. Julie
suggested that a meeting at her house be arranged between Rochelle and accused
3. She
(Julie) never spoke about the appellant. Rochelle stated that she was
reluctant to speak to accused 3 because she feared that the
Lackays /
31.
Lackays might assault her. What she testified to in court was
the truth, she deposed. She did meet Catherine at the library thereafter,
on
which occasion Catherine asked her why she had lied in court. She told Catherine
she had spoken the truth.
Counsel for the appellant submitted that the Court
a quo should have allowed further evidence to be led because the contents of the
affidavits of Catherine Jacobs, Julie Plaatjies and Felicity Pieters satisfy the
requirements of s 316(3) (a)-(c) of Act 51 of 1977
which provides:-
"When in any application under subsection (1) for leave to appeal it is shown
by affidavit -
(a) /
32.
(a)
that
further evidence which would presumably be accepted as true, is
available;
(b)
that if accepted the evidence
could reasonably lead to a different verdict or sentence;
and
(c)
save in exceptional cases, that there
is a reasonably acceptable explanation for the failure to produce the evidence
before the close
of the trial,
the court hearing the
application may receive that evidence and further evidence rendered necessary
thereby, including evidence in
rebuttal called by the prosecutor and evidence
called by the court."
The application cannot succeed. In my view no reasonably acceptable
explanation has been offered for the failure to produce this evidence
at the
trial. Moss might have been unaware thereof but it is hardly likely that, if
there
was /
33.
was any truth in the averments made by Catherine Jacobs and
Julie Plaatjies, the Lackays and particularly the appellant and accused
3, his
brother, would not have been aware thereof before the trial. There is no
allegation that for some reason or other Catherine
Jacobs and Julie Plaatjies
refrained from telling the Lackays about Rochelle van Dyk's perfidy.
It does
not seem to me, furthermore, that the evidence tendered would presumably be
accepted as true. The depositions of Catherine
Jacobs and Julie Plaatjies are
disputed by Rochelle van Dyk and the Court a quo found her to be a good and
honest witness. Felicity
Pieters is allegedly the girl friend of the
appellant.
In /
34.
In any event, I fail to see that what she said in
her
affidavit could, whether standing by itself or read with
the contents
of any other affidavit, lead to a different
verdict. The Court a quo treated
the evidence of
Klaas Rondganger with caution, but Rondganger's
evidence
that the appellant left the scene of the first alter
cation to
return shortly thereafter with a number of
henchmen was corroborated by the
young Eugene Solomons.
It was never put to either Rondganger or Solomons that
that
was not the truth. The appellant, therefore, returned
with the
intent, clearly, of doing the deceased physical
harm and his evidence that he
was driving along peace
fully /
35.
fully on his way to deliver groceries is unacceptable. The
proposed evidence of Felicity Pieters cannot, in my view, affect the case
of the
appellant at all.
The same applies to the proposed evidence of Catherine
Jacobs and July Plaatjies. Even if Rochelle van Dyk's evidence is ignored as
to
what happened in the final stages of this drama, there would still remain the
evidence of Catherine Grobbelaar who was described
by the learned Judge a quo as
an excellent witness. True, she would then be a single witness on the final
assault upon the deceased,
but there is an abundance of evidence from other
witnesses that the appellant was not
the /
36.
the innocent also-ran that his evidence suggests, who was
intent only upon ensuring that accused 2 did not,
in the seriously wounded condition in which he was, exert himself
unduly.
The application for a special entry relates to Van Jaarsveld's
alleged interference with State witnesses while they were giving evidence,for
which counsel claims to find some confirmation in Van Jaarsveld's conduct at the
previous trial at Graaff-Reinet. In the course of
the later trial counsel for
appellant and accused 1 and 3 brought to the attention of the Court a quo
certain irregularities allegedly
committed by
Van /
37.
Van Jaarsveld about which he and counsel appearing for
accused 2 were concerned. What happened is recorded as follows :-
"MR QINN ADDRESSES COURT
I would just very much like at this stage My Lord, to make objection to your
Lordship, I speak also on behalf of my learned friend.
We are rather concerned
that the investigating officer in this case, Sergeant Van Jaarsveld, who is
sitting alongside my learned
friend, has been moving in and out of the court
during the course of yesterday and during the lunch
adjournment. My learned friend and I had to restrain him when he was talking
to the witness who was yet to be cross-examined. When
your Lordship adjourned
for lunch he and the witness got together at the back of the court alone and I
had to ask him to please desist
from doing that.
I would just like to place this on record. It is, it will be part of the
defence case that there is a grudge between the investigating
officer /
3S.
officer and the Lackay family. And for
that reason it is of considerable significance.
I would submit with respect.
And, I would ask your Lordship to direct the investigating officer to desist
of this practice of moving in and out of the court.
COURT:
I can't tell the investigating officer not to walk in and out of the court,
Mr Quinn. This is part of his job.
MR QUINN
Well my Lord, the witnesses for the State will gather on that side of the
building and my learned friend and I are concerned. There
was one incident
yesterday My Lord, when your Lordship may recall when we were discussing the
size of the stone that was thrown on
the deceased's head, your Lordship
suggested to the witness that the stone was as big as a rugby ball.
The next witness who was called, volunteered of
her /
39.
her own account that the stone was the size of the rugby ball. Now this may
be coincidence. But these are the kind of features that
had given my learned
friend and I cause for concern. And that is for that reason that I mention this
to your Lordship.
MR KINGSLEY IN REPLY ADDRESSES COURT
This was brought to my attention by both my Learned friends for the defence.
I have taken the matter up with the investigating officer.
He informs me that he
did not at any stage discuss with the witnesses what had been said in court.
Yesterday's situation at lunch
time. I had informed the witness who was still in
the witnessbox at that stage not to speak to anybody about what she had said and
1 have the assurance from the investigating officer thereto. That he did not
speak about the case with her. She was on her own in
the Court at that stage
when he went to sit with her.
As far as the rugby ball is concerned My Lord, it would may have been of any
assistance, this in fact was stated in consultation by
both the witnesses long
before either of the
two /
40.
two witnesses went into the witnessbox. And this was
individually given to me as an approximation of the size.
COURT
I just want to say this that if it should come to my attention that there has
been any interference with the witness, whether adversely
or beneficially by any
person whether he be an official or not, I will take the strongest action
against him."
S 317(1) of Act 51 of 1977 provides that if an accused thinks that any of the
proceedings in connection with or during his trial before
a superior court are
irregular, he may apply for a special entry to be made on the record stating in
what respect the proceedings
are alleged to be irregular. Such special entry
shall,
upon /
41.
upon such application be made unless the court to whom the
application is made is of the opinion that the application is not bona
fide or
that it is frivolous or absurd or that the granting of the application would be
an abuse of the process of the court.
The learned Judge a quo found that the
application was indeed frivolous. He dealt with the alleged conduct of Van
Jaarsveld in the
previous case in the context of the application to lead further
evidence and remarked that he had read the judgment delivered by
Eksteen J in
that case and that he could find no reference whatever to any stricture made by
the Judge about the
conduct /
42.
conduct of Van Jaarsveld. Certain passages were
read to us in this Court, but in none of those was any men-tion made by the
learned
Judge of any irregularity committed by Van Jaarsveld. The passages read
to us contain remarks made by Eksteen J about the language
used by the State
witnesses to describe certain events in suspiciously similar language. There is
no indication whatsoever that Van
Jaarsveld had primed these witnesses. The
description by Catherine Grobbelaar and Rochelle van Dyk of the rock used by the
appellant
as being as big as a rugby ball was dealt with by the learned Judge a
quo as follows:-
"It /
43.
"It appears from the record that I suggested to the witness
Van Dyk, who had demonstrated the size of the stone that it was 'so groot
soos
'n rugbybal'.
Grobbelaar in giving evidence said 'Samuel het 'n groot klip soos 'n rugbybal
opgetel en op die oorledene se kop gegooi'. That is
the extent of the
evidence."
The learned Judge a quo expressed the view that the submission that Catherine
Grobbelaar used the precise vernacular used by him during
the testimony of
Rochelle van Dyk seemed somewhat to overstate the position. The further
submission that Van Jaarsveld had during
the course of the hearing continually
departed and entered the court room in circumstances
suggesting /
44.
suggesting a possible improper communication of information
to State witnesses waiting to give evidence was, in the learned Judge's
view, a
reckless allegation wholly unsupported by any evidence whatsoever. The learned
Judge considered that the application was,
in the absence of any factual
foundation for the allegations and in the face of the specific reply given by
the prosecutor in court,
frivolous. There is not the slightest acceptable
evidence, said the learned Judge, of any attempt on the part of Van Jaarsveld to
influence any of the witnesses who gave evidence for the State. The accusations
are purely inferential or hearsay and the
inferences, /
45.
inferences, though not beyond the bounds of possibility, are
highly improbable, he said. He pointed out that the only specific allegation
with regard to the evidence given by the State witnesses is that relating to the
description of the rugby ball used by Catherine
Grobbelaar when she gave
evidence after Rochelle van Dyk, but it is significant, he said, that no
suggestion is made that Catherine
Grobbelaar was approached by Van Jaarsveld,
much less that her evidence was influenced by him. He stressed that she gave her
evidence
after Rochelle van Dyk.
I fully agree with the learned Judge's reasoning. I have consequently not
been persuaded that
the /
46.
the learned Judge a quo erred in refusing to make the special
entry. The application for a special entry cannot succeed.
The argument
advanced on the appeal itself has substantially been dealt with by me in my
consideration of the applications to lead
further evidence and for a special
entry to be made. Largely the same ground was covered. It remains to deal with
two submissions.
One which counsel for the appellant made with seeming
confidence is that Rochelle van Dyk's and Catherine Grobbelaar's evidence about
the throwing of the big stone at the deceased's head cannot be accepted because
the deceased
was, /
47.
was, according to the evidence, lying on his back when the
stone was allegedly dropped on his head. That, submitted counsel, is not
consistent with the medical evidence that it was the occipital region of the
skull which sustained the fracture. There is no merit
in this submission. Even
on the assumption that the deceased was lying on his back, his head might have
been turned to such an extent
when the stone landed as to cause a fracture of
the occipital part of the head. For the proposition that the fracture was caused
when the head was turned some support is to be found in the evidence of
Catherine Grobbelaar who said that in trying to make the
deceased more
comfortable she
turned /
48.
turned his head straight to face upwards after the appellant
and the other accused had left. Another submission made was that Mongie's
evidence is inconsistent with a large stone having been used. The reliance by
counsel for the appellant on the evidence of Mongie
that when he found the knife
he found no large stones lying about, is equally untenable. Mongie did not look
for large stones. When
he was recalled he did produce large stones which he had
picked up at the scene of the killing. I cannot, therefore, accede to this
submission. The appellant's appeal against the conviction cannot succeed.
In support of the appeal against the finding that there were no extenuating
circumstances, counsel for
the /
49.
the appellant submitted that the Court a quo erred in finding
that the appellant was the driving force behind the attack upon the
deceased and
that it also erred in finding that the attempt to stab the appellant did not
amount to provocation. That the appellant
was the driving force behind the
attack on the deceased is clear from the evidence. What his motive was for
attacking the deceased,
who was not a regular inhabitant of Michausdal but who
only went there occasionally to visit his people, is not clear. It seems
unlikely
that the mere fact that the deceased was walking in the street blocking
the passage of the bakkie so incensed the appellant that
he went back
to /
50.
to return shortly thereafter with thugs to help him deal with
the deceased. However, whatever the cause of the friction between the
appellant
and the deceased might have been, it must be accepted that he went back to
return with the other accused. That he did not
do so was never put to Rondganger
or Eugene Solomons when they gave evidence. If the evidence of the State
witnesses was correctly
accepted, as, in my view, it
was, it is clear that he
was the instigator of the assault
upon the deceased. As far as the
provocation is concerned, he can hardly rely on the fact that he was
stabbed
at (as the learned Judge appeared to have found)
at /
51
at the scene of the second altercation. If the deceased did stab at him there
the deceased was obviously defending himself against
the attack upon him by the
appellant and others. The argument based on provocation cannot prevail. It has
not, in my view, been shown
that the Court a quo erred in not finding
extenuating circumstances.
In the result the appeal of the appellant is dismissed and the applications
for a special entry to be made and to lead further evidence
are refused.
JUDGE OF APPEAL
HOWARD, AJA - CONCUR HEFER, AJA