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[2009] ZAGPPHC 295
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Monare and Another v S (A267/2008) [2009] ZAGPPHC 295 (6 August 2009)
SAFLII
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
AND SOUTH GAUTENG HIGH COURT. PRETORIA)
DATE:06/08/2009
CASE
NO.: A267/2008
In
the matter between:
LUCAS
MONARE
1
ST
APPELLANT
YUNUS
HESKE
2
nd
APPELLANT
And
THE
STATE
RESPONDENT
JUDGMENT
PRINSLOO.
J
[1]
This is an appeal to the full court of this division against the
judgment by MOSHIDI, J, sitting with an assessor in the Vereeniging
Circuit Court.
Before
us Mr Tshabalala appeared for the first appellant, Mr Van Vuuren SC
for the second appellant and Mr Roberts for the State.
Introduction
[2]
It was a lengthy trial which ran over a number of days during
different sessions. The record comprises ten volumes consisting
of
over 1000 pages.
[3]
At the end of the trial, both appellants were convicted on three
counts of murder, one count of robbery with aggravating circumstances
and one count of kidnapping. In addition, the first appellant was
convicted of contravening sections 3 and 90 of Act 60 of 2000
in that
he unlawfully possessed a firearm and ammunition.
[4]
On each of the three murder counts, both appellants were sentenced to
life imprisonment. In respect of the robbery count, they
were both
sentenced to fifteen years imprisonment and in respect of the
kidnapping they were both sentenced to five years imprisonment.
In
addition, the first appellant was sentenced to three years and one
year imprisonment respectively in respect of the firearm
and
ammunition charges.
[5]
For the sake of brevity, I shall refer to the first appellant as
“number 1” and to the second appellant as “number
2”.
[6]
The appeal came before us with the leave of the court a quo in
respect of both convictions and sentences.
The
three deceased persons
[7]
The deceased were G.J.B., Q.G.B. and J.D.W.
[8]
It is common cause that the charred bodies of all three the deceased
were discovered by the police on 13 January 2004, a Tuesday,
in the
veldt at a deserted spot near Elandsfontein which is in the vicinity
of Ennerdale and Lenasia in the Vereeniging district.
[9]
The three bodies were lying next to and against each other with the
hands tied behind the backs. The post-mortem evidence, which
is not
in dispute, indicates that all three died from a single gunshot wound
to the head. They were first killed in this way, before
they were
dowsed with petrol and set alight.
[10]
The first mentioned deceased, referred to by all the witnesses as
“O.A.”, was the father of the second deceased
(“Q.”)
and the third deceased (“W.”) was the bodyguard of O.A.
All three of them stayed in O.A.’s
house in K [……].
W […] had also reached a relatively advanced age by the time
of his death, and was no longer
the classic powerful bodyguard that
one might imagine. Q was a cousin of number 2, so that Q and O.A.
were related to number 2
during their lifetime.
[11]
On a general reading of the papers, it is clear that O.A. had been a
shrewd businessman and had been known to get involved
in unlawful
activities. He was also a feared individual, and not someone to be
messed around with.
A
brief sketch of the basic storyline and the dramatis personae
[12]
The evidence in this case contains a mass of factual allegations
relating to meetings, dates, times, relationships and the
like. In my
view, it is neither practicable nor required to revisit and
scrutinise the testimony of each and every witness who
gave evidence.
A lengthy and detailed judgment was given by the learned judge a quo.
[13]
Under this subheading, an attempt will simply be made to sketch, in
broad terms, the basic storyline and the parameters within
which the
drama unfolded (or may have unfolded, depending on which version is
to be preferred) which led to the death of the three
deceased.
[14]
The main state witness was one J.S. (“S.”). He gave
evidence as an accomplice in terms of section 204 of Act 51
of 1977,
and he was repeatedly given the appropriate warning during the course
of the trial by the learned judge.
[15]
In very broad terms, S’s version amounted to the following: he
knew number 1 and number 2 and had on previous occasions
been
involved in criminal activities with them. In December 2003, the
three of them started conspiring to rob O.A. of an amount
of money by
using a so-called “knock scheme”. According to S., the
essence of a “knock scheme” is that
“you let people
believe in one thing when you are actually doing another”. A
fourth participant in this conspiracy
was another acquaintance, one
Arrie, also known as Lala (“Lala”).
The
“knock scheme” would amount to the following: O.A. would
be approached on the basis that Lala was a foreigner who
had entered
the country illegally. He required documentation to enable him to
stay in the country. He was in possession of a large
sum of American
Dollars which he was prepared to exchange at a very favourable rate
(something like to 3 to 1) as a quid pro quo
for the papers. O.A.,
who was very fond of money, would find this proposition attractive.
O.A. had many contacts who could produce
the necessary papers. O.A.
would then be enticed to bring the South African currency which was
to be exchanged at the favourable
rate for the dollars, to the home
of number 2, who was in any event a distant relative, and during the
visit S and number 1 would
come from outside, overpower O.A. and
whoever accompanied him and rob him of the money.
During
the course of late 2003, early 2004, O.A. was approached and showed a
keen interest in the transaction. A few dollars were
shown to him as
“samples” of the money which Lala had on offer. O.A. also
offered to present Lala with a coffee shop
that he owns as part
payment for the foreign currency. Some of the meetings which had been
arranged did not come to fruition, but,
finally, it was arranged that
O.A. would bring the money to the house of number 2 on Thursday 11
January 2004 where the transaction
would be clinched. The plan was
that S and number 1 would wait at nearby premises, and when they
observed O.A.’s motor vehicle
passing by on its way to the home
of number 2, they would later follow them and perpetrate the robbery.
Lala and number 2 would
be waiting at the latter’s house to
receive O.A. and his companions and, has a sham, S and number 1 would
also hold up Lala
and number 2 as perceived fellow victims of O.A.
and his party.
On
the appointed day, 11 January 2004, S and number 1 were waiting at
the appointed premises and S saw a maroon Almeira vehicle,
which he
had spotted earlier in the garage of O.A., passing by, carrying who S
considered at a distance to be O.A., Q and a third
person. Before S
and number 1 could pounce, they were notified by telephone that the
deal was off, because O.A. had brought too
little money.
[16]
It was then arranged that the deal would be concluded the next day,
12 January. On the 12
th
, S and number 1 were again waiting
for the victims to pass by on their way to number 2. This time O.A.
and his party passed by
in a white BMW (“the BMW”).
After
a while, S and number 1 departed to the house of number 2 to execute
the robbery. S was armed with his 9mm Norinco firearm
and number 1
had a “357” revolver.
They
entered the premises of number 2, found Q and Williams outside,
overpowered them, and took them inside where they found O.A.,
Lala
and number 2 as planned. They were all held up with the firearms and
their hands were tied behind their backs. They were blindfolded.
Those that S tied up, he tied up with the wire from wire clothing
hangers.
Afterwards
Lala and number 2 were untied. Unfortunately, the operation took a
turn for the worse when O.A.’s blindfold came
off and he saw
what was going on. With the sham having been exposed to the dangerous
Uncle Allie, it was decided during a discussion
between the
perpetrators that O.A. and his companions would have to be killed.
The
BMW was driven off and parked near a nearby pharmacy. S himself took
the BMW to the pharmacy, wiped off any fingerprints, activated
the
alarm and was picked up by number 1 in the latter’s Microbus.
In this vehicle they returned to number 2, Lala and the
victims who
were still tied up.
When
it became dark, they loaded the victims into the kombi and number 1,
accompanied by S and Lala, drove the victims to the deserted
spot
near Elandsfontein in the Vereeniging district where they were to be
executed. On the way, they met number 2 who gave them
two containers
of petrol which was to be used as part of the execution process.
Number
2 then went back to “clean up the house” and S, Lala and
number 1 proceeded to the deserted spot which was chosen
by number 1.
At this place, the three victims were taken from the Microbus, lined
up, and number
1
shot them each in the back of the head.
After they were killed, Lala and S dowsed the bodies with petrol and
the bodies were set
alight. The three murderers left the scene.
Shortly
after the killing, S, as earlier instructed by number 2, also used
the cellphone of O.A. to send sms messages to number
2, to the effect
that the deal had been successfully concluded. He sent a number of
such messages. It was a small Nokia phone which
S wanted for himself.
About two days later, S destroyed this cellphone at his home in
Ennerdale by throwing it against the wall.
The other two cellphones
were taken by number 1.
They
went back to the house of number 2 who produced the money robbed from
O.A.. It was a disappointingly small amount which was
later divided
between the four perpetrators.
The
BMW was also removed from the pharmacy where it had earlier been
parked and driven to The Glen shopping centre by number 1 who
parked
it there before he was picked up by S in the former’s Microbus.
Number 1 kept the key and said he had a buyer who
may be interested
in the BMW. Number 1 would wait a few days to make sure that the BMW
was not fitted with a tracking device and
thereafter remove the
vehicle.
[17]
Sometime later, S moved to the Cape with his family. In 2006, S was
arrested in Plettenbergbay in connection with another serious
crime
which he had committed. By the time of his arrest, S had become a
re-born Christian. His conscience was worrying him. He
decided to
disclose full details of all his criminal activities to the
investigating officer at the time, one Captain Lourens of
Kimberley.
In the process he made a statement about the murder of the three
deceased. The state decided to use him as a section
204 witness. The
trial only commenced in November 2006, and was concluded in July
2007.
[18]
It should be added that the police investigation into the murders,
after the bodies were discovered on 13 January 2004, did
not yield
sufficient results to bring about a prosecution. The case was only
reopened after S made his statement. Number 1 and
number 2 were
arrested but by then Lala had disappeared.
[19]
In the process of summarising the outline of the evidence, and
mentioning all the role players, I turn to the testimony of
the rest
of the witnesses.
[20]
Constable Albertus Fivas Nel was a member of the SAPS Anti-hijack
Task Team during 2004. In May 2004 he proceeded to house
number
[…….], which was the house of number 1. They were
looking for number 1 in connection with another matter concerning
an
armed robbery but number 1 was not at home. Nel and his colleagues
found a stolen Mercedes Benz motor vehicle parked on the
premises,
and proceeded to search the house. In a drawer in the kitchen, and in
the presence of number 1’s wife, he found
a BMW motor vehicle
key. They key was hidden under some other loose articles in the
drawer.
[21]
He handed the BMW key to his commander, Captain Jacobus Oostermill
Van Niekerk, who also later testified.
[22]
I add that in heads of argument on behalf of the number 1,
submissions were made to the effect that the search and seizure
of
the BMW key were conducted irregularly and not in accordance with the
prescribed procedure. There was also an indication in
the written
submissions for the appeal hearing before us, that the wife of number
1, who did not testify at the trial, would be
called to testify at
the appeal hearing, if an application to do so were to be granted by
us. This application was never proceeded
with.
[23]
Captain Van Niekerk testified that he, at the relevant time, was the
operational commander of the anti-hijack team or task
team of
Vaalrand. On 19 May 2004 Constable Nel got in touch with him. He gave
him the BMW key. These keys are fitted with a micro
disk. He took the
key to a BMW dealer for analysis. The analysis confirmed that the key
belonged to the particular BMW driven by
Q when he, O.A. and Williams
went to conclude the transaction on the fateful day of the murder.
The analysis also confirmed that
the vehicle was registered in the
name of Bernard B.J’s . B.J’s also testified, and
it was common cause that
he was the owner of the BMW and that Q had
been using it with his permission. He arranged a meeting with B.J’s
, who confirmed
that it was his vehicle and that the vehicle had been
used by the deceased persons. He was also related to them. B.J’s
gave
the name of the investigating officer in the case to Van
Niekerk. Van Niekerk returned the key to Nel, who booked it into the
SAP
13 register.
[24]
K.A.M. was, in my view, a very important witness. He stayed with the
deceased at the house of O.A. at […..]. The witness
and Q ran
a business together known as “traffic fines solutions” in
which they were equal partners. W., who also stayed
there, worked for
O.A.
[25]
During November 2003, O.A. approached K.A.M. and informed him about a
US Dollar deal involving an exchange with an Asian person.
The amount
mentioned was some 900 000 US Dollars. According to O.A. he was
introduced to the deal by number 2. K.A.M. knew that
several meetings
were set up but proper contact and finality could not be achieved.
O.A. told him that the Asian person, who had
the foreign currency, at
some stage stayed with number 2. He was informed about a meeting with
O.A., attended by number 2 and his
wife.
[26]
Importantly, he told the court that in January 2004 he drove to the
house of number 2 with Q and W. in the maroon A. They were
supposed
to exchange the South African Rand for Us Dollars. At the house of
number 2, Q spoke with number 2. Thereafter Q said
that they had to
leave. Later they were informed that the deal had been called off.
When they got home Uncle Allie told them that
number 2 was not happy
with the amount of money that they had on offer and that number 2
wanted to meet O.A. personally. The next
day was Monday 11 January
2004. That morning he heard O.A. say to Q: “do not forget the 2
o’clock appointment”.
[27]
Before proceeding, I pause to mention that although S spoke about 11
and 12 of January as a Thursday and a Friday, this turned
out to be
wrong because the 11
th
was a Sunday and the 12
th
was a Monday. K.A.M. also had the dates wrong. Generally, it was
common cause that the second visit to number 2, when the BMW was
used, took place on Monday 12 January when the murders were also
committed. The bodies were discovered on Tuesday 13 January.
[28]
Returning to the evidence of K.A.M., he said that he only got home
from work that Monday the 12
th
at about 20:30 to be informed by Q’s fiance, Ms C.L, that O.A.,
Q and Williams, who had earlier left in the white BMW, had
not yet
returned. K.A.M. tried to make cellphone contact with all three, but
was not successful in doing so. He went to sleep and
was woken up at
05:00 by C.L. who told him that the three men had not returned home.
They called various hospitals and police stations
but could not find
them.
[29]
Because he knew that the three had gone to meet number 2 that Monday
afternoon, he went to pick up a friend and drove to the
house of
number 2 but found nobody at home. He also made enquiries at the
traffic department but could find no trace of the missing
men.
[30]
That Tuesday evening at about 18:30, M. picked up another friend,
A.C., and three of his security staff and drove back to the
house of
number 2. M. knew that the three men had been scheduled to meet
number 2. M. was suspicious because Q had told him that
some years
earlier they also had a deal with number 2 involving one Rennie, and
made a profit of some R500 000.00 but they did
not give number 2 his
share. According to Q, when number 2 was not paid from the deal, he
reported the matter to the police with
the result that both O.A. and
Q were arrested. Because of that, Q had been reluctant to do the US
Dollar deal, forming the subject
of this case, with number 2.
[31]
When M., C. and the latter’s security staff got to number 2’s
house they found him and his family in a silver Toyota
in his yard.
M. approached number 2 and asked where the three men were. Number 2
said he had last seen the three men the previous
evening and that the
transaction had been successful. Number 2 showed M. an sms message on
his cellphone, purportedly coming from
O.A., indicating that the deal
had gone well. M. could not recall how many sms messages there were.
The sms was dated the Monday.
Number
2 told M. that after the deal the three gentlemen had gone to B.J’s
house. According to M., number 2 was not calm but
nervous and he was
sweating. When he showed the sms to M. his hands were shaking.
[32]
Number 2 told them where B.J’s house was and they drove to that
house but only found the wife at home. She gave them
B.J’s
cellphone number. Before he could phone B.J’s he got a call
from C.L. who broke the news that three bodies had
been found. The
next morning he drove to Sebokeng to identify the bodies.
[33]
I add that S also testified about the Rennie deal that had caused bad
blood between number 2 and O.A..
[34]
M. knew about the white BMW, that it belonged to B.J’s and that
the latter had given it to Q to use.
[35]
M. was subjected to intensive cross-examination. I did not get the
impression that he was discredited in any way. He stuck
to his guns.
He insisted that he knew about the Rennie deal, which was denied on
behalf of number 2 during his cross-examination.
[36]
Dr PJ Schutte conducted the post-mortem. The results were not placed
in dispute. Each of the deceased was killed by a single
gunshot wound
to the head. They were killed before the bodies were set alight.
Although S had testified that number 1 shot the
three deceased in the
back of the head, it appeared according to the evidence of Dr Schutte
that all the entry wounds were not
necessarily in the back of the
head. Dr Schutte also saw no traces of hanger wire with which the
hands would have been tied. It
was not disputed that the hands were
tied. This is obvious from looking at the photos which were handed in
as exhibits. The evidence
that they were first killed by gunshot
before they were set alight also lends corroboration to the evidence
of S.
[37]
Bernard Wolseley B.J’s testified that he was in the motor trade
and the owner of the BMW. He lent it to his cousin Q
in December or
November 2003. O.A. was his uncle (the brother of his father).
He
knew M.. M. phoned him when the news broke of the bodies that had
been discovered. He met M. at the Ennerdale police station
and
accompanied him when the bodies were identified.
On
the Tuesday (perhaps Wednesday the 14
th
) the police
informed him that the BMW had been found at The Glen. The shopping
centre is known as Cumaro Crossing. He went to identify
the car. The
police told him that the security officials mentioned that the car
had been left there on the Monday evening. This
also corresponds with
the testimony of S. He was allowed to remove the car by using a spare
key that he had. The car was not in
a damaged condition. It was
clean. It was fitted with a tracking device. The news about the car
was broken to him by Captain Van
Niekerk. He identified the car from
photographs handed in as exhibits. The photographs were taken of the
car which had been displayed
at a garage in Lydenburg. B.J’s
had been involved in a collision with the car whereafter it was sold
at an auction and taken
to Lydenburg.
[38]
He denied that he had any appointment to see O.A. on the Monday night
as indicated by number 2 to M. This also corroborates
the evidence of
S.
[39]
Inspector Jaco Horn was an inspector in the South African Police,
stationed at the Ennerdale Detective Branch in the Vaalrand
vicinity.
He had ten years’ experience. On 13 January he was informed
about the murder scene at Elandsfontein and went to
the deserted spot
where he found the three burned out corpses. He identified them by
reference to the photo album exhibit “C”.
The three
bodies had bullet wounds in the head. Their hands were tied with
“cable ties”. He understood from some of
his colleagues
that a plastic can which may have contained petrol was found on the
scene.
[40]
Sanuse Ntelani was a security guard on duty at the relevant Cumaro
Crossing shopping centre in January 2004. On Monday 12 January
he
reported for duty at 18:00. Before 19:00 he noticed the white BMW
driving in and stopping in the parking area. A person alighted,
locked the door and left. The person had a light complexion although
he was not of “white origin”. It was a male. The
vehicle
was not removed during that night. The next day the police arrived.
When he reported for duty the next day at 18:00 the
BMW had been
removed. He identified the car on the photograph exhibit. He said the
person who parked the car, although light complexioned,
was an
African black. He described the general facial features of black
Africans.
[41]
Joseph Xaba was an inspector in the South African Police Force
stationed at the Serious and Violent Crime Unit. He was the
investigating officer and also went to the scene where the corpses
were found. The name of number 2 was mentioned. Presumably by
M..
Number 2 was questioned. He was not charged at the time. He knows
about the BMW key that was found by Constable Nel. He took
the key to
the garage in Lydenburg and managed to open the BMW and start it with
the key.
He
questioned number 1 (after his arrest) about the key. Number 1 said
he did not know how the key had allegedly been found in his
house.
Number 1 said that he had only recently moved into the house.
[42]
S was brought to him by the investigating officer from the Cape.
Arrangements were made with Captain Fouche to accompany S
to point
out the place where the murders had taken place. He pointed out the
correct place. He also pointed out the house of number
2.
[43]
Before the state closed its case, admissions were also made in terms
of section 220 of Act 51 of 1977 on behalf of number 1.
This is
exhibit “T”. The identity of the three deceased persons
was admitted and also the correctness of Dr Schutte’s
post-mortem findings. It was also admitted that the corpses sustained
no further injuries between the shooting on 12 January and
the
post-mortem on 14 January 2004.
[44]
Number 1 testified in his own defence. He denied any knowledge of the
murders. He knew S although they were not friends. At
one stage there
was a dispute between him and S about the latter having removed his
laptop. He did own a kombi in 2003 and 2004.
It appears that he took
S’s computer in retaliation for the laptop that had been
removed. S confronted him and actually shot
at him at a filling
station.
[45]
S also wanted to buy his kombi at one stage and when he refused, this
caused further unpleasantness. He had known S since about
1997 or
1998. He describes S as a racist who was jealous of him.
[46]
It appears that when they were driving together to the police station
after the filling station incident, to report each other
or to lay
charges, they resolved their differences and did not proceed to lay
charges.
[47]
When he was cross-examined about the BMW key, he accused the police
of conducting a conspiracy against him. This evidence I
found
unconvincing. He even denied that Nel found the key in his house.
This denial was not put to Nel in cross-examination. He
also denied
that Xaba questioned him about the key. He said Xaba was telling
lies.
[48]
He did not raise the excuse, which he allegedly raised towards Xaba,
that he had only recently moved into the house where the
BMW key was
found.
[49]
He repeatedly accused S of being a racist and said that S would make
up the story just because he (number 1) was black. On
a general
reading of his evidence, he appeared to offer this as a reason for S
falsely implicating him, rather than the laptop/computer
dispute,
supra, which appeared to have been settled amicably on the way to the
police station as I pointed out. This incident also
happened years
before S finally spilt the beans in 2006.
[50]
As to the BMW key, number 1 testified that his wife never told him
that the key had been discovered and removed by Nel. When
Nel
testified that he confiscated the key in the presence of the wife,
and even asked her whether the family possessed a BMW, to
which she
replied in the negative, this evidence of Nel was not challenged in
cross-examination. The wife of number 1 was also
not called as a
witness.
[51]
Number 1 said he only met number 2 after they were arrested. Number 2
gave similar evidence.
[52]
The only defence witness called by number 1 was Sonavhile Mayford
Duda.
[53]
According to Duda, he was a cellmate of S in the Leeuhof Prison for a
while, and thereafter, by a great coincidence, also a
cellmate of
number 1.
[54]
According to the witness, S told him that in order to get out of
prison, he was going to implicate other people “so as
to get
bail”.
[55]
After S left the cell, number 1, by a quirk of faith, was locked up
with the witness in the same cell. When the name of S came
up for
discussion, because the latter had made certain drawings in the cell,
it was discovered that number 1 had been one of the
persons
implicated by S.
[56]
In cross-examination, this witness appeared to adapt his version from
time to time. He had particular difficulty in demonstrating
that S
had mentioned that he would falsely implicate the other people rather
than simply implicate them. In the context of this
case, that would
make a significant difference.
[57]
It should be added, that, when he was cross-examined about this
subject, S admitted that he had met Duda in prison. He denied
having
said that he would implicate other people in order to get bail. It
was put to S in cross-examination that there were two
other inmates
who would support the evidence of Duda and who would also be called
to testify. They were not called.
[58]
Counsel for number 2 called Johanna Petronella Heynecke as the first
witness on behalf of number 2. She was employed at Vodacom
Head
Office in Midrand and regularly gave evidence when it came to the
question of analysing cellphone records.
[59]
She gave evidence about calls made and received on the cellphones of
the three deceased during the relevant period in January
2004. There
appears to be some discrepancies between the times when the
cellphones were used according to the records, and the
times when
they may have been used according to the evidence of S.
As
Mr Roberts pointed out, correctly in my view, such discrepancies were
to be expected given the fact that S only made his statement
and
revelation of the incident some two years after the event.
[60]
Mr Roberts also made the compelling submission that the evidence of
Heynecke corroborates that of S in the following important
respect:
according to the records, the cellphone of O.A. was used for the last
time on the day of the murder (12 January 2004)
and never again after
that. This is in line with the evidence of S that he destroyed the
cellphone, albeit two days later, by crushing
it against the wall. By
contrast, the cellphones of the two other deceased remained in use
for a while after the murder. The one
phone was fitted with a new sim
card and was used until March 2004, and the other one was also fitted
with a new sim card and was
still in use by the time when the trial
took place. These two phones, according to S, were not taken by him
after the crime but
by number 1.
[61]
Number 2 gave evidence in his own defence. The basic storyline shows
a remarkable resemblance with the evidence of S. Number
2 met a
foreigner by the name of Arrie who wanted to exchange American
Dollars for South African currency at a cheap rate in exchange
for
papers to validate his unlawful presence in the country. Number 2
took the deal to O.A. There was a great deal of negotiation.
The
possibility of the coffee shop changing hands was mentioned. On the
Sunday before the murder Keith M., Q and Williams visited
number 2 in
the maroon Almeira. They brought some money but the deal fell
through. On the Monday of the murder O.A., Q and Williams
arrived in
a white BMW. They left with Arrie. Afterwards O.A. sent an sms to say
that the deal had been successful. When they left
they said they had
an appointment with B.J’s. Of course, B.J’s denied this.
Arrie disappeared and was never heard of
again.
[62]
The major differences between the version of number 2 and S, as can
perhaps be expected, are the following: S had nothing to
do with the
transaction whatsoever although he was known to number 2 at that
stage. Number 1 did not feature at all and was not
known to number 2
until after they were arrested. The fake attack and robbery did not
take place at the house of number 2 on the
Monday afternoon or
evening. When O.A., Q and W. left with Arrie, they were unharmed.
[63]
Significantly, when he was cross-examined, number 2 could offer no
explanation whatsoever for S’s decision to falsely
implicate
him. He was cross-examined on this issue on two occasions.
[64]
When he was asked whether S was at all aware of the transaction that
he had had with Uncle Allie regarding the dollars he said
that S
could not have been aware of it. Later he said that after his first
arrest in February 2004, S came to enquire why he had
been arrested
and he mentioned the deal to him. The following then was asked: “All
right. If you could just - did you go
into details of the deal or
just mentioned the deal to him? ... I just mentioned the deal to him,
no details.” In cross-examination
this subject was taken up
with him again. He was very vague when asked what he told S. On a
general reading of his evidence, he
maintained that S had nothing to
do with the deal, and, on this version, S could not have known all
the details which he disclosed
to the police and the court when
making the revelation.
[65]
Number 2 also denied the “Rennie deal” where O.A.
allegedly caused number 2’s father to lose money.
[66]
Number 2 admitted that he received a visit on the Tuesday evening
from M. and some other men. He admitted that he was nervous,
but
denied that his hands were shaking and that he was as nervous as M.
had made him out to be. In my view, he could not give an
acceptable
explanation for being as nervous as he said he was.
[67]
Perhaps significantly, number 2 also did not go to the school where
he taught on the Tuesday, the day after the murder. He
took his wife
to a clinic for her ear ache and had his son circumcised. On all the
evidence, including that of him and his father,
the Tuesday would
have been one of the busiest days of the school term, being the first
day after the holiday.
[68]
The father of number 2 also testified. He confirmed that his son
helped him in his clothing shop where he sold school uniforms
on the
Monday until about 17:00 before he went home. He also denied the
“Rennie deal”.
[69]
This concluded the evidence.
S
testifying as an accomplice and a single witness
[70]
In his judgment, the learned judge a quo indicated from the outset
that he was alive to the fact that the testimony of an accomplice
must be treated with the utmost caution. He did so. He referred,
inter alia, to S v Masuku and Another 1969
1
SA 375 (NPD) at 376-377, S v Francis
1991 (1) SACR 198
(A) and S v Hlongwa
1991 (1) SACR 583
(A).
In
Francis, the learned judge of appeal says the following at 205e-g:
“
It
is not necessarily expected of an accomplice, before his evidence can
be accepted, that he should be wholly consistent and wholly
reliable,
or even wholly truthful, in all that he says. The ultimate test is
whether, after due consideration of the accomplice’s
evidence
with the caution which the law enjoins, the court is satisfied beyond
all reasonable doubt that in its essential features
the story that he
tells is a true one (R v Kristusamy
1945 AD 549
at 556).”
[71]
In his argument, Mr Van Vuuren also referred to the following passage
from R v Ncanana
1948 4 SA 399
(AD) 405:
“
The
cautious Court or jury will often properly acquit in the absence of
other evidence connecting the accused with the crime,
but
no rule of law or practice requires it
to do so
.
What is required is that the trier of facts should warn himself, or,
if the trier is a jury, that it should be warned, of the
special
danger of convicting on the evidence of an accomplice; for an
accomplice is not merely a witness with a possible motive
to tell
lies about an innocent accused but is such a witness peculiarly
equipped, by reason of his inside knowledge of the crime,
to convince
the unwary that his lies are truthful. This special danger is not met
by corroboration of the accomplice in material
respects not
implicating the accused, or by proof aliunde that the crime charged
was committed by someone.” (Emphasis added)
[72]
Mr Van Vuuren also referred to the provisions of section 208 of Act
51 of 1977 which simply provides that an accused may be
convicted of
any offence on the single evidence of any competent witness. Mr Van
Vuuren argued that the testimony of S was not
satisfactory in every
respect. He referred to, inter alia, the fact that S had said that he
tied the people up with wire hangers
whereas the post-mortem evidence
and other evidence suggested that they were tied up with other
material. He also referred to the
testimony of S about the time when
the attack took place. It is correct that S initially indicated that
the attack and the fake
robbery took place earlier in the afternoon,
but in cross-examination he appeared to exhibit a
measure
of uncertainty about exactly what time in the afternoon it happened.
It should also be borne in mind that S made his statement
some two
years after the event.
I
have already referred to the apparent discrepancy with regard to the
cellphone records. When dealing with the question of whether
or not
there should be corroboration of the testimony of an accomplice, Mr
Van Vuuren referred to Commentary on the Criminal Procedure
Act by Du
Toit at all at 24-4. The following is stated by the learned authors:
“
And
in S v Hlapezula [the reference is
1965 4 SA 439
(A) at 440E-F] at
440F HOLMES JA, after listing the dangers inherent in relying on
accomplice evidence, added:
‘
Accordingly
... there has grown up a cautionary rule of practice requiring (a)
recognition by the trial court of the foregoing dangers,
and (b) the
safeguard of some factor reducing the risk of a wrong conviction.’
What
safeguards may the courts consider in order to reduce such risk?
Corroboration is the most obvious safeguard, but there is
no rule of
law or practice requiring corroboration of the accomplice (see R v
Ncanana ...).”
I
have already referred to the passage from Ncanana and underlined the
particular remark that there is no rule of law or practice
requiring
a court to insist on other evidence connecting the accused with the
crime.
In
this regard Mr Van Vuuren also referred to the following passage from
Meyer v Director of Public Prosecutions KZN
[2006] 4 All SA 598
(N)
606c-d:
“
The
greatest caution must be exercised in evaluating the evidence of
Steytler. He is a single witness and an accomplice, and for
reliance
to be placed upon his evidence it has to be clear and satisfactory in
every material respect. In addition corroboration
implicating the
appellant in the commission of the offence must be sought in order to
reduce the risk of a wrong conviction.”
[73]
Mr Roberts, correctly, argued that one must consider the evidence in
totality. He submitted that it is highly improbable that
S would have
implicated the appellants falsely. If that were so, it would mean
that he either fabricated the whole story or, having
been part of the
commission of the crimes, he falsely involved the appellants rather
than the true perpetrators. There would appear
to be no rational
reason for him to do this. Moreover, it would mean that he implicated
two people (number 1 and number 2) who
did not know each other from a
bar of soap, according to their evidence.
[74]
Mr Roberts also, whilst legitimately criticising the quality of the
evidence of Duda, pointed out that even if S had told Duda
that he
was going to implicate other people, that would still be
distinguishable from an utterance that he was going to falsely
implicate them. I have already referred to this aspect.
[75]
Mr Roberts also, correctly in my view, emphasised the remarkable
resemblance between the version of number 2 and the version
of S. The
corresponding aspects have been listed. He also illustrated the
contradictory nature of number 2’s evidence when
he was
confronted with the question as to whether or not he discussed the
matter with S in February 2004. To this I have already
referred.
[76]
It seems to me that, if number 2’s evidence that S had nothing
to do with the whole affair were to be believed, it is
almost
inexplicable how S could have known about the following:
-
That the BMW was parked at the shopping
centre on the night of the murder.
-
That number 1 took the key (corroborated
by the evidence of Nel and others).
-
That sms messages were sent to number 2
from the phone of O.A. on the night of the murder.
-
That number 2 was visited on the Sunday
afternoon by the three individuals in the maroon Almeira.
-
That number 2 was visited on the day of
the murder by the three individuals in the white BMW.
[77]
Another mystery which arises on the version of the appellants, and
particularly number 2, is the following:
If
the deceased were not murdered as described by S, then who were the
perpetrators? There was no suggestion by any witness as to
any other
possible perpetrators. On the version of number 2, the deceased must
have been attacked shortly after leaving his home
by unknown
individuals. It appears to be unthinkable that Arrie could have
executed the attack by himself. No other individuals
were involved in
the negotiations leading up to the deal.
[78]
Inasmuch as there may be a requirement that, when one deals with the
evidence of an accomplice, there must be other evidence
linking the
accused to the crime, (which does not appear to be the case from the
authorities quoted) it seems to me that number
1 was linked to the
crime by the discovery of the BMW key in his house and his
unsatisfactory and varied explanations as to how
that may have come
about as well as his failure to call his wife to testify. As to
number 2, I am of the view that he is linked
to the crime by the
various areas of similarity between his version and that of S.
[79]
The learned judge a quo, steeped in the atmosphere of the trial, was
highly critical about the demeanour of number 1 in the
witness box.
He motivated this approach in explicit detail. See pages 761 to 765
of the record. Similarly, the learned judge was
not impressed with
the evidence of number 2 and his demeanour in the witness box. Again,
he fully motivated this approach. See
pages 771 to 776 of the record.
[80]
As opposed to this, the learned judge was impressed with S. He
considered him to be a satisfactory witness.
[81]
It appears to me that, in a case like this, it can never do any harm
to remember the well-known principles laid down in R v
Dhlumayo
and Another
1948 2 SA 677
(AD). In that case it is stated that the
trial judge has advantages - which the appellate court cannot have -
in seeing and hearing
the witnesses and in being steeped in the
atmosphere of the trial. Not only has he had the opportunity of
observing their demeanour,
but also their appearance and whole
personality. This should not be overlooked. Consequently the
appellate court is very reluctant
to upset the factual findings of
the trial judge. Even in drawing inferences the trial judge may be in
a better position than the
appellate court, in that he may be more
able to estimate what is probable or improbable in relation to the
particular people whom
he has observed at the trial. Where there has
been no misdirection on fact by the trial judge, the presumption is
that his conclusion
is correct; the appellate court will only reverse
it where it is convinced that it is wrong. In such a case, if the
appellate court
is merely left in doubt as to the correctness of the
conclusion, then it will uphold it.
I
can find no material misdirection of the nature intended by Dhlumayo,
that ought to lead this court of appeal to set aside the
conclusions
of the trial judge.
In
Francis, supra, the learned judge says the following, at 204c-f, when
dealing with the principles in Dhlumayo:
"This
Court’s powers to interfere on appeal with the findings of fact
of a trial court are limited [R v Dhlumayo and
Another
1948 2 SA 677
(A)]. ... In the absence of any misdirection the trial court’s
conclusion, including its acceptance of D’s evidence,
is
presumed to be correct. In order to succeed on appeal accused number
5 must therefore convince us on adequate grounds that the
trial court
was wrong in accepting D’s evidence - a reasonable doubt will
not suffice to justify interference with its findings
[R v Dhlumayo
supra; Taljaard v Sentrale Raad vir Kooperatiewe Assuransie Beperk
1974 2 SA 450
(A) at 452A-B]. Bearing in mind the advantage which a
trial Court has of seeing, hearing and appraising a witness, it is
only in
exceptional cases that this Court will be entitled to
interfere with the trial Court’s evaluation of oral testimony
[S v
Robinson and Others
1968 1 SA 666
(A) 675G-H].”
[82]
For all these reasons, I have come to the conclusion that the appeals
against the convictions ought to fail.
[83]
As to the appeals against sentence, it is fair to say, without doing
an injustice to counsel for the appellants, that they
did not
strongly argue that the sentences were inappropriate. The crimes
committed were of the most horrific nature. There is clearly
no
evidence of remorse on the part of the appellants. There is no
question of compelling circumstances, as intended by the provisions
of Act 105 of 1997, having been established. The compulsory minimum
sentences cannot be interfered with. There is nothing shocking
or
inappropriate about the sentences in respect of the lesser charges.
[84]
Inasmuch as the learned judge did not specify that all the sentences
would run concurrently, he did not have to do so. See
SS Terblanche
Guide to Sentencing in South Africa 2
nd
ed at 233-234 where the following is stated:
“
Such
sentences, when they consist of any other form of imprisonment,
automatically run concurrently with the sentence of life
imprisonment.
As a result, the cumulative effect of any other
sentences is of no consequence, and there is no need to order such
sentences to
run concurrently. It has also been decided that life
imprisonment cannot be extended by any additional term of
imprisonment.”
See
also the reference, in footnote 226 on page 234, to section 39(2)(b)
of Act 111 of 1998.
[85]
In my view the appeals against the sentences ought also not to be
upheld.
The
order
[86]
I make the following order:
The
appeals of both appellants are dismissed and the convictions and
sentences are confirmed.
W
R C PRINSLOO
JUDGE
OF THE NORTH GAUTENG HIGH COURT
I
agree
E
M MAKGOBA
JUDGE
OF THE NORTH GAUTENG HIGH COURT
I
agree
A
M L PHATIDU
JUDGE
OF THE NORTH GAUTENG HIGH COURT
Heard
on
:
27 May 2009
For
the 1
s:
Appellant
: Adv
L M Tshabalala
Instructed
bv
:
Pretoria Justice Centre
For
the 2
nd
Appellant
: Adv
J L C J Van Vuuren
SC
Instructed
bv
: Nardus
Grove Attorneys, Pretoria
For
the State
:
Adv F C Roberts
Instructed
bv
: The
Director of Public Prosecutions
Date
of Judgment
: