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[2008] ZAWCHC 82
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S v Van Dalen and Others (SS57/2008) [2008] ZAWCHC 82 (20 October 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NUMBER
: SS57/2008
DATE
: 20
OCTOBER 2008
In
the matter between:
THE
STATE
versus
1.
EMILY
VAN DALEN
2.
ANGELIQUE
VAN DALEN
3.
CHRISTO
PRETORIUS
JUDGMENT
NGEWU,
A J
:
The
matter was postponed to today for verdict. The three accused were
arraigned before this Court on the following charges. That
is murder,
main count. In that on or about 29 September 2006 and at or near
Keast Street in Bellville, the accused wrongfully and
unlawfully
killed Antonio van Dalen by assaulting him and stabbing him with a
sharp object.
First
alternative was conspiracy to commit murder. In that on or about the
same date and place as an in the main count, the accused
conspired
to murder Antonio van Dalen. The second 25 alternative was
incitement to commit murder. In that on or about the same
date and
place as mentioned in the main count, accused incited the murder of
Antonio van Dalen.
Only
the State led evidence. The defence opted to close its 5 case
without leading any evidence. The State called evidence of
Jacobus
Hugo. He stayed at number 13 Keast Street. The Van Dalen's were
neighbours to him, they stayed across the street for
the past 18
years. He was friends with the deceased and the deceased's wife and
children would visit his family as well. On the
morning of 29
September at about 07:00 to 07:30 hours, accused number 2 knocked at
the front door. She spoke to his wife and
reported that the deceased
was on the ground. He got the impression that the deceased had had a
heart attack, so he went with
his son to check and they entered the
house through the garage door which led into the kitchen door that
was open. He saw the
deceased workbag on the floor. The deceased lay
in the lounge. He further saw a big broken vase, a knife and the
deceased's watch
lying on the floor in the lounge area.
He
ran to the deceased and felt his pulse. The deceased was already
dead. The deceased lay in a pool of blood. His son assisted
him to
turn the deceased to lie on his back. He lifted the shirt of the
deceased and they saw three stab wounds on 25 the
lower body. Ms
Hugo called the police. The front door was locked and the keys were
hanging on the key rack. Police
were
called to the scene. Accused number 1 and 2 were given accommodation
at his place, as they were not allowed into their house.
Mr Swan
arrived at his place. He had marks on his face and looked
suspicious to him, he then called the police.
Under
cross-examination the witness testified that he had no personal
knowledge of any abuse the deceased meted out on his family.
The
deceased's son had reported to him though that the deceased hit him
once or twice. He took this as some form of chastisement.
The
deceased's son, Marco, once told him about the molestation charges
laid against the deceased regarding accused number 2.
These charges
were later withdrawn as the accused number 2 was promised a bicycle
or a motorbike. Ms Emily van Dalen never reported
to him that the
deceased assaulted her. He was further cross-examined about the
discrepancies in the police statement he allegedly
made. It became
evident that the statement was not properly authenticated.
The
State proceeded to lead evidence of Dr Dempers, a specialist
pathologist. She compiled the
post-mortem
report.
According to her, death could have occurred between 01:00 25 and
07:00 a.m. The deceased died of multiple stab wounds
and
lacerations on the body. He had 47 stab wounds. The scalp
injuries were inflicted whilst the deceased was still alive.
All
injuries were contributory to death.
Sergeant
Rossouw testified that he was the first person to arrive at the
scene. He arrived at about 7:50. The first State witness
showed him
the deceased's corpse. His evidence corroborated that of Mr Hugo to
a large extent. He called the paramedics, who
certified the
deceased dead. He had observed stab wounds on the deceased's
chest, stomach, back of lower leg and
upper leg. There were wounds
on the neck. He handed the knife in for fingerprints testing. Ms
Emily van Dalen told him that she
did not know what happened. She
was asleep. She heard a scuffle in the lounge. She woke her
daughter up and they locked
themselves in the bedroom. She got out
about twenty minutes after the quietening of the scuffle.
A
trial-within-a-trial was held regarding the admissibility of the 20
statement made by Mr Pretorius. Morne van Greunen testified
that he
was the investigating officer in the case. He arrested Mr Pretorius
on 8 November 2006. Mr Pretorius volunteered to make
a confession.
He made the necessary arrangements for such a confession to be
taken. He never made any promises 25 to him.
He was not
influenced into making the statement. All his rights were explained
to him, including his rights to remain silent,
his rights to legal
representation, that he was not obliged to make a statement that he
was not obliged to make a confession
and he fully understood same.
He never promised to make him a State witness in the case. Then
he was a suspect.
Mr
Ivan van der Heever testified that he was working at Bellville as a
Detective Captain in the Serious Crimes Unit. He had 39
years
service. He was asked to take a confession from Mr Pretorius. He
completed the confession form as he interviewed Mr Pretorius.
He
explained to him his constitutional rights, which Mr Pretorius
further understood. No promises were mentioned by Mr Pretorius
to
him. The information as per statement was volunteered by Mr
Pretorius to him.
In
the trial-within-a-trial Mr Pretorius stated that he was fetched
from his house. He gave conflicting versions as to the promises
he
alleged were made by the State witnesses. There was no firm basis on
which he denied that his legal rights were explained.
The documents
contained clear evidence that his rights were duly explained. He
confirmed that the original of rights form was
given to him and he
had same. He told the inspector that he knew nothing. The
inspector did not make a promise to him, but
told him he would be a
witness. The statement was ruled admissible by the Court as a
statement that was made freely and voluntarily
by Mr Pretorius, who
was fully aware of his rights.
Inspector
Van Greunen further testified in the matter. His testimony was
corroborated, as I said, by that of Mr Hugo. According
to him there
were no signs of forced entry into the premises. All doors were
neatly closed. There was a panic button in the
main bedroom where
the two accused, that is accused number 1 and 2, allegedly hid
themselves. The alarm system was on. It was
strange to him that the
panic button was not activated during the scuffle. There also was a
cell phone on one of the bedroom
pedestals. It was not used,
even after accused number 2 and number 1 had emerged from the
bedroom shower.
According
to him, Angelique told her that the deceased had touched her
breasts. He had told her that he was in love with her.
He never
had sexual intercourse with her, though. The bloodstained knife
found in the lounge was similar to one of the knives
found in the
kitchen drawers. He saw Mr Swan on 30 September. He had an injury on
the nasal area. The accused, Mr Swan, told
him that he was there a
night before the incident, around 11:00, that is at night.
There was Angelique's fingerprint
found on a broken piece of an
ornament that was found in the lounge area.
Mr
Nel testified that in the statement, Mr Pretorius made a 5 pointing
out. He pointed out some areas that he and accused number
3 went to
throw the bag in. According to him the bag contents were
bloodstained clothing of Mr Roy Swan and an axe handle that
was used
in the commission of the offence. Mr Pretorius then took him to all
the scenes. The pointing out 10 was correctly compiled
by Mr Nel and
the accused's legal rights were duly and properly explained.
In
his statement, Mr Pretorius stated that during the end of May,
Angelique, Emily and Cindy were sitting around the table with
him. A
joke was passed about the killing of the deceased. He decided in
June that that was serious. One Sunday he slept over
at the Van
Dalen's with the sole purpose of murdering the deceased. The
deceased would come back from his night duty and then
they decided
not to do this. On Saturday, 16 September, they went to Roy Swan.
He personally asked him if he could not do
the job. Two weeks prior
to the murder, Emily enquired from Roy if he was serious and said
yes.
On
a Monday and Tuesday, he and Roy Swan slept over with the sole aim
of waylaying the deceased and murdering him thereafter.
They slept
over there on Sunday with the sole aim of further executing the
deed. He then withdrew by telling Roy, Angelique
and Emily that
he won't do this. Angelique, himself and Emily told Roy not to do
it.
In
her statement Emily van Dalen stated that she, Angelique and Roy
Swan were in her residence at about 06:30 in the morning on
29
September 2006. The deceased came. She, Emily, opened the door.
She told him to close the door as she was going to the
toilet.
Angelique was sleeping. Roy was in the sitting-room. She heard
blows. She woke Angelique up, they hid in the shower.
When it was
quiet, they went to the lounge and found the deceased lying on his
stomach. Roy went to the shower saying "alles
is verby".
She never assaulted the deceased. She went to report to the
neighbour, Mr Hugo, that Roy had assaulted the deceased.
In
the statement to Mr Nel, Mr Pretorius stated that he wanted 20 to
show him where the items were dumped as part of the evidence.
This
he knew. He further described the items. He further stated that he
and Angelique disposed of the bag and its contents. The
items were
thrown into the river on 30 September 2006.
From
the evidence the following became common cause. The deceased died
in his house in the morning of 29 September as he came
back from
work. It is Emily van Dalen who opened the door and then rushed
away to the toilet. A scuffle ensued between the
deceased and Roy
Swan. Emily van Dalen and Angelique were in the house and were
both aware that there
was
a commotion. They did not intervene. Emily heard blows. They went
to hide in the shower in the main bedroom and did not
raise alarms
or even call the police. The panic button of the alarm system in
the bedroom was not activated, though the alarm
system was on.
Roy
Swan had slept over at the deceased's place. There was an
agreement to kill the deceased between Ms Emily,
Angelique van Dalen, Mr Roy Swan and Mr Pretorius. Mr Roy Swan
attacked the deceased and inflicted serious injuries on him. He
claimed responsibility for about six of the 47 stab wounds sustained
by the deceased. There is no evidence to suggest that somebody
else
further assaulted the deceased and how. It cannot be argued that a
knife or knives, with which the deceased was stabbed,
was or were
provided by accused number 1 and 2.
The
Court would like to mention further documentary evidence 25 that
the State had tendered. A photo album depicting the
house of the
deceased and the injuries that he sustained and some other items; a
sworn statement by the pathologist; another
photo album;
220 admissions regarding the conveyance of the deceased and
that he never suffered any further
injuries, an SAP 14A form; the
accused number 2's statement; statement of pointing out, another
portion of the photo album, confessions,
a 105 statement by Mr Roy
Swan, (as he had already been convicted when he gave testimony for
the State), a statement by Roy Swan,
a letter by Roy Swan and a
statement Mr Swan made in Bellville; and Emily van Dalen's
statement.
The
Court found that there was a common thread that ran through the
statements of Mr Swan, Emily van Dalen and Mr Pretorius, in
that
there were several requests made by the Van Dalen's that the
deceased be killed because he was abusive. The plan was that
Christo
Pretorius would also kill the deceased by hitting him with an wooden
object. Roy Swan slept over at Van Dalen's place
a day before the
murder, the purpose was to kill the deceased. There was a common
agreement between the four of them and their
roles were specified.
Of course the Court knows that the accused number 2 would not have
any active participation in the murder
of the deceased.
Accused
number 1 would open the door for the deceased. Mr Roy Swan would
hit him with a wooden object. Mr Pretorius would
stab him with a
knife. Christo Pretorius, it is common cause, left the Van Dalen's
residence later the evening prior to the
murder. The plan
changed, Emily would stab the deceased. It was also a
statement that was unchallenged that
Emily provided money to Mr
Pretorius to buy a firearm with which to kill the deceased, though
that never materialised. Mr Pretorius
provided a wooden handle with
which the deceased would be hit. Indeed, Emily opened the door as
the deceased knocked. The deceased
was hit with a wooden object,
(which was disposed of by Mr Pretorius). Nobody alerted the police
of the plan. Emily provided
the black bag which was used to carry
the blood stained clothing of Mr Swan and the wooden object which
were thrown into the
river.
I
fully appreciate that the State's key witness was Mr Roy Swan, who
was a co-conspirator and the very person who hit and stabbed
the
deceased. Therefore, this Court must approach his evidence
with caution. The statements made by Ms Emily van
Dalen and also Mr
Pretorius, corroborate to a large extent Mr Swan's version,
especially regarding the conspiracy. The Court
appreciates that
though Mr Swan did not want to shoulder responsibility
alone, he did not exaggerate the roles
played by each of the
accused persons.
He
had ample opportunity to testify maybe that accused number 1
and 2 stabbed the deceased, or that accused 1 and 2 hit the
deceased
with a vase, hence the injuries on his head, or maybe that somebody
else, I mean, could have been invited by the two
to kill the
deceased, but he did not do that. He was honest enough to divulge
that accused number 3 was not
present
during the commission of the actual offence and that he had left the
evening before the commission.
The
accused opted not to challenge the un-contradicted material evidence
of Mr Swan, which is further corroborated by their statements
that
there was a prior conspiracy to kill the deceased. That Mr Pretorius
was not present when the actual murder was committed,
does not
exonerate him at all. There is nothing he did to frustrate the plans
at all. Abandonment of his role is not a defence
at all. From his
conduct of disposing of the instrumentality of the offence and the
clothing of Mr Swan, one reads re-association
with the offence. This
renders whatever withdrawal ineffective.
Accused
number 1 and 2 were fully aware of what was happening. They also
kept quiet and did not even intervene on behalf of the
deceased.
That there is no evidence detailing their actual roles in the
commission of the murder, does not 25 exonerate them
as well from
the liability as co-conspirators.
There
was no evidence led to gainsay the State's version regarding the
conspiracy itself and failure of the accused to testify
strengthened
the allegation by the State. And there was no reason to doubt
the credibility or reliability of
the corroborated
portion of the State's evidence.
It
is trite that conspiracy becomes complete as soon as the agreement
to commit an offence is reached. In the present case there
was a
conspiratory contract formed to kill the deceased. The contract was
implemented and there was discharge of the contract.
Even if the
deceased was not killed, the conspirators would still have been
liable to prosecution. It is trite that a conspirator
can withdraw
from the enterprise even at the last moment. And if he withdraws,
he may be acquitted on the main charge, but
he still remains liable
to be convicted only of the offence of conspiring to commit the
crime in question.
With
the evidence before it, the Court has arrived at the 20 following
conclusion. The only verdict that can be returned against
the
accused is that they are
GUILTY
on the first alternative count, that is conspiracy to commit murder,
that is all three accused.
NN
NGEWU,
AJ