S v Van Wyk (A417/2007) [2008] ZAFSHC 139 (16 October 2008)

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[2008] ZAFSHC 139
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S v Van Wyk (A417/2007) [2008] ZAFSHC 139 (16 October 2008)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case No.: A417/2007
In the appeal of:
MARUCHELLE VAN WYK
Appellant
and
THE STATE
Respondent
_____________________________________________________
CORAM:
EBRAHIM, J
et
VAN
DER MERWE, J
et
VAN ZYL, J
JUDGEMENT:
EBRAHIM, J
_____________________________________________________
HEARD ON:
18 AUGUST 2008
_____________________________________________________
DELIVERED
ON:
16 OCTOBER 2008
_____________________________________________________
[1]
On
the 22 June 2007 the appellant was convicted in the court
a
quo
(Voges, AJ) of the murder of Leandré Coetzee, a 19 year old
single female and sentenced to 10 years imprisonment. With
the leave
of the trial court he appeals against both his conviction and
sentence.
[2] The
court
a
quo
found
that the deceased was shot in the head at close range by the
appellant on the 13
December
2005 between 19h00 and 20h00 whilst visiting him in his flat at Van
Der Stell Court, Bloemfontein. In coming to this conclusion
the
court
a
quo
made factual findings by accepting the evidence of the State
witnesses, Benjamin Marais and Frederick Johannes Huisamen concerning

statements made to them by the appellant of how the shooting occurred
and rejected the appellant’s version of the event. In
analysing
the evidence the court
a
quo
found that little criticism could and had been levelled by the
defence against the testimony of Huisamen and that his evidence
that
the appellant had confessed to shooting the deceased shortly after it
happened was not challenged at all by the defence in

cross-examination because that evidence was in fact true. The trial
court thus made credibility findings upon which it ultimately
relied
in convicting the appellant. Essentially it is these credibility
findings that form the basis of this appeal.
[3] The
principles to be followed and the approach to be adopted in appeals
against findings of fact have been succinctly summar
ised
in the judgment of Davis AJA in
R
v DHLUMAYO & ANOTHER
1948 (2) SA 678
AD at 705 - 706. See also
S
v KELLY
1980 (3) SA 301A
at 307 – 308. What has to be considered in the
present appeal therefore is whether any misdirection on the part of
the Court
a
quo
in making these factual and credibility findings has been
demonstrated. If such misdirections are absent then the appellant
will
have to satisfy us that the court
a
quo
was wrong notwithstanding. If such misdirections are present we are
entitled to disregard those findings in whole or in part,
depending
on the circumstances. In performing this exercise we are alive to
the advantages presented to the trial judge which
we do not enjoy
concerning matters relating to the demeanour of witnesses.
[
4] It
is apposite at this point to give some background to the shooting,
much of which is and was common cause at the trial.
4
.1 The
deceased was born and bred in Bloemfontein and had a brief sojourn in
Cape Town before returning to Bloemfontein in the winter
of 2005,
having become pregnant in Cape Town. She lived with her parents
until November 2005 when the fact of her pregnancy became
known to
her family, causing tensions between her and her father. As a result
she moved in with her boyfriend at the time Michael
Osborne, with
whom she had begun an intimate sexual relationship in August 2005.
Simultaneously however she began an intimate
relationship with the
appellant.
4
.2
On the 13
th
December 2005 she told Michael Osborne that she was going to visit a
friend. That friend was the appellant. During the course
of the
visit with the appellant, she received a cellphone message from
Osborne asking her where she was. She replied to him that
he must
leave her alone, she was with the appellant but he was welcome to
join them for a “3-some”. These messages were sent
via the
cellphone in what is in common parlance known as an SMS. Osborne was
understandably upset and sought the company of a
friend who invited
him to go for a drive.
4.3 Fortuitously
just after 19h30 they drove past the building in which the appellant
lived and saw the deceased’s vehicle parked
outside the building.
He entered the building where he learnt that the deceased had been
shot. He telephoned the appellant who
answered but said nothing,
just crying hysterically. The appellant then ended the call. It is
not clear on the evidence whether
Osborne made this call before or
after learning of the shooting.
4.4 Whilst
all of this was going on Frederick Johannes Huisamen decided to
telephone the appellant in connection with a staff dispute
at Golden
Cloud Spur where both he and the appellant were employed. The
appellant answered his cellphone, cried hysterically and
asked the
witness to come to him immediately because as he (the appellant) put
it: “Ek het haar geskiet.” The witness hurried
to the
appellant’s flat, on his way he received an SMS from the appellant
who again requested him to come to his assistance.
On his arrival at
the flat he could hear the appellant inside the flat, crying. The
door was locked and the appellant did not
react to his knock. As a
result Huisamen went to the supervisor of the building, a Mr Du
Plessis, who hurried to the appellant’s
flat.
4.5 The
appellant refused to open the door but merely cried out: “Freddie,
Freddie moet my nie los nie, jy is my enigste vriend.”
The door to
the appellant’s flat had to be broken down. The witness found the
appellant behind the door, blood all over his
hands and clothes, and
against the walls and on the floor. The deceased was found in a
seated position on the couch clothed in
shorts. Her blouse had been
removed. She had sustained a gunshot wound to the head and was
already dead. The appellant was hysterical
and uncontrollable and
had to be calmed down with a sedative. On the bed in the appellant’s
flat the supervisor, Mr Du Plessis,
found a .38 Taurus revolver,
handed in as exhibit 1. A hunting knife was found on the floor and
in the kitchen a bottle of brandy
was found with blood thereon. The
appellant was taken into custody and detained in police cells for the
night. The following
morning on being informed that he had shot his
girlfriend he immediately denied this.
[
5] In
convicting the appellant of the deceased’s murder the trial court
accepted the testimony of Benjamin Marais despite heavy
criticism
thereof by the appellant’s legal representative. His evidence that
he was a close friend of the appellants and that
during February 2006
the appellant had told him the deceased had shot herself by mistake
while he, the appellant, was in the kitchen
pouring drinks was
subjected to intense cross examination. The trial court found that
despite contradictions between this witness’
testimony in chief and
in cross examination, in its essential aspects the details which he
gave about the meeting between him and
the appellant were true and on
that basis accepted his testimony. The learned judge found that
despite Marais’ absence from
Bloemfontein he was still able to give
minor details such as the brandy found in the kitchen, and that the
appellant had cleaned
his firearm that day, which evidence was
consistent with the appellant’s version of events. In addition the
court
a
quo
accepted that Marais was a friend of the appellants because of the
time he had spent with the appellant in the deceased’s company

because he had witnessed the appellant’s telephone calls to the
deceased and the appellant’s reaction to finding the deceased
in
the company of another man on one instance. In respect of all these
aspects of his evidence Marais was corroborated by the
evidence of
the appellant himself. I am in agreement with the trial court’s
approach to this witness’s testimony and find
that the court
a
quo
was correct in accepting this witness’s evidence and rejecting the
appellant’s version of the matters discussed at the meeting
between
them during 2006.
[
6] I
turn now to consider the gravamen of the appeal which is whether the
trial court was correct in rejecting the appellant’s
version of how
the shooting occurred as not being reasonably possibly true.
It
was the appellant’s testimony that he had arranged with the
deceased that she would visit him at approximately 18h30 that
evening
at his flat. Whilst waiting for the deceased to arrive he decided
that she should accompany him when he visited his mother
and sister
that evening. Because they lived in an area which was not safe, he
decided to take his firearm a .38 Taurus revolver
with him. In
preparation for this visit, he took out his revolver and began
cleaning it. He had finished cleaning and was busy
loading the
revolver when the deceased knocked on his door. He loaded it with
one round of ammunition and left it on the couch
on which he had been
seated whilst cleaning it and let the deceased into the flat. On
entering the flat the deceased sat on the
same couch on which the
appellant had left the revolver. At this point the revolver was on
her left-hand-side. The evening progressed
with the two of them
enjoying a relaxed time together talking, watching television and
flirting. By this time the deceased was
in a state of partial
undress, having removed her blouse. The appellant testified that
there was no acrimony between them nor
had anything occurred to
create any tensions between them. Suddenly and without any
provocation on his part the deceased became
emotionally charged and
wanted his assurance that he would take care of her and her unborn
child. This assurance he promptly gave.
But she would however not
believe him so as a mark of his commitment to her, he slit his left
wrist. According to the appellant
even this did not satisfy and
pacify the deceased. She continued crying hysterically and staring
at him without speaking. She
then leaned over and grabbed his
revolver with her left hand, her fingers over the cylinder of the
firearm. The appellant pleaded
with her to put the revolver down but
she would not do so. Instead she took a firm hold of the firearm
holding it in a position
with the barrel pointing downwards and
placed it in-between her legs and the couch. In this position she
refused to release the
arm. The appellant fearing that the firearm
would go off moved towards her until he was standing right in front
of her. All this
time she continued crying. He pleaded with her to
give him the firearm but she would not do so. He then put his hand
in-between
her legs and the couch and attempted to wrest the firearm
from her by trying to loosen her grip on the firearm. He said that
she
was still holding onto the firearm with her left hand and he
could not remember what she was doing with her right hand. He
conceded
that the deceased was right-handed. Eventually he managed
to get a grip on the butt of the firearm, intensified his grip
thereon
and tugged at it at first gently until he was successful in
prying it out of the deceased’s grip. But just as he managed to
remove the firearm from the deceased’s possession, the deceased
grabbed hold of his arm with her left hand and pulled it towards
her.
He pulled his arm back and at that point the shot went off killing
the deceased.
[7] In
my view this version is so highly improbable that it is incapable of
belief. I say so for the following reasons:
7
.1 The
appellant was adamant that at no point in attempting to gain control
of the firearm did he touch the trigger or any area
near the trigger
or firing mechanism of the firearm.
7
.2 At
all times the appellant stuck to his evidence that he grabbed hold of
the firearm by its butt and whilst removing it from
the control of
the deceased, he intensified his grip on the butt of the firearm.
7
.3 His
evidence that his fingers might just have slipped over the butt and
touched the trigger mechanism setting it off was patchy
and
unconvincing and is in any event purely speculative. He did not
testify that this is what in fact happened.
7
.4 There
is no evidence at all as to why the shot went off alternatively why
the firearm was triggered and by whom. The appellant
is the only
person who is able to tell us how this happened and, it is clear,
that he is being evasive on this fundamental aspect.
This begs the
question: Why?
7
.5 The
appellant’s evidence that the deceased chose to wage a tug of war
with him for the firearm with her left hand when she
was in fact
right-handed gives in my view the best indication that his version is
devoid of truth and is one which has been contrived
in order to
protect himself. Any person who is serious about possessing and
taking control of a weapon will naturally use the
hand which is
dominant, that is the hand normally used in manual activity, to get
control of the firearm. It is inconceivable
that the deceased in
these circumstances would have used her left hand in order to
withheld the weapon from the firm grip of the
appellant.
7
.6 On
the appellant’s version there are no understandable reasons or
explanations for any part of the crucial alleged sequence
of events
that led directly to the shot going of. There was no reason for the
deceased to pick up the firearm at all or in the
manner that she
allegedly did, namely with the left hand over the cylinder thereof.
There was no reason for her to, whilst still
holding the firearm in
this manner, hold the firearm between her legs. There was no reason
for the appellant to attempt to take
the firearm from the deceased as
it posed no real danger and there was even less reason for her in the
circumstances to resist
this attempt. There was no reason for the
deceased to grab the arm of the appellant and most importantly, as
pointed out already,
there was no reason or explanation for a shot to
be fired. As the whole alleged sequence of events is unmotivated it
is highly
improbable. His evidence that he was in shock and could
not remember what happened after that flies in the face of his plea
to
Huisamen for support and his admission to Huisamen shortly after
the shooting that he had shot the deceased. It also does not stand

up to the evidence that he was hysterical but would not open the door
to let Huisamen and the caretaker of the building, Du Plessis,
into
the flat.
[
8] I
find accordingly that the appellant’s version can be safely
rejected out of hand as being false beyond a reasonable doubt,
that
the trial court correctly found that it was the appellant who fired
the shot at close range which killed the deceased, and
that he did so
with the requisite
mens
rea
.
In the result I find no misdirection in the trial court’s
findings on credibility and fact. On the contrary, the learned
Judge
weighed the intrinsic quality of the evidence and the probabilities
carefully and, in my view, accurately.
[
9] I
turn now to the appeal against the sentence. It was conceded by
appellant’s counsel that the trial court committed no misdirection

in sentencing the appellant. The only issue in the appeal against
sentence is whether given the trial courts finding that the
minimum
sentence of 15 years imprisonment was applicable and that substantial
and compelling circumstances were present, the sentence
of 10 years
imprisonment imposed was shockingly inappropriate. In this regard
there is no issue between the State and the defence
that this crime
falls within that category of offences termed the “crime
passionale”. Whilst not detracting from the extreme
seriousness of
the action of taking another human beings life, the courts have,
generally speaking, had sympathy for offenders
who, after sustained
emotional abuse, take the law into their own hands in order to end
the abuse. I have acquainted myself with
the authorities in this
regard and what has emerged upon a reading of those authorities is
that in each case when emotional conflict
and stress has been present
between partners or spouses, on a sustained basis over a lengthy
period of time the courts have been
reluctant to impose lengthy and
heavy terms of imprisonment upon the offender. See
STATE
v LARSEN
1994 (2) SACR 149A
,
STATE
v INGRAM
1995 (1) SACR 1A
and
STATE
v SMITH
1990 (1) SACR 130A.
[10] In
STATE
v WALDECK
2006 (2) SACR 120
(NC) the appellant was convicted of culpable
homicide after the court accepted hearsay evidence of emotional
conflict and stress
between the appellant and the deceased which had
led to the deceased being repeatedly physically abused and assaulted.
On appeal
the appellant’s sentence of 15 years imprisonment was
altered to one of 10 years imprisonment. The sentence was a heavy
sentence,
even though reduced on appeal, for a conviction not of
murder but culpable homicide. This was indicative of the court’s
attitude
to a killing following emotional conflict and physical abuse
that these crimes are punishable with severe and heavy sentences so

as not to give the impression that the courts overemphasize emotional
trauma suffered by the offender at the expense of the need
to
properly punish him/her for his/her actions. At page 142 of the
judgment paragraph 51 the learned Judge said the following:
“
Whilst this is a
crime of passion and the courts tend
to take a more penitent view of such crimes, the impression must
never be created in the minds of the community members that the
court
condones such despicable conduct.”
[
11] The
present case is distinguishable from the cases I have quoted. The
appellant and the deceased were not involved in a serious
and
sustained emotional and sexual relationship in the sense that they
were living together for a lengthy period of time. It is
true that
they were involved in an intimate sexual relationship for a few
months but this was at the time when the deceased was
living with
Michael Osborne with whom she was also sexually active, with the
knowledge of the appellant. In such circumstances
there can be no
question of any sustained emotional conflict and stress suffered by
the appellant. I am moved to mention that
such stress which might
have existed must have been brought on largely by his own need to be
with the deceased. In any event I
am not convinced that the
emotional conflict and stress suffered by him was such as described
in the authorities I have quoted.
[12] The
court
a
quo
in sentencing the appellant accorded the proper weight to factors in
the appellant’s favour, such as his unstable childhood and
his lack
of a suitable role model, his unstable emotional relationships with
the mothers of his two children, his clean criminal
record, the fact
that he was at the time in gainful employment and the fact that he
maintained and supported his children, mother
and sisters.
[1
3] The
court
a
quo
correctly found however that the appellant, being older than the
deceased by approximately 10 years, was the person in control
of the
emotional situation on the fateful day and that he had taken
advantage of the deceased’s emotional and financial insecurities.

It is clear from the evidence that the deceased was an emotionally
confused young woman, worried about her future and the future
of her
unborn child. The fact that she continued to engage in intimate
relationships with both Osborne and the appellant both
of whom the
evidence revealed she was looking to for financial security, speaks
volumes of the emotional trauma she must have undergone
when
considering bringing an illegitimate child into the world. It is no
wonder that she kept both Osborne and the appellant “on
a string”,
so to speak, in the hope, no doubt, that a firm offer of marriage or
a firm commitment from one would mean that she
could rid herself of
the other. That the appellant took advantage of her vulnerable state
makes it difficult to warm towards him
as a sentencing subject
despite the evidence that he had acted whilst under the influence of
alcohol. There is in any event no
evidence of the degree of that
influence before us.
[14] This
court is therefore not at large to interfere with the sentence. The
appeal is accordingly dismissed and the conviction
and sentence
confirmed.
____________
_
S. EBRAHIM, J
I
concur.
___________
______________
C.
H. G. VAN DER MERWE
,
J
I
concur.
__________
__
C.
VAN ZYL
,
J
On
behalf of appellant: Adv. J. G. Gilliland
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of respondent: Adv. S. Giorgi
Instructed
by:
Director
of Public Prosecutions
BLOEMFONTEIN
/em