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[2008] ZAWCHC 83
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S v Selestin (SS08/2007) [2008] ZAWCHC 83 (27 October 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE
NO
:
SS08/2007
DATE
:
27
OCTOBER 2008
In
the matter between:
THE
STATE
and
BERNARD
MUSSA SELESTIN
JUDGMENT
NGEWU,
AJ
The
accused appeared before the Court on three counts, count
1
was
murder, count 2 was robbery with aggravating circumstances and count
3 was attempted murder. The allegation by the State was
that on or
about 26 July 2005 and at or near Chad Road, Norfolk, in the
District of Wynberg, Cape Town the accused unlawfully
and
intentionally killed one Bertus Schreuder by stabbing him with a
knife and/or hitting him with a hammer and by gagging or strangling
him, and that the provisions of Section 51 of Act 105 of 1997,
the Criminal Law Amendment Act, were
applicable
in that the murder was planned or premeditated. In regard to count 2
the State alleged that on the same date and place,
as mentioned in
count 1 the accused unlawfully and intentionally induced submission
of Bertus Schreuder by stabbing
5
him
with a knife and/or hitting him with a hammer and by gagging or
strangling him, and did unlawfully and with intent to rob take
one
Mazda 323 Sting motor vehicle, registration number CA273553, Standard
Bank ATM cards, the property of or in lawful possession
of or under
the lawful control of Bertus Schreuder.
Aggravating
circumstances as defined in Section 1 of Act 51 of 1977 are present
in that on the occasion during which the offence
was committed,
whether before or after the commission of the offence the accused
inflicted grievous bodily harm to Bertus Schreuder,
and that the
provisions of Section 52 of Act 105 of 1997, the Criminal Law
Amendment Act, are applicable in that there were aggravating
circumstances involved as well as the taking of the motor vehicle.
In
regard to count 3, the allegation was that on or about the same
20
date
and place as mentioned in the main count, or count 1, the accused
unlawfully and with intent to kill, stabbed Ulrich Reinhard
Milongi
with a knife in the neck area, tied his hands and legs behind his
body and tied a black bag around his mouth. The Court
explained the
implications of the provisions of the Criminal Law Amendment Act. The
accused pleaded not guilty and he was initially
represented by Mr
Colenso
and later by Advocate
Gassas
.
A statement in plea explanation was tendered and duly signed by
5
the
accused in which is recorded the following;
He
was in Cape Town on the afternoon of the murder, being 26 July 2005,
[the murder which is now subject of dispute]. He received
a
telephone call from one Ebrahim Gumba, who persuaded him
to look after the deceased's motor vehicle. He did not
know that it
was the deceased's car and he indicated to him that it was under his
lawful custody and control. He knew many people
in Muizenberg,
Steenberg or Retreat area and often visited them at their houses. He
may have been to the deceased's house prior
to the murder, although
he did not recognise it from pictures contained in annexure A. A
bundle of documents was tendered to the
Court and also 220
admissions, with the leave of the accused.
The
accused admitted the identity of the deceased and that from
20
the
scene of the incident until the post mortem examination the deceased
suffered no further injuries. He did not dispute the correctness
of
the contents of the report. He did not dispute the photo album or the
specimens taken from the deceased's body
during
post-mortem examinations. He further did not dispute the blood
alcohol content results of the deceased, nor the photo album
depicting where the accused was arrested and where the vehicle
belonging to the deceased was found. He further did not
5
dispute
that the cause of death was a combination of blunt trauma injuries
and asphyxiation as per the medical report.
The
State led the evidence of a number of witnesses. Jeremy Hibbert
testified that he had known the deceased as a next door neighbour.
He
was from the airport when he heard a lot of screaming and shouting
from the neighbour's house. It was dark and he shouted across
the
wall. His son told him that it was Ryno who was screaming. Ryno also
stayed at the deceased's house and was there every day.
They then
jumped over the wall to investigate. They saw Ryno lying at the back
of the garden with his hands tied behind his
back. His legs were also
tied. He bled profusely and was trying to get up. They tried to calm
him and assured him that they would
get help and he must remain calm.
Mr Hibbert then looked into the house through the window and saw
Bertus lying in the passage,
there was no movement, he had no shirt
on, his shirt was open, he saw there was nothing to be done, the
house was neat. There was
no other person in the house, the
deceased's car was not in the garage. His son called the police and
his wife activated the
alarm. Andre Deon Martin testified that he was
the next door neighbour as well to the deceased. He was at home half
past six in
the evening on the day of the incident. He heard a scream
from the deceased's house, it
5
was
emanating from the deceased's backyard. He and his wife phoned the
police who arrived in less than ten minutes. They all went
to the
neighbour's house and found Mr Hibbert already there; the person
screaming was always seen at the deceased's yard; there
was no car
parked in the deceased's garage.
Richard
Tango testified that he stayed in Westlake vicinity, No 12, Erica
Avenue; he knew the accused through his wife, as the accused
stayed
in his wife's place with a partner for about a year sharing her
house with another couple. Mr Tango and his girlfriend
stayed
in a bungalow that was in the same yard. He woke up on the 28
th
of July, wanting to do his washing in the washing machine that stood
outside. He shifted the machine and saw a hammer under the
washing
machine. It had a big head and a brown handle. He had never seen
the hammer prior to that
20
date;
the hammer was handed over to the police. The police had been in the
area earlier on; there was blood on the hammer; he had
not touched
the hammer; he had a car that was parked under the window outside,
that is the accused. Mr Tango denied having
accused
Mr Selestin of having an affair with his wife or live-in partner. He
never was jealous of him at all. Mr Tango further denied
that he
would wash his clothes from a bucket as suggested by the accused. He
further denied that he fabricated evidence
5
against
the accused.
Victor
Ndaba testified that on 27 July 2005 he was on duty as a constable
attached to Kirstenhof SAPS and had six years service.
They were on
guard a certain vehicle whose owner had been
10
killed.
The car was parked at 23 Poplar Avenue, at the backyard. It was a
Mazda 323 Sting. They were waiting for fingerprint experts
and
photographers. He was with Inspector Fourie and they were seated in
an unmarked police vehicle. They had received a call from
the house
owners that they saw a suspicious car. It had arrived at night, they
did no know who the owner was and they do not know
who drove it
there. The vehicle was hidden at the back of the house and was not
visible from the front. The vehicle was locked,
the windows were
properly closed and it was not damaged.
In
a period of about half an hour the accused approached from Flamingo
Street, that was opposite their vehicle. He had a green Pick
'n Pay
bag and car keys in his hands. He went past them and he suspected
him. He called him when he was in front of house No 21
Poplar Avenue.
As the accused yelled back he inserted the keys in his pocket and
then looked at him. He said he was on his way
to his friend's place
up the street. He then demanded the
5
keys
and invited him to come with them to the suspected stolen vehicle. He
then pressed the immobiliser and the alarm went off.
The accused told
him that the keys belonged to his friend whom he had met in Cape Town
or whom he would meet in Cape Town. In the
Pick 'n Pay bag there was
a laptop wrapped in a plastic bag.
10
The
witness requested to search the accused and found a Motorola phone,
bank cards apparently in the deceased's name, a paper with
a bank pin
number and a loose MTN sim card. The accused was then taken to the
police station.
When
the fingerprint experts arrived and opened the car, they found the
accused international driver's license on the floor of the
car. The
witness questioned the accused about the license at the police
station and the accused said that he had lost it three
months ago.
The accused was then arrested, the laptop cover was found in the
neighbour's yard.
Dr
Linda Liebenberg testified that she was a qualified medical doctor
with MBCHB and a diploma in forensic medicine. She does autopsies
and is a pathologist stationed at UCT. She performed an autopsy on
the deceased. The head injuries he sustained were consistent
with
being inflicted with a hammer. The deceased had an oval indented
(indistinct) fracture, he died rapidly as he
5
swallowed
blood.
Martin
Clive Marais testified that he was an inspector and was attached to
the local Criminal Record Centre in Cape Town as a photographer.
He had received training in photography and attended various
courses, he also does videos and collects forensic evidence
at the
scenes. He was called to the scene at Chad Road, he photographed,
videoed and collected various forensic exhibits and blood
swabs from
the blood splattered through the house, they were sampled and sealed.
He kept them in his possession until he handed
them to the LCRC.
The plate in photo 19 of the photo album was the only one left out of
place, the house was neat. Food in it was
relatively fresh, it had no
mould. He also found a claw hammer as depicted in photo 51 of the
photo album. The hammer was forensically
tested and was excluded.
Inspector Flewin brought another hammer which was allegedly used in
the commission of the crime. It was
number 32/05 and was handed in
with other exhibits at LCRC, Cape Town.
Captain
Flewin testified that he was stationed at the LCRC, Cape Town, he
also was a qualified fingerprint, palm print and footprint
expert;
for 16 years he worked as a fingerprint expert. On the 27
th
of July 2005 at about 8:21 he was summonsed to 38 Chard
5
Road,
Kirstenhof where he searched for fingerprints and palm prints on a
plate rim which contained food on the kitchen top drawer.
The
fingerprint was duly lifted and was compared with a right thumb print
made by the accused and they matched. He found the seven
points of
similarity that they normally need to conclude that the fingerprint
belonged to that of the suspect. This led him to
conclude that that
fingerprint is that of the accused before Court, as no two people
share fingerprints. He also lifted a fingerprint
on the outside of
the middle of the rear-view mirror which compared with accused left
hand print that was in the deceased's car.
He also compared it with
that of the accused and there were seven points of similarity
identified and that also led him to conclude
that that fingerprint
was that of the accused before Court.
Captain
Ulrich Knoetze testified that he was the reporting officer, he had
DNA techniques qualifications and a BSC from UWC. He
received the
hammer that was properly sealed in an exhibit bag. Mr Mark Fassen
testified that received two large bags containing
smaller bags with
exhibits, they were properly sealed, they would not accept unsealed
bags for exhibits.
Constable
Matthews testified that he was called to the scene at
5
Chard
Road, everything looked normal and in place as they entered the
house. In the passage he saw the deceased lying in a pool
of blood.
He was tied around his feet and his hands were tied behind his back.
There was no forced entry into the house. They interviewed
Ryno
Anderson who was the survivor. He had stab wounds in the neck area,
and an arm problem due to the rope that was tied around
the neck.
They received a call regarding the deceased's vehicle on the 27
th
.
On the 28
th
Mr Tango contacted them about the hammer he found under the washing
machine. The hammer was bloodstained and dirty and it was exhibited
before the Court as exhibit I. The claw hammer found in the house of
the deceased was clean and was excluded on the fingerprints
testing.
The car was found behind the house at No 22 Poplar Avenue. They found
a bunch of house keys, deceased's diary, bank cards,
etc in the
rubbish bin at 23 Poplar Avenue. According to him the accused was
also known as Charles. He took two statements from
Ulrich Mihlongi,
the victim in count 3. One was whilst he was in hospital and the
other one whilst he was in the sheltered accommodation
arranged for
him. Both were duly signed and the commissioned. He said Mr Mihlongi
left the sheltered accommodation and they could
not trace him again
despite their diligent search. He was a Tanzanian and he did not
renew his refugee status, nobody knows where
he is. He checked with
the custom officials his new address but in vain. The State then
applied that the statements made by Ulrich
Mihlongi be admitted to
just give a clear picture to the Court of the actual issues or
incidents that happened on the day in question.
The statements are
not intended to prove the identity of the culprit at all. In the
interests of justice the statements were ruled
admissible by the
Court and were duly exhibited. The statements did not introduce new
evidence but were rather corroboratory of
the evidence the Court
already had. The statements were made sincerely and immediately after
the commission of the offence. The
events were still fresh in the
memory of the declarant and the declarant did not display any
incapabilities as to the narrative
ability. A reason was tendered for
the absence of declarant.
The
Court accepted the nature and probative value of the
20
statements.
Mr
Colenso
withdrew and Advocate
Gassas
took over the defence of the accused. According to Constable Matthews
where the accused stayed in Erica Road there was a yellow
unroadworthy Mazda belonging to the accused. It was just parked
there.
It is this witness who retrieved the hammer from under the washing
machine, that is Mr Matthews himself. It is untrue that
there was no
washing machine in the premises. The witness further found a blue
t-shirt, there was a staff ID card found in the
5
accused
room, it bore the name Charles and had a photo of the accused.
The
State also handed in a portion of the bail proceedings. Mr Selestin
testified in his own defence. He told the Court that he
was a
Tanzanian national, he came to South Africa in 2003. He has performed
various jobs. During the time of his arrest he stayed
at No 12 Erica
Road and had been there for not more than a year. His car was parked
next to the window, anybody could have come
to the premises any time
because it was an open yard. Only one vehicle could park on the
property. Mr Tango's wife would come to
him, that is to his room,
when they quarrelled, asking him to call the police. For that reason
Tango accused him of having an affair
with his wife. There was no
washing machine anywhere in the yard. Mr Tango would do his washing
from a bucket. He knew nothing
about the hammer. He did not know how
the hammer got there. He'd never seen the hammer before.
On
27 July 2005 Ebrahim gave him the car which he would hand over the
following day to him. He then woke up that morning and went
to John
to collect the car, that is the following morning. He would take it
to Ebrahim in Salt River, Cape Town. John stayed at
23 Poplar Road,
the vehicle was a Mazda 323. As he proceeded
5
there
he left his house open. On the 26
th
he was not at 38 Chadd Road, he was in Cape Town, he didn't know the
deceased, it is possible he knew Ryno as he had friends in
the area.
The fingerprint found on No 38 Chadd Road was possible as he might
have been there in the house, the police never took
him to the
10
house
or to Ryno. He had no visa when he came into the country. He applied
for papers in Cape Town under Bernard Mussa Selestin.
People called
him Bernard. The ID card found at Erica Road is known to him. He got
same in church, he joined the Tanzanian Christian
church and joined
its choir. He would attend meetings on invitation. The choir was
invited outside town. One Charles who was
selected to go did not turn
up. The choirmaster then came to his home and asked for his ID so
that he could step in. He had no
card. Then he gave the ID photos to
the choirmaster and the following day the choirmaster gave him this
card. The card bore the
names Charles Mussa (indistinct). He had the
card for many years. As he travelled to Dar Es Salaam he wasn't aware
that this card
was still with him. He insisted that his name was
Bernard Mussa Selestin. On the 27
th
he wanted to give Ebrahim his car. He went to the 32 Poplar Avenue,
people came to him demanding the keys, he gave them and the
white man
was also amongst the two men. They took him to the car, they pressed
the immobiliser and the alarm went off. He told
them that
5
the
car belonged to Ebrahim and he was taking the vehicle to Cape Town
station, that is Salt River train station. He had a laptop
and a
wallet, inside there were cards and the phone which were in the Pick
'n Pay bag. When he was going to Poplar Road he had
these keys and
the Pick 'n Pay bag. The car and the bag belonged to Ebrahim Gumba,
a friend of his. He drove it, he picked up
his girlfriend, he was
scared of parking it in his own residence and he parked it at a
friend's place and 23 Poplar Road.That's
where he was found with the
car. He had known Ebrahim through his brother and they stayed with
him in 2004. On the 26
th
he was in Cape Town looking for a job. In the afternoon he was called
by this Ebrahim. He asked to meet him in Fish Hoek. That
was at about
three o'clock. They had to meet at Fish Hoek train station at three
o'clock. He asked him to keep the car until the
following day, the
Pick 'n Pay bag was his as well, that is Ebrahim's as well. He said
he must keep same. He couldn't tell the
Court where Ebrahim was as he
is in custody. He did not try to locate Ebrahim as he was in custody.
He was arrested and incarcerated
though he told the police about
Ebrahim. That basically was the evidence before the Court.
The
Court wishes to highlight that when cross-examined the accused told
the Court that he got the card the day following the 5
visit of the
choirmaster. Mussa was his other name, that he admitted. He never
knew the address of this Ebrahim, all he knew
is that he stayed at
Site 5, Fish Hoek. He had had his telephone number but it got lost
when he got arrested. He is not sure
if he gave the police the
number of Ebrahim.
That
basically is the evidence that the Court has to weigh and balance.
Most of the evidence, I must say, was not disputed by
the accused.
He does not dispute that his fingerprints were found in the plate in
the house of the deceased. He further does
not dispute that a
fingerprint of his was found inside the deceased's motor vehicle. He
further does not dispute that the property
of the deceased, other
than the vehicle, were also found in his possession. He comes up
with a certain Ebrahim who had given
these items over to him. The
Court must state at this stage that
during
the State's evidence he failed to oppose the version by one of the
officer's that they took the accused round to locate
this Ebrahim
and they could not come up with the details of Ebrahim. They did
everything to locate Ebrahim but
there was no
cooperation from the accused and there is nothing that they could
have done.
According
to the accused he had to meet Ebrahim at Fish Hoek at
5
about
three o'clock that very day, being the 26
th
.
On the day in question the deceased was on duty, the neighbours of
the deceased heard shouting at about after six that evening.
There
is nothing to indicate that at work the deceased was robbed of his
vehicle. What we have on record is evidence that the
deceased was
robbed of his items after, and not before, three o'clock. But it
could have been after three o'clock which renders
it impossible that
Ebrahim could have had this vehicle before three o'clock. This the
Court is saying because according to the
accused Ebrahim called him
to meet him at three o'clock, they had an appointment for three
o'clock at Fish Hoek. Of course the
keys were found with the
accused, who admits having driven this vehicle to where it was found
at no 23 Poplar Road. It is the
owners who alerted the police of
this suspected stolen vehicle that was abandoned there at night, and
they did not know the owner.
In
other words there were no arrangements made that the car be kept
there. Furthermore the accused is coming with a story that
he got
the items belonging to the deceased from this Ebrahim to keep, he
would hand over same the following day, being the 27
th
.
Surprisingly the property of the deceased was found in the rubbish
bin at No 23 Poplar Road. The journals, the cards,
et
cetera.
We
did not hear from the accused that he had a mandate from
5
Ebrahim
to dispose of that property. This I am saying because this was
allegedly in the car of the deceased, but the property
was allegedly
in the custody of the accused and it belonged to the deceased. That
left many questions open.
What
furthermore is puzzling is that there was a laptop bag found in the
neighbourhood of No 23 Poplar Road, and the laptop found
in the
possession of the accused was wrapped in a plastic bag. The accused
stays at the place where a hammer was found The deceased's
blood was
found on the very same hammer. That is too much of a coincidence.
There was a fingerprint of the accused found in
the deceased's house
on a plate. The food was very fresh, prepared on the 26
th
,
that is the day of the death. This sort of tallies with the
statement made by Mihlongi that he told the police that he heard
a
microwave and plate movement from the kitchen as he was tied in the
backroom.
Coming
to the staff ID card. The accused claims he got this card in 2002,
as the choir or the invitation was for 2002, but this
card was
issued in 2000, February. That is very, very strange, I mean it
casts a shadow on the veracity of the accused evidence.
The evidence
that was tendered by the State witnesses was that the
5
information
they got from the accused was that he admit (indistinct) Ebrahim
(indistinct). He did not know his surname, but later
on the accused
testified that he had stayed with this Ebrahim, he was introduced to
Ebrahim by his brother. This Ebrahim was
a friend of his, in fact
they knew each other very
10
well.
From
the card it appears that it belonged to one Charles Mussa Darkwin.
Of course the accused has come up with a version that
he was
standing in for an old man called Charles, but the middle
15
name
Mussa, the accused also shares that name Mussa. What a coincidence!
He does not dispute that he is known as Mussa.
The
police officer testified that in the area where the accused stayed
he was known as Charles. Mr Mihlongi in his statement
20
makes
mention of a certain Charles, the Tanzanian. The staff card refers
to Charles, that the Court finds strange. The Court is
quite mindful
of the fact that what we have is not direct evidence and regarding
acceptance of circumstantial evidence there
must be two requirements
that that evidence has to meet, and it is the duty of the Court to
carefully distinguish inferences
from conjectures or speculations.
There can be no inferences drawn unless there are objective facts
from which the inferences
to be drawn are based. But if there are no
positive proved facts from which these inference can be made the
method of inference
then fails, and what is left is speculation. The
well known authority of
R
v Blom
1939 AD 188
still remains. The inference which the State pleads must
be consistent with all the proved facts and there must be no other
reasonable
inference drawn unless the one that the State seeks to be
drawn.
With
all evidence having been weighed and considered the Court has
arrived at the following verdict. The
ACCUSED
IS FOUND
GUILTY
OF ALL THREE COUNTS AS CHARGED.
NGEWU,
AJ