S v le Grange and Others (K/S03/2007) [2007] ZANCHC 3 (1 February 2007)

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[2007] ZANCHC 3
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S v le Grange and Others (K/S03/2007) [2007] ZANCHC 3 (1 February 2007)

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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case No: K/S
03/2007
Heard: 12-22/02/2007
Delivered:
01/02/2007
In
the matter:
THE
STATE
versus
JOSEPH
LE GRANGE Accused 1
HENDRIK
LAURENS VAN DER WESTHUIZEN Accused 2
PIETER
JACOBUS LE GRANGE Accused 3
JUDGMENT AND
SENTENCE AT P37
KGOMO
JP:
The three accused, Mr Joseph Le
Grange a male aged 57 years, Mr Hendrik Lourens Van der Westhuizen,
a male aged 29 years and Mr
Pieter Jacobus Le Grange (the son of
accused 1) aged 21 years, are arraigned on one charge of murder.
The State accuses them of
having murdered a boy named Biron Tiron
Phetlo, aged 13, at Prieska, Northern Cape on the 20
th
March 2005.
All the accused are
represented by an experienced advocate, Adv Ferdie Van Heerden, of
the Criminal Bar, Kimberley, on the instructions
of attorney Mundus
Van Niekerk of Prieska. The State is represented by Advocate Hannes
Cloete, a senior state advocate, of the
office of the Director of
Public Prosecutions.
At the inception of
the trial the State apprised the defence that it intends to invoke
the provisions of sections 51(1) and 51(2)
of the Criminal Law
Amendment Act, Act 105 of 1997, in the event of the trial
terminating in the accused being convicted. Attention
was also
drawn to the fact that should the Court find that accused 2 and 3
are not complicit in the murder of the deceased the
State will
contend, as stipulated in the Summary of Substantial Facts, that the
two are guilty as accessories after the fact to
the murder of the
deceased.
This judgment deals
with two matters: The application for my recusal from the case,
which I will dispose of first, and the judgment
on the merits of the
case. I dismissed the application for my recusal and reserved my
reasons, which now follow.
THE RECUSAL
During the course of
the trial the defence brought a substantive application for my
recusal citing the following incidents (summarised):
Accused 1 says in his
statement that the Court interrupted or curtained his legal
representative’s cross-examination on aspects
which were
important to him (the accused).
Response
: Throughout
these proceedings it became evident that counsel for the defence was
pandering to the whims of the accused, stating on
numerous occasions
that it was his instructions to do this or the other thing. He did
not seem to appreciate the fact that he was
conducting the trial, and
not the accused. Counsel decides which questions to ask or not to
ask, how and when to ask the questions,
which witnesses (including
the accused) to call or not to call, etc. See
R
v Matonsi
1958(2) SA
450 (A) at 456C-D
Schreiner
JA
stated:
“
Once the client has placed his
case in the hands of counsel the latter has complete control and it
is he who must decide whether a
particular witness, including the
client, is to be called or not. So in
Swinfen
v Lord Chelmsford
,
157 E.R 1436
at p. 1449,
Pollock,
C.B
, states the
court’s view that,
‘
a
counsel has complete authority over the suit, the mode of conducting
it, and all that is incident to it – such as withdrawing
the
record, withdrawing a juror, calling no witnesses, or selecting such
as, in his discretion, he thinks ought to be called, and
other
matters which properly belong to the suit and the management and
conduct of the trial’.”
No
specific instances of interruption or curtailment have been cited by
the defence, but I allude to only one. After lengthy
cross-examination
of the second State witness, Mr Jaco Botha, as
regards a piece of wire I enquired (record p 129(24) – 131(6)
“
HOF:
Mnr
Van Heerden, ek hoor nou wat u sê, maar dit blyk ten minste
gemeensaak te wees tussen wat u opdrag is en wat Curtis gesê het
dat
daar `n draad was. Nou watter punt wil u maak met hierdie
langdradige kruisverhoor oor `n draad wat daar was?
MNR
VAN HEERDEN
:
Edele, ek is besig om die geloofwaardigheid van die getuie te toets.
Curtis … (tussenkoms).
HOF
: Kom
op die punt af. Ek gaan u stop as dit die enigste rede is, u moet u
punt maak ek gaan u stop.
MNR
VAN HEERDEN
: So
ek mag nie getuies nou konfronteer oor hulle getuienis …
(tussenkoms).
HOF
:
Mnr
van Heerden, ek sê maak u punt. Ek gaan u stop. En as ek u gestop
het, dan mag u dit nie voortvoer nie. Want ek kan nie sien
watter
punt u maak, want u erken dat die draad daar was. Dit is u
instruksies.
MNR
VAN HEERDEN
: Edele,
met respek. As ek nie begryp … (tussenkoms).
HOF
:As
u nie u punt maak nie, dan gaan ek u nou stop.
MNR
VAN HEERDEN
: Edele, ek
versoek die geleentlheid om dit met u - te kan toespereek oor dit
wat u vir my sê.
HOF
: Ek
wil nie hê u moet my toespreek nie. Stel die vraag. En maak u
punt.
MNR
VAN HEERDEN
:
Meneer,
wat ek aan u stel is, dit was vir u snaaks dat hulle loop terwyl u
afspraak nie was dat hulle moes loop nie. Is dit korrek?
--- Dis
korrek.
So
u het seker gekyk
wat doen hulle, waarheen loop hulle? --- Ja, soos ek loop kyk ek om
waarnatoe is hulle rêgtig oppad.
As hulle iets vreemd
by hulle gedra het, sou u dit toe gesien het? Want u kyk mos nou
mooi na hulle? --- Nee, ek kyk sommer net vinnig,
want ek moet kyk
vir die karre wat van voor af aankom.
Kan
u op 20 meter, dis die helfte van die hofgebou – sal u in staat
wees om `n draad te sien? --- Ek sou hom kon gesien het.
Goed.
Toe gaan koop u kos. Is dit korrek? --- Dis korrek.”
As will be seen later
respecting to the judgment on the merits the question of the presence
of a piece of wire was no longer in issue
when Jaco Botha testified,
because it became common cause when Curtis Maritz, the first State
witness, testified. In fact, accused
2 and 3 acknowledged the
existence of the piece of wire in their statements made the day after
the incident and admitted as part
of Exhibit “A”.
The second ground was that the
Court did not afford the defence a sufficient opportunity to
consult with Mr Bolla Emmanuel Bosman
after the State case had been
closed. Counsel applied for a postponement to the following day.
Response:
I
refused to accede to the request because it was early in the day and
the defence was already in possession of Bolla’s statement.
Fifty
minutes after the adjournment I directed that the trial should
proceed, notwithstanding counsel’s intimation that they were
still
consulting with Bolla. It was evident from the State’s case that
Curtis Maritz was the only witness who saw the fatal stabbing
and
that Bolla arrived on the scene after the event and that he did not
find the accused on the scene. Counsel had already intimated
that he
was going to call accused 1 after the consultation. In the premises
Bolla would not have been the first defence witness.
Section 151 of
the Criminal Procedure Act, 51 of 1977 (the CPA) states, inter alia,
that if the accused intends giving evidence
on behalf of the defence
he/she shall, except where the Court on good cause shown allows
otherwise, be called as a witness to testify
before any other witness
for the defence. The purpose of this provision, it is trite, is to
lessen the possibility of an accused
tailoring his evidence to accord
with other defence witnesses. I point out that after accused 1 had
testified (including being cross-examined)
on Wednesday the 14
th
February 2007, the case was postponed to Monday the 19
th
February 2007, when accused 2 and 3 testified. Only then did Bolla
testify - on the 20
th
February 2007.
The third ground is
that accused 1 says he testified without knowing what Bolla was
going to testify.
Response:
This
cannot be correct for the reasons partly addressed above. In
addition this allegation implies that an experienced counsel went
into the trial without having consulted with the accused on Bolla’s
statement and had not done so at the close of the State case.
This
would speak of gross incompetence which the Court cannot be blamed
for.
Grounds 4 and 5
can be treated together:
“
4.5 Ek het toe getuig en
nadat ek klaar gekruisverhoor was het die Edele Regter my begin vrae
vra. Die Edele Regter se hele houding
was egter dat as ek sekere
vrae nie beter kan antwoord nie, gaan hy my skuldig bevind. Hierdie
intimiderende wyse van vrae stel
het my erg ontsenu. Die Edele
Regter se houding het van ongeloof gespreek.
4.6 Die Edele
Regter het ook vrae aan my gestel wat dit vir my duidelik gemaak het
dat hy my weer kruisverhoor. Die Edele Regter
het byvoorbeeld oor
aspekte gevra wat die Staatsaanklaer reeds oor gevra het en ek reeds
geantwoord het. Hy het ook aan my die stelling
gemaak met die
strekking dat aangesien dit kinders was het ons die aangeleentheid
nie verder geneem nie. Hierdie stelling is verkeerd
aangesien dit
maar een van my redes was. Die feit dat die Edele Regter my
klaarblyklik nie glo nie het duidelik na vore gekom.”
Response
:
This intimation is frivolous and borders on the vexatious. The
record will speak for itself, particularly at p 201(1) to 202(13)
and
at 250(7) to 258(25). The allegation is also so vague that nothing
more need be said.
“4.7 Die Edele Regter het ook tydens die verhoor opgemerk dat hy
nie Afrikaanssprekend is nie. Daar word van geen tolk
gebruik
gemaak nie en die verrigtinge is in Afrikaans. Aangesien die
Regter my getuienis nie op die vorige aspek gevolg het
nie, laat
ook die vraag ontstaan of daar nie getuienis verkeerd
geïinterpreteer word aangsien die Edele Regter nie
Afrikaanssprekend
is nie.”
Response:
What is particularly puzzling in this regard is that the context in
which I said that I am not Afrikaans-speaking has being woefully
distorted. I misheard accused 1’s counsel addressing Dr Isaacs in
the disrespectful form “jy” and not “u”. At p 15(3)
to (15)
the following dialogue took place between me and counsel:
“
(
MNR
VAN HEERDEN
) …Kan
u vir my sê dat of die rib wat deurdring is, is dit die kraakbeen
gedeelte … (tussenbei)
HOF:
Mnr van Heerden,
ek
is nie Afrikaanssprekend nie
,
maar ek weet nooit wie “u” en wie “jy” is nie.
MNR
VAN HEERDEN
: Wie
is u en ...?
HOF
:
Ja, u sê nou ”kan jy vir my sê.”
MNR
VAN HEERDEN
: Soos
die hof behaag, u Edele. Ons sal dit dan formeel hou.
HOF:
Of het die aanspreekvorm “u” weggeval? Julle moet net vir my sê
as dit gebeur.
MNR
VAN HEERDEN
: Nee,
nee, dit is korrek so, u Edele. Kan u vir my sê ---.”
(My
emphasis)
Response:
What more can one say? This is one of the examples that demonstrates
adequately that counsel had abdicated his duties and allowed
himself
to be dictated to by his clients. He clearly has no belief in the
truth of what is stated in accused 1’s paragraph 4.7.
Counsel has
appeared before me for about 8½ years; he has read numerous records
wherein I conducted the proceedings in Afrikaans;
he has read my
judgments given in Afrikaans, some of them reported. If it is
suggested that if you are Afrikaans you must be tried
by an Afrikaans
speaker then concomitantly the English must be tried by English
speakers and the Setswana speakers by the Batswana.
This is not what
the Constitution says or requires. Section 35(3) (k) thereof states
that every accused person has a right to a
fair trial, which
includes:
“To be tried
in a language that the accused person understands or, if that is not
practicable, to have proceedings interpreted in
that language.”
5.6
The
final ground reads:
“
4.11 My regsverteenwoordiger
is self met `n klag van minagting van die Hof gedreig aangesien die
Regter beweer dat hy die Regter
weereens as “jy” aangespreek het.
Ek het egter duidelik gehoor dat die woord ”U” gebruik word.”
Response:
At p 260(12) to (17) the record reads as follows:
“
MNR VAN HEERDEN
:
U Edele, maar verwag u van my om `n getuie te roep sonder dat ek
instruksies van `n kliënt het?
HOF
:
Mnr Van Heerden, as u vir my weer “jy” sê, “I will convict
you of contempt of court, right here. You have to apologise
and
withdraw that.”
MNR
VAN HEERDEN
: Ek
ontken dat ek vir u “jy” gesê het.
HOF
:
Speel bietjie terug, Mevrou. Speel terug.”
For some strange quirk counsel’s
“u” sounded like “jy” in my ears on both the occasions
referred to in this paragraph (5.6)
and the preceding one (5.5). M
ea
culpa
. The fact that the
recording was played back audibly in open court and proved that
counsel did not use the disrespectful term “jy”
to the Court
should have dispelled any apprehension that the accused’s counsel
risked being convicted of contempt of court. These
were b
ona
fide
errors which are
regretted.
The correct approach in dealing
with an application for recusal has been authoritatively dealt with
in
President of RSA v
South African Rugby Football Union
1999(4) SA 147 (CC) 177B-E (paragraph 48) where the Court declared:
“
[48] It follows from the
foregoing that the correct approach to this application for the
recusal of members of this Court is objective
and the onus of
establishing it rests upon the applicant. The question is whether a
reasonable, objective and informed person would
on the correct facts
reasonably apprehend that the Judge has not or will not bring an
impartial mind to bear on the adjudication
of the case, that is a
mind open to persuasion by the evidence and the submissions of
counsel. The reasonableness of the apprehension
must be assessed in
the light of the oath of office taken by the Judges to administer
justice without fear or favour; and their ability
to carry out that
oath by reason of their training and experience. It must be assumed
that they can disabuse their minds of any irrelevant
personal beliefs
or predispositions. They must take into account the fact that they
have a duty to sit in any case in which they
are not obliged to
recuse themselves. At the same time, it must never be forgotten that
an impartial Judge is a fundamental prerequisite
for a fair trial and
a judicial officer should not hesitate to recuse herself or himself
if there are reasonable grounds on the part
of a litigant for
apprehending that the judicial officer, for whatever reasons, was not
or will not be impartial.”
It is for the
aforegoing reasons that I dismissed the accused’s application for
my recusal as being devoid of any merits.
AD MERITS OF THE
CASE
The three accused have
pleaded not guilty to the charge. They admit having been on the
scene but deny that anyone of them assaulted
or murdered the
deceased. They stated in unison that accused 1 merely prodded the
deceased gently on his chest with an ordinary
walking stick which
was rubber-shod at the tip thereof and which would under no
circumstances have pierced one of the deceased
ribs and penetrated
his heart, as can be gleaned from the post-mortem report of Dr
George Isaacs.
The State’s key witness is Curtis
Maritz, a youth of 14 years who was 12 years old when the incident
took place on the 20
th
March 2005. His evidence will be treated with caution, firstly
because he was a single witness at the crucial stage when the fatal
injury is said to have been inflicted and secondly because of his
youthfulness and immaturity. See
Woji
v Santam Insurance Company Ltd
1981(1) SA 1020(A) at 1027H -1028E. Curtis was in the company of the
deceased and one Jaco Botha, a 17 year old boy who was 15
years old
during the occurence in question.
The evidence of Curtis
and Jaco is to the effect that two of the three of them were
golf-caddies for two gentleman. Curtis says
only Jaco and the
deceased were caddies and he merely accompanied them. The caddies
were paid a sum undisclosed to him and he
had no money on him. Jaco
states that it is correct that he was one of the two caddies but
Curtis, not the deceased, was the other
caddie. This discrepancy,
dispite Mr Van Heerden’s argument to the contrary, is of no moment
really. The importance of this
segment of the evidence merely goes
to show that the deceased was in the company of Curtis and/or Jaco
from before noon until he
was fatally wounded and that one or both
of them would have known how he sustained his injuries. There is no
countervailing evidence
in this regard.
According to Curtis
and Jaco they departed on foot to Prieska town from the golf course
at the close of play, which they put variously
between 16h00 and
18h00. Mr Van Heerden criticized these two witnesses for their
failure to pinpoint the time more accurately.
This criticism is
unfounded, because these children did not wear watches and merely
gave an estimate of the time. What matters
most is that their
undisputed evidence is that the two of them and the deceased left in
each other’s company. They separated
briefly in town when Jaco
went to buy food for the three of them with their meagre earnings,
which Jaco fixed at R 20-00 for each
of the two caddies. The third
friend, who was more indigent, was sponsored by the other two.
Curtis and Jaco
testified that they separated in the vicinity of Prieska Cafè.
They disagree on where exactly they separated.
When Jaco went to
buy food Curtis and the deceased went on a frolic of their own to
burgle a sports shop (the Sports Shop) which
belonged to Mr Rudi Van
Zyl. The information that the Sports Shop belonged to Mr Rudi Van
Zyl was supplied by the defence. Curtis
and the deceased got hold
of that notorious piece of wire. Curtis confessed that the burglary
was his and the deceased’s decision.
According to Curtis a hook
was fashioned from the pliable wire to enable them to fish the
clothing from the shelves but did not
succeed. Curtis says that it
was the deceased who attempted to hook the clothes through a window
that they found broken. It was
common cause between Curtis, the
accused and the investigating officer, Inspector Schutte, that the
window pane had been so broken
during a prior burglary.
Curtis says he
observed the three accused crossing the street in which they were
(Steward Street) and heading in their direction.
This caused them
to desist from their truancy and they sat on the stairs leading into
the Sports Shop and faced the accused, with
their backs turned on
the broken window. Accused 3 then accused them of having broken
into a greengrocer market (groentemark)
earlier.
What followed is
crucial and must come directly from the mouth of Curtis himself in
his evidence in–chief:
“
MNR CLOETE: Nou nadat dit nou
gesê is (the theft from the vegetable market), wat gebeur toe? ---
Toe ruk die ou omie die kierie
uit en toe druk hy vir Biron en steek
hy hom.
U sê hy vat die
kierie en nou moet jy vir ons mooi verduidelik. Wat doen hy nou met
hierdie kierie. --- Hy het die kierie en toe
trek hy hom op, toe trek
hy hom so uit dat dit `n mes is. Toe druk hy hom so en toe steek hy.
Ek
wil hê ons moet eers net `n bietjie stilstaan en bietjie gesels oor
hierdie uittrek. Jy verstaan. As hy die kierie gevat het,
watter
gedeelte het losgekom? --- Die voorgedeelte en die agtergedeelte.
Was
dit twee gedeeltes gewees? --- Ja.
Watter
gedeelte het die mesgedeelte gehad? --- Die handvatsel.
Die
handvatsel wat jy in jou hand hou as jy stap? --- Ja.
Kan
jy met jou hande min of meer vir die hof wys hoe lank was hierdie
mesgedeelte gewees? --- Ja, hy was net so lank.
Kan
ons net so kyk? Kan ons net weer kyk. U Edele, hy wys min of meer so
30 sentimeter. En wie sê jy het dit gedoen? --- Die ou
oom.
Beskuldigde
1, die man wat daar heel links sit. Is dit reg? --- Ja.
Nou
hy het nou hierdie twee stukke in sy hand. Die een is `n kierie
gedeelte en een volgens wat jy vir ons vertel was `n mesgedeelte.
Is
dit reg? --- Ja.
Nou
wat het hy gedoen met hierdie twee stukke wat in sy hand is? --- Hy
het hom met die een vasgedruk en toe met die ander een toe
steek hy.
Jy
wys met jou linkerhand hy druk hom vas? --- Ja, hy het met die
linkerhand vasgedruk die een hand en toe steek hy met die ander
regterhand.
Nou
kom ons gaan net `n bietjie terug dat ons dit duidelik kry. Hoe het
hy vir Biron vasgedruk met die linkerhand? --- Hy het hom
so gedruk.
Toe wil Biron keer. Toe steek hy teen die hand. Toe steek hy in sy
bors.”
Curtis says accused 1
stabbed the deceased three times. Once in the chest and twice in
his hand as the deceased tried to ward off
the stabbing blows.
Curtis relates that he then tried to flee to call the police, but
accused 2 pushed him back. The accused
left together in a hurry
along Stewart Street looking over their shoulders from time to time
and broke into a canter. At that
stage Jaco made his appearance.
Curtis called Jaco and reported the incident to him. Jaco scanned
the injury on the deceased’s
chest. Curtis showed Jaco the
direction in which the accused fled.
It was common cause
that the deceased only moved 11,2 meters from the stairs where he
was said to have been stabbed to the point
in front of a Prieska
Hotel, where he collapsed and died.
Jaco says as he
approached Prieska Hotel looking for Curtis and the deceased he
heard Curtis scream in his direction and shaking
his hands in front
of his chest nervously, like someone who was at his wits end. He
demonstrated what he saw Curtis do. He found
the deceased on the
pavement where he had collapsed (as earlier stated – 11,2 meters
from the stairs). He says the deceased,
who was still alive, said
to him: “Die boer het (my) gesteek.” Both Curtis and Jaco say
that at that stage one Mr Thomas
(the hotel owner) appeared on the
balcony above them, because there was some commotion. Thomas
enquired what the problem was and
was reported to by the deceased
and Curtis. All indications are that Thomas, unfortunately now
deceased, called the police because
they attended the scene shortly
afterwards.
Both Curtis and Jaco
say the blood bubbled from the deceased’s chest wound. This they
noticed at different stages when each one
of them had lifted the
deceased’s (powder-blue) T-shirt. Jaco says when he noticed that
the deceased no longer spoke to him
he was saddened (I think “angry”
is what he meant) and ran in the direction which the fugitives took
as pointed out to him
by Curtis. At Heuwel Street he turned right
and spotted the three accused still on a canter and moving further
away from the scene.
Accused 3 was about 20 meters (indicated) from
him and accused 1 and 2 a few paces further on.
Jaco informed the
Court that he and accused 3 went into an argument. Accused 3 picked
up a stone, hurled it at Jaco and asked him
what he wanted. Jaco
told him he wanted to verify who they were. He told accused 3 that
they may now flee because he knew them.
After an exchange of
insults they went their separate ways – Jaco returning to the
scene of the incident.
The accused’s
version on this aspect is that they did see a boy of about 16 or 17
years who was naked on his upper body. Jaco
conceded he had
discarded his shirt earlier at the scene. It was therefore common
cause that it was Jaco who accosted the accused.
The accused deny
that they were running away. They say they were merely strolling
after doing some window shopping after which
they passed by the
house of Mr Pieter Eckherd, accused 1’s son-in-law, whose child
was unwell. They say it was accused 2 who
spoke to Jaco. Jaco also
said something, but they could not hear what he was saying. I will
revert to this aspect and the significance
thereof.
The deceased was
already dead when he was removed from the scene. The defence
admitted formally that he sustained no further injury
until a
post-mortem examination was performed on his body. Curtis was taken
to depose to a statement the same Sunday evening,
completing it at
20h33. Curtis testified that he knew accused 1 as the man whose
wife managed Pep Store in Prieska. Inspector
Schutte says Curtis
gave him a description of accused 1 and was told by him that accused
3’s mother worked for Pep Stores. He
knew immediately who these
people were and where they stayed.
Inspector Schutte gave
evidence that he explained to accused 1 what brought him to his
house and asked him whether he was in town
and on the scene during
the relevant times. When he was satisfied that accused 1 was the
suspect described to him by Curtis he
warned him of his
constitutional rights. Accused 1 denied that he possessed a Sword
Cane walking stick in the nature described
by Schutte, who in turn
was given the description by Curtis. Accused 1 informed him that he
used a normal walking stick in town
and handed over a fixed walking
stick which was not capable of being dismantled as Curtis described.
The tip of that stick was
rubber-shod, ostensibly to afford a firm
grip on slippery surfaces. Schutte also examined other sticks found
at accused 1’s
home, but none answered the description of the
murder weapon. He arrested and charged accused 1 with the murder of
the deceased.
Accused 2 and 3, who were present at accused 1’s
home at the time, were not charged as they were not suspects.
It was common cause that the
police, in the course of their investigations, received information
that accused 1 gifted one Mr Jerry
Bouwer a Sword Cane, similar to
the one described by Curtis, some time during 1998 and thus before
the incident in question of
the 20
th
March 2005. This Sword Cane was handed in as Exhibit 1, with the
expressed understanding that it is not the murder weapon. When
the
Sword Cane was produced and Curtis’ comments solicited he said
without a moment’s hesitation that the object was the murder
weapon. He really should be understood to say that the instrument
was its true likeness.
The instrument,
Exhibit 1 or the walking stick described by Curtis, is an extremely
lethal weapon. The blade is very firm and strong.
It is razor
sharp on both edges and its point is very sharp and pointed. Dr
Isaacs had the following to say concerning the Sword
Cane:
“
MNR CLOETE
:
Ek wil u net verwys na BEWYSSTUK 1 wat `n kierie is. Ek het in
konsultasie dit ook aan u getoon. Ek trek dit uitmekaar en `n
lemgedeelte
kom te voorskyn. Dit is nie die bewering van die Staat
dat hierdie betrokke kierie die beweerde moordwapen is nie. Al wat
ek vir
u wil vra is as u kyk na hierdie tipe wapen en ek gaan net die
lemgedeelte aan u toon. Die tipe lem en so meer en die skerpheid
daarvan, sou so `n tipe wapen die wonde kon veroorsaak het wat u
gevind het?
HOF:
Kom laat ek eers vir u so vra, dokter. Hoe sou u daardie voorwerp
beskryf het wat aan u oorhandig is? --- Ek dink die beste manier
om
dit seker te beskryf, u Edele, is dit is `n tipe dolk, dalk `n klein
swaard. `n Mens sou dit sekerlik in `n swaard tipe van beweging
kon
gebruik eerder as die tipiese steekbeweging wat ons sien met messe
gewoonlik wat oorarm tipe van steke is en sou `n mens hierdie
gebruik
meer soos jy `n swaard sou gebruik wat dan `n voorwaartse
steekbeweging sou uitvoer met hom.
En die lem, is so 45
sentimeter. --- Ja, die lengte is ongeveer `n halwe meter, so 45
sentimeter sal ek sê. Die breedte van die
lem is so ongeveer 1½
sentimeter met natuurlik `n baie skerp punt wat snykante aan beide
kante het.
MNR CLOETE:
Ek wil net terugkom na die vraag. Sal so `n tipe wapen die tipe
wond kan veroorsaak wat u gevind het aan die oorledene? --- Dit
sal
dit baie maklik kon doen, ja.”
THE
ACCUSED’S EVIDENCE
I
now put some flesh to the accused’s defence. They say at about
17h45 or 18h00 on Sunday they left accused 1’s home to
check
on accused 1’s sickly grandson’s condition. At the scene
already described they saw the deceased and Curtis. Curtis
was busy
trying to hook clothing from the shelves of the Sports Shop. Note
this: They say the deceased sat on one of the stairs
with his head
cupped in his hands. This was meant to convey that the deceased
must have been injured when they arrived. I say
this because
accused 3, accused 1’s son also said in his written statement:
“Dat die seun wat nou
toe vooroor gebuig gesit het (a reference to the deceased) regop
gekom het, en het ek opgelet dat daar bruin-rooi
kolle op sy hemp se
voorkant was.”
In trying to convince
the Court further that the deceased was injured before they
encountered them accused 1 says that he saw two
injuries on the
deceased’s hand but the blood was already dry. Asked why he did
not see the brown-red stains or blots referred
to by his son,
because he (accused 1) maintained that when the deceased tried to
flee the scene of the burglary he pushed him back
with his
benevolent walking stick on the very chest, he could think of no
reason why he missed seeing the said stains.
Mr Van Heerden put it
to Curtis that it was likely that the deceased could have been
injured about an hour-and-a-half before the
accused arrived on the
scene because he has instructions that there was a fight in the same
vicinity then. No witnesses were produced
by the defence to
substantiate this allegation nor did the accused, who all testified,
allude to the scuffle. The defence version
that the deceased must
have been harmed before the accused accosted the miscreant deceased
and Curtis was abandoned in mid-air
for reasons that I will advert
to in due course.
The accused’s
account of events became a bit comical. They explained that they
prevented the delinquents from fleeing because
they wanted to phone
the police or Mr Rudi Van Zyl. They then discovered that none of
them had a cell phone and abandoned the
idea because the police
would in any event have taken a very long time to respond and would
nonetheless have released the boys
because they were mere children.
In the next breath:
No, the boys would have fought them. It was pointed out to them
that the post-mortem report shows that the
deceased weighed a
featherly 31,7 kg, was 148 cm tall and a boy of 13 and Curtis was 12
years old and even at 14 (when he testified)
he was very slight of
built and short of stature. The accused then intimated that they
feared the intercession of the crowds and
that they did not want to
get involved. Their excuse was shattered by the fact that the
streets in little Prieska were empty and
it was early Sunday
evening.
In the result the
accused never called the police, either from the adjacent hotel, or
from accused 1’s son-in-law’s place or
from accused 1’s home.
It turned out that the accused were staying a mere 700 - 800 meters
from the police station. State counsel
suggested to the accused and
later argued, convincingly I may add, that the accused never
intended to call the police because they
knew they had done
something wrong.
It dawned belatedly on
the defence that their hypothesis that the deceased was injured
before they reached the scene was hollow
and fatally flawed. They
devised a new prong. They theorised that the deceased was injured
after their departure from the scene.
Mr Van Heerden argued that
the evidence establishes unquestionably that when the accused took
their leave from the deceased and
Curtis there was no one else with
them and that Curtis is the prime suspect of the deceased’s death.
He contended that therefore
Curtis’ evidence must be treated as
that of an accomplice.
Curtis, Jaco and Bolla
testified that just before he died the deceased unleashed a volley
of “Ma se …, Ma se …” unprintable
epithets. He did not
say : “Curtis, ma se...” These witnesses thought that the
deceased insulted Curtis. Curtis himself
thought so. Mr Van
Heerden fastened on this situation to propound that the deceased was
venting his anger at his attacker, being
Curtis. This proposition
is startling in its absurdity:
Firstly, this was a
traumatic experience which produced some nervous excitement. There
was no opportunity for this 12 year old
to fabricate what occurred
and to exculpate himself;
If accused 1 and 3
saw what amounts to all the injuries that the deceased sustained
before they departed from the scene, what
further injuries could
Curtis have inflicted on the deceased? Besides, even from the
mouths of the accused the deceased and
Curtis sat side-by-side
without any acrimony when they arrived on the scene. It was common
cause that Curtis and the deceased
gained no spoils. There was
therefore nothing for them to fight over.
Dr Isaacs opined, and
the accused conceded, that the limp length of thin wire on the
scene could not have caused the injury on
the deceased. The
accused saw no weapon in the possession of Curtis or the deceased,
nor did Jaco, Bolla and Inspector Schutte.
I have no doubt that
it was Bolla’s evidence, or impending evidence before he was
called, that caused the defence to shift ground
and change horses in
midstream. Bolla was a potential State witness who was made
available to the defence at the close of the
State case and
testified as a defence witness. Addressing the Court and urging a
conviction as charged State counsel maintained
that Bolla did not
deviate from the essence of his police statement in his testimony
and asked that it be accepted. In his volunteered
Heads of Argument
defence counsel says:
“
11. Die getuie Bolla is `n
onafhanklike getuie. Daar word met respek aan die hand gedoen dat
Bolla `n geloofwaardige getuie was.
Daar is geen afbreuk gemaak aan
sy getuienis nie en hy is nie betrap dat hy homself weerspreek nie.
Meneer Cloete het dan ook op
rekord geplaas dat Bolla getuig volgens
die verklaring wat die polisie by hom afgeneem het.”
Contrary to how Mr Van
Heerden reads Bolla’s evidence, the latter infact hammered the
final nail in the accused coffin. Let us
examine briefly the
verbatim account given by Bolla as led in-chief by Mr Van Heerden:
“
MNR VAN HEERDEN
:
Nou toe u vir Biron en Curtis sien, kan u vir ons op Foto 2 wys waar
het u – waar was hulle en waarheen het hulle beweeg? ---
Hulle het
daarso gestaan by die China winkel, daar by daai telefoonboks. Toe
beweeg hulle oor – oor na die Hotel se kant toe.
Toe beweeg ek in
die winkel.
Kan u vir die Hof sê
toe u nou hulle sien beweeg, het u enigiets fout gesien by Biron? ---
Nee
Hoe
het hy gestap? --- Normaalweg.
Het
hy sy bors houvas? ---Nee.
En
Curtis, hoe het hy gestap? --- Hy het ook normaalweg beweeg.
Goed, wat doen u toe? --- Toe
beweeg ek in die winkel, gaan kry die koeldrank, toe kom ek uit en ek
betaal die koeldrank ---.”
Later:
“Goed, wat doen u toe?
U kry u kleingeld, wat doen u toe? --- Toe beweeg ek uit die winkel
uit. Wat ek uit die winkel beweeg,
toe roep Biron my.
Goed, nou nadat u by
die deur uitgekom het, hoe lank was dit voordat Biron u geroep het?
---Dit was nie lank nie. Ek was seker so
twee of drie tree van die
deur af weg.
Biron
roep vir u. Wat doen u toe? --- En toe staan en kyk ek mos nou. Toe
sien ek Biron sit daarso by die Hotel, daar by daai trappies.
Toe
sien ek hy houvas sy hand voor sy bors.”
I agree with both
counsel that Bolla was a credible witness, although they advanced
different view points. The significance of
Bolla’s evidence is
the following:
When he saw the
deceased in the company of Curtis before he went to purchase a cold
drink the deceased was uninjured. When he
returned in the space of
a few minutes the deceased was fatally injured and was immobalised
or died in a short space of time.
This eliminated once and for all
the accused’s ridiculous suggestion that the deceased was already
injured when they encountered
him and Curtis. The deceased did not
survive for more than an hour and a half as per the accused’s
earlier far-fetched conjecture;
Bolla corroborates the evidence
of Curtis and Jaco that the deceased clutched the location where
the injury was inflicted on his
chest. It will be recalled that
Jaco and Curtis had to remove the deceased’s hand to see the
injury (that still bubbled).
This puts a lie to the accused’s
evidence that the deceased cupped his head in his hands when they
confronted him and Curtis.
It seems totally illogical and
improbable that the deceased could have ignored the pain in his
chest and held his head in his
hands;
Bolla
further corroborates Curtis and Jaco in this further respect that
the accused were fingered as the culprits. He said (still
being
led by defence counsel
):
“Toe sien Jaco dat Biron sit en houvas sy bors. En toe vra hy
(Jaco) wie is dit en toe sê Curtis hy is daar om. Toe hardloop
Jaco in daai rigting wat Curtis wys.”
THE MEDICAL
EVIDENCE
The significant
findings that Dr Isaacs recorded in the post-mortem examination
report, Exhibit “F”, are the following:
“
(iv) That the main post-mortem
findings with respect to this body were:
WOUND
OF 2X1CM ON THE FRONT OF THE CHEST ON THE LEFT, 4CM DEEP,
PENETRATING THE 5
TH
RIB AND ENDING IN THE HEART.
WOUND
OF 1X1CM ON THE RIGHT WRIST, 1CM DEEP.
WOUND
OF 1.5X1CM ON THE BACK OF THE RIGHT HAND, 1 CM DEEP.
300
ML BLOOD IN THE PERICARDIAL SAC AROUND THE HEART.
WOUND
OF 1X1CM IN THE RIGHT VENTRICLE OF THE HEART.
(v) That, as a result
of my observations, a list of which follows I have decided:-
(a) That the death has
occurred 3.63 days prior to my examination, and
(b) That the cause of death is
CARDIAC TAMPONADE DUE TO
STAB WOUND IN THE HEART
.”
Dr Isaacs testified
that even though at 13 the deceased’s ribs were not fully matured
(they mature at about 18) a reasonable amount
of force must have
been used to drill through the deceased’s rib and penetrate his
heart. Elsewhere I pointed out that Dr Isaacs
had examined the
Sword Cane, Exhibit 1.
I am satisfied that the following
witnesses were honest and gave credible testimony which I accept: Dr
George Isaacs, Curtis Maritz,
Jaco Botha, Insp. Francois Schutte,
defence witnesses Bolla Emmanuel Bosman and Dr Cornelius Van der
Westhuizen, an orthopedic
surgeon who treated accused 1 in
1995/1996, December 2000 and on the 19
th
February 2007.
The evidence of
defence witness Mr Riaan Coetzee relating to the advertisement of
the Sword Cane in Getaway and other glossy magazines
between the
years 2000 and 2007 and their probable sale during this period is
irrelevant and suspect. There is no evidence that
Curtis saw a
Sword Cane before he saw the deceased being stabbed. There is also
no evidence that Curtis read the magazines and,
if so, whether he
would have seen the advertisement tucked away at p 154 of the April
2000 Getaway magazine or any later editions.
There is no indication
that Curtis had an interest in Sword Canes. Mr Cloete correctly
pointed out that the magazines are quite
expensive and beyond the
means of the Curtises of this world.
Coetzee’s evidence
is suspect because it contradicts accused 1’s evidence that the
Sword Cane had priced itself out of the market
as long ago as 1994.
Accused 1 explained in-chief as follows on this aspect:
“
MNR VAN HEERDEN
:
Tot wanneer het u kieries aangekoop? --- U Edele, die eerste kieries
het ons ongeveer in 1992 gekoop en ons het die laaste besending
in
1994 gekoop.
Wanneer het u die
laaste keer so `n kierie in die distrik gehad? --- U Edele, hierdie
spesifieke kierie was my laaste kierie en ek
het hierdie kierie vir
mnr Jerry Bouwer van Niekerkshoop as `n geskenk gegee in 1998.
Het
u op enige stadium sedert 1998 weer so `n kierie by u gehad? --- U
Edele nee, nog nooit nie.”
When Insp. Schutte
sought the Sword Cane tipe of weapon from accused 1 he said nothing
about his previous involvement in the sale
of Sword Canes. I
specifically enquired from him whether he had no recollection that
he once sold the Sword Cane or that he donated
one (Exhibit 1) to Mr
Jerry Bouwer in 1998 when Insp. Schutte sought the murder weapon.
He said he had no recollection. As State
counsel puts it, accused 1
had a right to remain silent but he had no right to mislead Insp.
Schutte by presenting to him an ordinary
walking stick under the
false pretence that he used it as support (or whatever) the
particular evening.
Dr Cornelius Van der
Westhuizen, who was called by the defence to show that accused 1
could not have run as stated by Curtis and
Jaco, suggested that
accused 1 could in fact have run at slow pace. He said that if a
patient experienced back problems which
made walking difficult, such
patient would always take the shortest routes accompanied by resting
intervals in the form of sitting
on objects on the pavements. Dr
Van der Westhuizen’s evidence did not advance accused 1’s case
at all.
Exhibit 2 is a walking
stick that belongs to accused 1. The defence handed it in after all
the State witnesses and all the accused
had testified, through the
accused 1’s son-in-law, Mr Eckherd. Dr Van der Westhuizen
responded thus to my questions on this
stick:
“
HOF
:
Nou hoe sal u daardie kierie (Bewysstuk 2) beskryf daar by die
puntgedeelte? --- Dis `n baie groot oppervlakte om jou te stabiliseer
--- as jy hom vir loop gebruik.
En wat sal u sê die
deursnit is? --- My vinger is 2cm, so hy is omtrent 4,4cm.
Sal
u hoegenaamd sê dat daardie kierie (Bewysstuk 2) hierdie beserings
(read from Dr Isaacs’ report) veroorsaak het? --- U Edele,
-- hier
kan ek die eerste keer seker wees dat daardie kierie kon nie die die
--- beserings veroorsaak het nie. Dis onmoontlik.”
All the accused were
pathetic witnesses. It is not often that one finds such poor
witnesses. In a way it could be expected that
their evidence would
not withstand any measure of reasonable scrutiny, let alone the
stern examination thereof by State counsel
as has happened. The
accused wallowed in the mire, because their defence was based on a
conspiracy of lies involving the three
of them and Mr Pieter
Coenraad Eckherd, who perjured himself in no uncertain terms.
The defence had an
intractable dilemma. Accused 1 had to explain why Curits would
place a Sword Cane in his hands as the murder
weapon and it turned
out that he traded with Sword Canes. He said Sword Canes were
displayed in the Prieska Pep Stores where his
wife worked and his
wife’s hair salon between 1992 and 1995; implying that Curtis
would have seen them at these businesses.
He was caught out in a
lie when State Counsel pointed out that the now 14 year old Curtis
would have been 2 years old in 1994 and
about 5 or 6 years in 1998.
What is unmistakable is that Mr Coetzee’s evidence has the effect
of flatly contradicing accused
1’s evidence, dealt with earlier,
on the availability of the Sword Cane.
Accused 1 could not
explain why Curtis would have picked on him. His counsel could not
explain who could have influenced Curtis
to fabricate evidence
against accused 1, when he argued that children are highly
suggestible and impressionable. It must be borne
in mind that
Curtis is the only witness who saw the stabbing and reported what he
saw to the police within a matter of minutes.
The mistake that the
defence makes is to approach this case as if the State relies on
circumtancial evidence. Curtis was not only
an eye witness, but a
good one at that. His maturity in the witness box belies the fact
that he was only 12 years old when this
incident occured. His
memory of the events was vivid, despite the lapse of two years since
the incident. His powers of observation
and description are
remarkable. He withstood a lengthy and searching cross-examination
with great fortitude. More importantly
his evidence was not only
corroborated as aforesaid, but also by the following persons:
Dr Isaacs on the
injuries;
The accused by
placing themselves on the scene;
The accused who
intimated that the deceased was prodded with a stick on the chest
by accused 1;
The existence of a
Sword Cane, Exhibit 1, that was traced to accused 1 – although
Exhibit 1 is not the murder weapon;
The accused’s lies
and fabricated evidence.
The fact that the
accused saw the injuries and blood stain on the chest of the
deceased.
FINDINGS
I therefore make the
following findings:
That Curtis and the
deceased attempted to pilfer some unspecified items from the Sports
Shop belonging to Mr Rudi Van Zyl when
the three accused
interrupted them;
Curtis and the
deceased attempted to flee, but accused 1 prevented the deceased
and stabbed him three times as Curtis explained
and caused the
injuries testified to by Dr George Isaacs who conducted the
post-mortem examination on the body of the deceased;
That the nature of the weapon used
by accused 1 (the Sword Cane), the defensive injuries inflicted,
the situation of the fatal
injury – namely the chest- and thus on
the most vulnerable part of the body, the force used to drill
through a rib and penetrate
the heart, the small stature of a boy
of the age of 13 years weighing a featherly 31.7 kg, the fact that
the deceased was in
a seated position when he was stabbed and that
he was unarmed, did not try to fight and accordingly posed no
danger to the three
big adult men (although accused 3 was 20) made
it manifestly clear that accused 1 intended to murder the deceased
and did so
with the direct intent to murder (
dolus
directus
).
I find that the State
has not produced any evidence that the three accused conspired
beforehand to murder the deceased. The State
has also not shown
that accused 2 and 3 knew that accused 1 was armed with the
afore-described lethal Sword Cane and that they
made common cause
with him when he pulled out the sword segment from the sheath
segment of the Sword Cane.
There is also nothing on record to
show that accused 2 and 3 overtly assisted accused 1 in the murder
of the deceased, nor does
it appear to me that there was anything
that they could have done to prevent the murder. They are
therefore not guilty of murder.
As regards what elements the State
has to prove where no prior conspiracy has been proved to commit an
offence see
S v
Mgedezi and Others
1989(1) SA 687(A) at 705I – 706B. Their complicity relating to
being accessory to murder is examined hereinafter.
I find that after
accused 1 had fatally injured the deceased the three of them fled
the scene. Whether they did so by walking
briskly or jogging is
immaterial. By taking a wide berth to accused 1’s home they
intended to evade detection and to discard
the murder weapon, which
was never traced.
I find that Mr Pieter
Coenraad Eckherd committed perjury when he testified that accused 1
had in his possession the stick Exhibit
2. Accused 1 used a Sword
Cane to murder the deceased and Exhibit 2 was not such an
instrument. Mr Eckherd ought therefore to
be investigated for
perjury or an attempt to defeat the ends of justice or any offence
which the Director of Public Prosecutions
decide upon.
ARE ACCUSED 2 AND
3 ACCESSORIES TO MURDER
In
S
v Morgan and Others
1993(2) SACR 134 (A) at 173j – 174f,
Corbett
CJ
had the following to
say:
“
The authors
Burchell
and Milton
in
their work
Principles
of Criminal Law
define an accessory after the fact as '. . . someone who unlawfully
and intentionally, after the completion of the crime, associates
himself or herself with the commission of the crime by helping the
perpetrator or accomplice to evade justice'.
As the authors point
out, the case law would seem to indicate two different approaches to
the definition of an accessory after the
fact: a wide approach which
merely requires that the accessory should have associated himself in
a broad sense with the offence
committed; and a narrower approach
which requires that the association takes the form of helping the
perpetrator to evade justice.
The authors appear to favour the latter
approach and the definition which they give is based on it---.
Insofar as it may be necessary in
this case to do so I would express a preference for the so-called
narrower approach and would endorse
the definitions compiled by
Burchell and Milton and Snyman. As the above-quoted definitions show,
intention or dolus is an essential
element of the offence of being an
accessory after the fact. It follows that it must be shown by the
prosecution that the accused,
the alleged accessory, knew that the
person whom he helped had committed a crime; and I shall for the
purposes of this case accept
that in this connection dolus eventualis
is sufficient to render the accused criminally responsible (see
F
R v Jongani
1937 AD 400
at 405, 406;
S
v Jonathan en Andere
1987 (1) SA 633
(A) at 643I-J). This would mean that if the accused
had knowledge of facts which indicated to him the possibility that a
crime had
been committed by X, and the accused proceeded to help X,
reckless of what the position was and with the required object, he
would
be guilty as an accessory after the fact.”
See to the same effect
S
v Williams and Others
1998(2) SACR 191 (A) at 193c-f.
In
S
v Nooroodien en Andere
1998(2) SACR 510 (NC),
Buys
J
in a Full Bench Appeal
(
Kriek JP
et
Van der Walt J
concurred) at 528a-i had
the following to say in this regard:
“
In
Munango
se saak op 440A - B het
Claassen
RP
, met verwysing
na die misdaadomskrywing van begunstiging in
Nkau
Majara v R
1954 AC 253
, gesê:
'With humble respect
I accept this quotation from the head-note of that case as correctly
stating our law. It is of course clear from
the details of that case
that it is not mere impassivity in the sense of failing to report a
crime to the proper authorities that
amounts to an offence. It is
that failure, coupled with the other circumstances of accused's
conduct, which constitutes such an association
with the crime that
thereby material assistance is rendered to the principal offender
after the completion of the offence.'
Ek verwys na bogenoemde aanhaling
omdat ek dink dat daar veel te sê is vir die proposisie dat 'n lid
van die publiek wat sien hoe
'n misdaad gepleeg word en dan stil en
rustig op sy weg gaan hom sekerlik nie skuldig maak aan begunstiging
nie. Die situasie is
egter anders as hy deur die polisie ondervra
word en hy dan ontken dat hy die misdaad sien plaasvind het. Dan
staan sy versuim om
die pleging van die misdaad aan te meld en deur
wie dit gepleeg is, nie meer alleen nie. Die vraag kan dan ontstaan
of hy die pleging
van die misdaad verswyg met die opset om die
misdadiger te help om die gereg te ontduik. As die antwoord op die
vraag bevestigend
is, is so 'n persoon volgens my oordeel skuldig aan
begunstiging. Ek vind aansluiting vir hierdie mening in die
meerderheidsuitspraak
in
S
v Jonathan en Andere
1987 (1) 633 (A) is op 645A - E. Daar is beslis dat die maak van 'n
valse verklaring in 'n gepaste geval kan neerkom op begunstiging.
Op
645B - E sit
Botha
AR
die feite
uiteen:
'Beskuldigde 1 het
van die begin af die misdaad probeer verdoesel deur uit te maak dat
die oorledene een of ander toeval gekry het;
by die
pleitverduideliking het hy 'n valse storie opgedis dat hy en sy
medebeskuldigdes van die een sel na 'n ander, waarin die oorledene
gelê het, oorgeplaas is, en daarin is volhard in kruisondervraging
namens hom by die verhoor. Die strekking van sy optrede was om
die
moordenaar(s) te beskerm; klaarblyklik het hy dit besef en hom
daarmee versoen. Beskuldigde 2 het by die pleitverduideliking
en in
sy latere verklaring aan die landdros, ook wesenlik dieselfde valse
storie opgedis en in kruisondervraging namens hom is daarin
volhard.
Dieselfde geld vir hom as beskuldigde 1. As gekyk word na beskuldigde
3 se pleitverduideliking en na die kruisondervraging
namens hom is
dit ook duidelik dat hy besig was om wesenlik dieselfde valse storie
te verkondig. Dieselfde geld ook vir hom as vir
beskuldigdes 1 en 2.
Bowendien
in die lig van die agtergrond, veral die bendeverband tussen die
beskuldigdes, en die ooreenstemmende valse elemente in
hul relase is
dit myns insiens ook duidelik dat daar in een of ander stadium voor
die verhoor 'n verstandhouding tussen hulle tot
stand moes gekom het
om die moord met sodanige valshede te verdoesel.'”
Having
examined the principles applicable to the offence of an accessory to
a crime I now have to apply these principles to the
facts of this
case. Accused 2 and 3 were approached by the investigating officer
Insp. Schutte on the 21
st
March 2005 to make witness statements to him. They were present on
the scene when accused 1 inflicted the fatal injuries on the
deceased. Accused 2 and 3 were not suspects and had not been
charged. They opted to make statements before accused 1’s
attorney,
Mr Mundus Van Niekerk. It was common cause that these
statements were made freely and voluntarily and whilst they were in
their
sound and sober senses. At the inception of the trial when
these statements were handed up by the defence the veracity thereof
were formerly admitted in terms of Section 220 of the
Criminal
Procedure Act
.
I deprecate the fact that the
investigating officer allowed accused 1’s attorney to take down
the statements, particularly in
that the attorney had consulted with
accused 1 since the previous evening, the 20
th
March 2005, being the evening of the occurrence. By all accounts
accused 2 and 3 had already been in communication with accused
1.
Taking down statements is an integral part of the investigation of
crime. It is the duty of the police to investigate crime
and not
that of attorneys. If witnesses are unwilling to co-operate the
State can always invoke the provisions of
Section 205
of the
Criminal Procedure Act to
achieve the same result; with the
understanding that a summonsed witness is entitled to legal
representation.
What is more
disturbing is that the attorney, an officer of this Court, who ought
to know better than the police inspector, agreed
to take down
accused 2 and 3’s statements knowing that there is a clear
conflict of interest with his client. As the evidence
has turned
out, it is axiomatic that if accused 2 and 3 were truthful they
would have implicated accused 1 in the murder of the
deceased. The
attorney knew what the allegations against accused 1 were and of the
fact that accused 2 and 3 were in his company.
If accused 2 and 3
are convicted, as it seems inevitable, the attorney must know that
he played no small part in their fate.
Conduct like this cannot be
tolerated.
In their statements to
the attorney both accused 2 and 3 admit that they were in the
company of accused 1 when the deceased and
Curtis Maritz (not
mentioned by name in the statement) were accosted.
Accused 2 on what is
crucial on this aspect says the following in the statement:
“
7. Dat oom Joop (accused 1) so
`n krom kierie by hom gehad het waarmee hy gestap het en wat so `n
rubberknop aan sy punt het. Oom
Joop het toe die een seun met die
rubberknop voor sy bors gedruk, en het ons verder geloop.
Dat
toe ons daar by die besigheid weg stap het die twee seuns absoluut
niks makeer nie, en het hulle ook in die teenoorgestelde
rigting
weggestap.
Dat
geeneen van ons enige mes of skrep voorwerp by hom gehad het.”
Accused 3, the son of accused 1,
stated
inter alia
in the statement:
“
8. --- Die ander seun (the
deceased) het met sy arms oor sy bors gevou, vooroor gebuk gesit.
Dat
die seun wat tot nou toe vooroor gebuig gesit het regop gekom het,
en het ek opgelet dat daar bruin-rooi kolle op sy hemp se
voorkant
was.
Dat
my Pa met `n kierie wat voorheen aan my Oupa behoort het, geloop
het, dog het geeneen van ons enige skerp voorwerpe of messe
by ons
gehad nie ---.
Dat
die ander seun toe probeer weg hardloop, en het my Pa hom gekeer
deur hom met die kierie terug te druk---.
Dat
kort voordat die TV nuus klaar was, het lede van die Prieska
Polisiediens by onse huis aangekom en my pa gearesteer het; volgens
hulle op `n klag van moord.
Dat
sover ek weet die twee seuns niks makeer het toe ons by hulle weg is
nie.”
In Court accused 1`s
defence dovetailed the aforequoted false statements. Accused 2 and
3 persisted throughout the trial in these
false statements. There
is no doubt that all three accused conspired to mislead the Court.
The intention of accused 2 and 3 was
clearly to defeat the ends of
justice so that their deception could assist the murderer, accused
1, to evade justice. The three
accused have to date concealed the
murder weapon, the Sword Cane. Alternatively, accused 2 and 3 have
actively associated themselves
with the concealment of the murder
weapon by accused 1. Accused 3 hurled a stone at Jaco when he
approached them to try and identify
them. This was done with the
intention of allowing accused 1 to evade detection. Accused 2 and 3
were present when accused 1
gave Insp. Schutte the harmless walking
stick, probably Exhibit 2, and they omitted culpably to expose
accused 1. Accused 3 in
fact went further by interfering unlawfully
with the duties of Insp. Schutte when he arrested accused 1.
There is no doubt that
the State has proved beyond a reasonable doubt that accused 2 and 3
are guilty of being accessories to murder.
I am not surprised that
Mr Van Heerden has intimated that should the Court convict accused1
of murder then he concedes that accused
2 and 3 are guilty as
accessories to the murder.
Why Mr Van Heerden called Mr
Eckherd at the death of the trial to literally perjure himself when
it was already evident to the reasonable,
discerning, right-thinking
audience which way the case was drifting is beyond me. See:
S
v E.M Mayesa
CA&R
68/2003, Kimberley, Delivered 10/09/2004 (Full Bench, Unreported) at
paragraph 10 where it was stated:
“
For the aforegoing reasons the
defence counsel should have refrained form calling R and Siyaka as
defence witnesses. But there is
a more fundamental concern that I
wish to express. I am unable to fathom what defence counsel wished
to achieve by calling the
14-year old child R save (a) to
perjure herself and risk prosecution for making two inconsistent
statements under oath; and
(b) to discredit herself and far from
advancing appellant’s case to damage it further; and (c) to
wantonly take up precious time
(See
S
v Motlhabakwe
1985 (3) SA 188
(NC) at 196E-F).”
In addition, I make
bold to say a prudent and astute counsel would have refrained from
representing accused 2 and 3, having regard
to what I have already
stated. Another counsel may have been more detached and may even
have clinched a deal with the State to
use accused 2 and 3 as
so-called
Section 204
Criminal Procedure Act witnesses
.
I know that what follows relative
to accused 1 is not quite what the poet Jan F E Cilliers had in mind
in his poem “Trou” when
he says:
“Ek
hou van `n man wat sy man kan staan.”
But
it amply makes my point
.
If accused 1 took responsibility for his deeds and pleaded guilty
there would not have been any need for his son, his son-in-law
and
his son’s friend to get themselves into trouble by deceiptfully
trying to protect him. From now on it is between him (accused
1)
and his conscience. He cannot lie to himself.
In the result I
make the following order:
Accused 1 is found guilty of Murder
–
dolus directus
.
Accused 2 and 3 are
found not guilty of Murder and are acquitted.
Accused 2 and 3 are
found guilty as Accessories to the Murder committed by accused 1.
The Director of Public
Prosecutions is requested to consider investigating a crime of
perjury or an attempt to defeat the ends of
justice or whatever
crime, if any, may have been committed, against Mr Pieter Coenraad
Eckherd of Prieska who gave evidence in
this case.
SENTENCE:
15/05/2007
Kgomo
JP:
This case involving
murder and accessory to murder speaks of man’s inhumanity to his
fellow human being that society should not
be heir to. What is it
that triggers that inner vice in a father of adult children to take
a sword and plunge it into the heart
of a 13 year old urchin who is
seated, unarmed and not posing any danger to his assailant.
Wherever the answer may lie, this was
undeniably one moment of
madness on the part of accused 1 which is bound to cause a lifetime
of sadness in the lives of both families
– the victim’s and the
culprit’s.
Accused 1 has been
convicted of murder with direct intent. I have found that the murder
was not premeditated nor was it planned.
In the latter two
instances the Legislature has, in
Part 1
of Schedule 2, of the
Criminal Law Amendment Act, 105 of 1997
, ordained a sentence of life
imprisonment, unless substantial and compelling circumstances are
found to exist. The murder that
accused has been convicted of
resorts under the category of “murder (committed) in circumstances
other than those referred to
in
Part 1”
of Schedule 2. For this
type of murder, for a first offender, which accused 1 is, a minimum
sentence of 15 years is decreed, unless
substantial and compelling
circumstances are apparent which would permit the imposition of a
lesser sentence.
Those are the provisions, in black
and white, and not, as Mr Van Heerden for the accused, has contended
that 15 years is the upper
limit. The said
Criminal Law Amendment
Act has
not taken away the powers of a judge reposed in him/her
under the common law or Sections 165, 169, 171, 172 and 173 of the
Constitution,
Act 108 of 1996. It could also never have been the
intention of the Legislature that irrespective of how foul a murder
might be
a sentence of life imprisonment cannot be imposed if it was
not “planned or premeditated” or when it fell under the category
of murders listed in clauses (b), (c) and (d) in Part 1 of Schedule
2. See
S v Malgas
2001(1) SACR 469 (SCA)
at 481h where the Court stated:
“
A. Section 51 has limited but
not eliminated the courts’ discretion in imposing sentence in
respect of offences referred to in Part
I of Schedule 2 (or
imprisonment for other specified periods for offences listed in other
parts of Schedule 2).”
The State adduced the
evidence of the deceased’s stepmother, Ms Miekie Moliena Phetlo.
She testified that she brought up the
deceased as her own from a
tender age. They were very close. The deceased lives vividly in
her memory, so mush so that she has
on occasion dished up for him
only for reality to plummet her back to earth. The deceased had
hopes and dreams. His ambitions
vacillated between becoming a
police officer and an advocate. He wanted to make a difference to
the lives of other people and
make the country a better place to
live in. His dreams came to an abrupt end. His demise was swift.
Ms Phetlo was candid about
the deceased’s flaws. That he was
derailed by the death of four of his friends before they reached
their teens. The death of
his father and another family member
merely served to exacerbate the situation. He found it difficult to
come to terms with these
losses. There was also the bad influence
of peer pressure to contend with. He fell into some delinquency and
ended up in a reformatory,
from which he escaped but was never
returned to. The family and a psychologist counselled him and he
had started to pick up the
broken pieces. The defence went out of
its way to dig up all the dirt that it could lay its hands on to
tarnish what was left
of the image the deceased’s family and
friends cherished so fondly. To what end? Such insensitivity is
hard to understand.
What is certain is that the deceased did not
deserve to die.
The following are
aggravating factors in this case:
Murder in itself is a
very serious offence, the most serious in South Africa;
The murder was
perpetrated on a defenceless child who posed no danger to accused
1. He stood 148cm tall and weighed a featherly
31,7kg;
An extremely lethal
weapon, a sword cane, was used to murder the deceased. The
deceased was stabbed three times, which goes to
show a great
measure of deliberation;
The murder was
unprovoked. It was not contended by the defence that the accused
was angered by the children trying to steal from
the Sports Shop.
Mr Van Heerden also stated that he was unable to address the Court
on the motive for the murder because accused
1 protests his
innocence;
Having stabbed the
deceased accused 1 fled the scene with his co-accused and made no
attempt to render assistance to the mortally
wounded deceased;
The accused have
concealed the murder weapon which has to date not been recovered;
Accused 1 has denied
liability even in the face of overwhelming evidence and still
persists therein;
Accused 1 has shown no remorse.
On the contrary he has conspired with his co-accused that the
latter give false declarations
to protect him. He has also
conspired with his son-in-law, Mr Eckherd, to give perjured
evidence in an effort to exonerate himself.
Mr F A Krös, a social
worker and probation officer attached to correctional Services,
Kimberley, has stated that an accused
who does not feel or show
remorse in the face of strong evidence proving his guilt, is
normally not your prime candidate for
rehabilitation. More will be
said on this report when mitigation is dealt with.
There are two
conceivable motives why the deceased was killed:
The first is that
the deceased and his friend, Curtis Maritz, were falsely accused
of having broken into a vegetable market
on a previous occasion
and were committing another crime. So accused 1 took the law into
his own hands; and
The deceased was black and
accused 1 is white. Disparaging things were said by accused 1 and
his son, accused 3, concerning
these troublesome youngsters, whom
they called street children. The deceased and Curtis Maritz were
not street children.
There being no conceivable further reason
why the deceased’s life was cut short at its embryonic stage the
only reasonable
conclusion is that the attack had a racial motive.
See
S v Mbotshawa
1993(2) SACR 468 (A)
at
470b-f and 471h – 472c and
S
v Salzwedel & Others
1999(2) SACR 586 (SCA)
at 593d-f whereat Mohamed CJ held:
“
I
can find no fault with the finding of the Court a quo that the racial
motive which influenced the appellant to commit a serious
crime must
in the circumstances of the case be considered as an aggravating
factor.'
Substantially
the same temper should inform the response of South Africa to serious
crimes motivated by racism, at a time when our
country had negotiated
a new ethos and a clear repudiation of the racism which had for so
long and so pervasively dominated so much
of life and living in South
Africa. The commission of serious offences perpetrated under the
influence of racism subverts the fundamental
premises of an ethos of
human rights which much now 'permeate the processes of judicial
interpretation and judicial discretion' including
sentencing policy
in the punishment of criminal offences.”
All the accused have
suggested that Curtis Maritz murdered the deceased. On record
there is absolutely no grain of evidence to
remotely justify this
suggestion. All the accused have repeated this preposterous
accusation in the reports to the social workers,
the correctional
services officer and clinical psychologist, Ms Riana Cronje. They
did this despite my finding (at paragraph
31 of the judgment)
showing why the accusation was absurd. The accused are adamant
even in the light of the deceased’s stepmother,
Ms Moliena
Phetlo, who brought him up, testifying that Curtis and deceased
were related, grew up as brothers, were inseparable
friends and
would never resort to violence against each other. This evidence
remains uncontroverted and was not challenged at
all in
cross-examination, let alone discredited.
I take a dim view of the fact that
Curtis Maritz was accused by the accused of being the murderer.
Counsel should not in good
conscience have argued this point. I
have no doubt that it is defamatory of Curtis Maritz and an
aggravating factor against the
accused. In
LAWSA
:
vol 14 at p 276, under legal practitioners the following is stated,
but is apposite to criminal cases as well:
”
An advocate will not be held
liable for defamation if he sets out in a pleading allegations in the
truth of which he has no belief,
unless he knows that he will not be
able to support them by evidence at the trial. Counsel who has no
belief in the truth of an
assertion and knows he has no evidence to
support it is not entitled to put it to a witness during
cross-examination.(
Moolman
v Slovo
1964
(1) SA 760
(W)
;
Basner v Trigger
1946 AD 83
, 107;
Gluckman
v Schneider
1936 AD 151
,
164,
166
;
S
v Radebe
1973
1 SA 796
(a) 814D
;
bar rule 3.3.3.4.) ”
Having made these
adverse comments, in respect of accused 1 in particular, it becomes
necessary to shift the search light to the
personal circumstances
and other mitigating features that individualise their positive
personal attributes.
This brings me to these salutatory
remarks by
Du Toit AJ
in
S v Thonga
1993(1)
SACR 365(V)
at 369b-d:
“
The trial court in a criminal
matter after conviction seeks to identify an effective sentence. This
requires of the trial court true
and objective consideration of all
relevant factors, so as to further and eventually satisfy as best as
is possible, the well-known
purposes of punishment, namely
retribution, deterrence and rehabilitation. In order to achieve this
end, the trial court endeavours
to serve the interests of society,
without losing sight of the realistic fact that the offender is and
remains a member of that same
society. Injured feelings and interests
of complainants (and close relatives), as well as the attitude of the
community, are relevant,
but equally relevant are the consequences of
punishment for the offender.”
I
pause here to remind everyone that Mr Giel Mcdonald, a councellor for
the Prieska region, testified how the community was up in
arms
against this senseless murder.
At p 370b-c the Learned Judge
continues:
“
A judicial officer should not
approach punishment in a spirit of anger because, being human, that
will make it difficult for him
to achieve that delicate balance
between the crime, the criminal and the interests of society which
his task and the objects of punishment
demand of him. Nor should he
strive after severity; nor, on the other hand, surrender to misplaced
pity. While not flinching from
firmness, where firmness is called
for, he should approach his task with a humane and compassionate
understanding of human frailties
and the pressures of society which
contribute to criminality.”
See
also:
S v Du Toit
1979(3) SA 846(A)
at 857H
– 858A.
More currently the Supreme court
of Appeal stated authoritively in
S
v Malgas
(supra)
at 482c-f
that:
“
F. All factors ---
traditionally taken into account in sentencing (whether or not they
diminish moral guilt) thus continue to play
a role; none is excluded
at the outset from consideration in the sentencing process.
G. The ultimate
impact of all the circumstances relevant to sentencing must be
measured against the composite yardstick ('substantial
and
compelling') and must be such as cumulatively justify a departure
from the standardised response that the Legislature has ordained.---
I.
If the sentencing court on consideration of the circumstances of the
particular case is satisfied that they render the prescribed
sentence
unjust in that it would be disproportionate to the crime, the
criminal and the needs of society, so that an injustice would
be done
by imposing that sentence, it is entitled to impose a lesser
sentence.
J.
In so doing, account must be taken of the fact that crime of that
particular kind has been singled out for severe punishment and
that
the sentence to be imposed in lieu of the prescribed sentence should
be assessed paying due regard to the bench mark which the
Legislature
has provided.”
Ms Riana Cronje, a
clinical psychologist, has compiled a report in respect of each one
of the accused. She describes accused
1 as a person who is not
aggressive by nature and not prone to being manipulated and that his
intellectual capacity is above average.
She goes on to observe:
“
Hy gee voorkeur aan
deurdagte eerder as impulsiewe optrede
.
Hy is waarskynlik realisties en prakties en nie sentimenteel nie.
Hy is skerpsinnig, internaliseer gevoelens en emosies en verkies
om
sy eie besluite te neem. Hy mag ongeduldig wees, is
perfeksionisties, en vertrou sy eie oordeel.
Hy
sal waarskynlik sosiaal korrekte optrede bo spontaneïteit verkies
.
Hy mag gou ontsteld raak, dikwels bekommerd wees, moedeloos raak en
homself oor eie foute verwyt. Hy is baie sterk werk georiënteerd
en
is opmerksaam ten opsigte van andere se gedrag en emosies sonder om
werklik kommentaar daaroor te lewer of emosioneel betrokke
te raak.
Hy
beskryf homself as `n stil en hardwerkende mens. “
Ek
is nie opvlieënd van geaardheid nie maar word soms kwaad maar weer
net so gou normaal
.”
Hy beweer dat hy baie goed met mense oor die weg kom en sê “ek is
ernstig oor my familie en wil nie graag sien dat enige
van hulle te
na gekom word nie. Sal uit my pad gaan om hulle te help.”
Accused 1 certainly
exhibited none of these attributes when he inflicted the fatal injury
on the deceased or when he dug a hole for
his son and his friend to
bury themselves in.
Accused 1 persisted in his denial
of any involvement in the murder to Ms Cronje , Mr F A Krös a
social worker attached to Correctional
Services and to Ms A
Conradie, a social worker in the Department of Social Services. On
this point accused 2 and 3 denied having
witnessed the murder and
the fact that they are complicit as accessory to the murder
perpetrated by accused 1. Accused 2 and 3
were also assessed
psychologically by Ms Cronje and Mr Krös on their susceptibility to
correctional supervision, whereas their
pre-sentencing reports were
compiled and presented by different social workers as the one who
reported on accused 1. No disrespect
is intended but it would be
superfluous to deal with all the reports separately because the
compilers in essence come to the same
conclusion. This is partly so
because of the facade that the accused have conspired to keep up and
to some extent because the
compilers admittedly compared notes. No
criticism is intended either.
As far as accused 1 is concerned
all the reports paint a glowing picture of him. They point out that
the murder and the manner
in which it was perpetrated, according to
the judgment is inconsistent with the profile of accused 1 and his
character. The refrain
was akin to and reminiscent of the
contra
naturam suam
principle
which is, of course, not applicable to people.
I accept that accused 1 was good
human material until he committed the office in March 2005. At that
stage he was 55 years and
a first offender. Being a first offender
is a strong mitigating factor. He is turning 58 years on the 29
th
June. He was born on the 29
th
June 1949. Whilst he is not old, he is also not a “spring
chicken”. I accept that he had been a good father to his children
and a good husband to his wife. I am also satisfied that he is
afflicted by a sore back, which Dr Van Der Westhuizen testified
to.
I note, however, that accused 1 greatly exaggerated this infirmity.
It was stated in all
the pre-sentencing reports that accused 1 has a short temper but
knew how to defuse a conflict situation.
I am not sure how valid
this point is because he failed to handle a situation where two
urchins were not confrontational but, on
the contrary, trying to
flee from accused 1 and his co-accused.
As regards his
community involvement Ms Cronje notes that accused 1 and his family
were involved in a project to assist children
from disadvantaged
backgrounds from their misery but discontinued his involvement when
he was arrested. I am sceptical about the
sincerity of this
information supplied to the psychologist. During the trial and thus
before his conviction I enquired from accused
1 concerning his
community involvement. He said he was too busy at work and worked
long hours. Thereafter there was an oblique
and half-hearted
reference to his participation in the upliftment of poor children.
Asked why, with this experience, he did not
contact the parents of
the two delinquents he said, amongst many flimsy excuses, that he
did not want to be involved and that in
any event, the parents of
such children did not care.
All the compilers of
the various reports on accused 1 (they all testified) were ad idem
that for accused 1 only a lengthy prison
sentence was appropriate.
Mr Van Heerden did not argue otherwise. Both counsel were agreed
that there are substantial and compelling
circumstances and that
life imprisonment would be inappropriate. I agree.
The following factors
can be noted as reducing the moral turpitude of the crime and
therefore constitute mitigation factors:
The accused is a
first offender;
He committed his
first offence at age 55. He is turning 58 and therefore, in the
punishment context, relatively advanced in age;
His health is not
that good. He suffers from backache, he has some knee trouble and
is hard of hearing;
He has been working
all his life and supported his wife and children;
He has been involved
in some limited community and church services;
The murder was not
premeditated.
Cumilitively
considered, these factors do constitute substantive and compelling
circumstances.
ACCUSED 2: MR
HENDRIK VAN DER WESTHUIZEN
He was born on the 15
th
December 1977. He turns 30 at the end of the year. He was a mature
27 years old when the offence was committed. Mr Cloete for
the
State has rightly pointed out that accused 2 had been exposed to the
trials and tribulations of the outside world because he
worked in
London, England, from 2002 to 2004 as a security officer, a
construction worker and a busconductor. Accused 2 also worked
for
10 months (with accused 3) in North Carolina, USA. One would have
thought that having been a security officer for such a length
of
time he should have known better how to deal with unarmed young boys
trying to steal property through a broken window.
Accused 2 is unmarried
but has a young daughter which he has been maintaining. He has
worked throughout and shows signs of being
a responsible member of
the community. He attained his matriculation in 1996 and abandoned
further studies due mainly to his poor
performance at school, lack
of concentration and hyperactivity.
The reports portray
him as a follower and not a leader, easy to influence, a person who
prefers to please everyone and would try
by all means to avoid any
confrontation. Unlike accused 3, apart from making the false
declaration to exonerate accused 1 from
the murder charge, which is
an extremely serious offence, he did nothing else overtly.
ACCUSED 3: PIETER LE
GRANGE
He is the son of accused 1. He was
born on the 12
th
December 1985. He is turning 22 in December and was only 19 years
old when the offence was committed. He only attained Grade
8 at
school. According to him and his parents he left school because he
had a learning problem. Not so, said the principal to
the social
worker, Mr R Van Staden. He left
“vanweë
sy swak aanpassing en ondermyning van onderwysers se gesag sowel as
sy konflik met ander kinders op skool.”
A positive aspect concerning his studies is that he managed to pass
his matriculation examinations through private studies.
Accused 3’s parents, and he as
well, portrays accused 3 as a mild-mannered person. As pointed out
above he was everything but
mild-mannered at school. I am mindful
that he was still a child. However, during the murder incident he
was already in his 20
th
year. He is the one who confronted the deceased and Curtis Maritz
and accused them of having broken into a green-grocery store
on a
previous occasion. When Jaco Botha (then about 15 years) followed
the three accused shortly after the murder, in order to
identify
them, it was accused 3 who hurled a missile at him to deter his
advance. Further, when Inspector Schutte informed
accused 1 that
he was arresting him for the murder accused 3, acting independently,
obstructed the police officer and maintained
that his father was
innocent.
Mr Van Heerden has contended that
accused 2 and 3 acted under the influence of accused 1 because the
latter was accused 3’s father
and accused 2 regarded him as his
father. Ms Cronje says of accused 3:
“Hy
sal waarskynlik oorwegend toegee eerder as om konfrontasie te
ontlok.”
It may well
be that accused 1 influenced accused 2 and 3 to lie to protect him.
There is no direct evidence to that effect before
me. That evidence
should have emanated from the mouths of accused 2 and 3. Accused 3
could for example have said, if that was
the case, that his father
said he must accuse the youth of having broken into the vegetable
market, his father said he must repel
Jaco Botha with stones and his
father said he must not allow Inspector Schutte to arrest him. The
two accessories to the murder
could have said accused 1 drummed his
own version into their heads. They have not done so. Already on
the 1
st
February 2007 when they were convicted I suggested strongly in my
judgment that another attorney and counsel would serve their
interest better. They must now bear the consequences of the choices
they have made. The only influence imaginable that accused
1
exercised over them is inherent in the father/son relationship
alluded to. The influence was minimal.
The accused, aided by
their counsel, tried to pull a cheap stunt on the court and the
youthful Curtis Maritz. The latter said accused
2 was the tall one.
Curtis made this distinction from the same evening of the murder.
Mr Van Heerden asked the three accused
to stand up in the accused’s
dock. They appeared to be the same height. I asked them to step
out. Lo and behold, the soles
of accused 3’s shoes, as the record
shows, were markedly thicker than those of accused 2. Curtis also
referred to accused 3
as “Die Geel Kop” because of the colour of
his hair. Accused 2 was then raven-haired. The following day they
exchanged hair
colour. This typified their entire case. It is not
amusing.
The crime of accessory
to murder is a very serious offence. Society eschew the fact that
murderers must walk in their midst unpunished.
Both the
Correctional Services officer and the social workers of the
Department of Social Services have recommended that accused
2 and 3
be sentenced to Correctional Supervision in terms of
section
276(1)(i)
of the
Criminal Procedure Act, 51 of 1977
. Mr van Heerden
also urged me in that direction. State counsel was not strongly
averse to accused 3 being sentenced as per aforegoing
recommendation.
Mr Van Heerden has directed
attention to the case of
S
v Kleinhans
1994(1) SACR 195 (O)
.
In that case the accused was convicted by
Wright
J
of being an accessory
after the fact to murder. The accused pleaded guilty to the crime.
He admitted that he had been approached
by the murderer, his friend,
to assist the murderer to dispose of the body and discarded it in a
remote area. The accused was
21 years old and a first offender. He
also had a stable work record. He was sentenced to three years
correctional supervision
in terms of
section 276(1)(h)
of CPA. What
is noteworthy in the
Kleinhans
case is that the
deceased’s body was already in the boot when the accused became
involved. The accused also made a clean breast
of things.
I am not persuaded
that that case is more serious than the current case. In this case
the accessories saw the murder being committed,
they saw or were
part of the murder weapon being disposed of or concealed, they were
part of the conspiracy that Mr Echert give
perjured evidence by
introducing a walking stick that they knew fully well accused 1 did
not use for support that late afternoon,
they showed no remorse,
they accused an innocent Curtis Maritz as the murderer etc.
In
S
v Nooroodien en Andere
1998(2) SACR 510 (NC)
at
529h-j a case relied on by State Counsel,
Buys
J
writing for the full
bench (
Kriek JP
and V
an Der Walt J
concurring) stated:
“
Mev Birch het, op versoek van
die Hof, na 'n aantal beslissing verwys waar die beskuldigdes skuldig
bevind is as begunstigers tot
moord. Hulle vonnisse het gewissel
tussen agt jaar en 20 jaar gevangenisstraf. Vonnisse wat in ander
soortgelyke sake opgelê word
is nie van veel waarde nie, behalwe in
die mees algemene sin dat howe begunstiging in moordsake steeds as 'n
ernstige misdryf beskou
wat in 'n gepaste geval met 'n lang termyn
gevangenisstraf gestraf word. Dit is so omdat 'n gepaste vonnis in
elke saak bepaal word
met inagneming van sy eie unieke feite.”
The accused were
sentenced to eight years imprisonment each
In terms of
Section 257
of the
Criminal Procedure Act the
punishment of an accessory after the fact
shall not exceed that of the perpetrator of the initial crime. It
is trite that the
accessory after the fact is usually sentenced more
leniently than the perpetrator, for understandable reasons. In
S
v Phallo and Others
1999(2) SACR 558 (SCA)
at 569h – 560a (par 42) the Court sent out this clear message:
“
[42] I am of the view that a
sentence of eight years' imprisonment in the case of each of the
appellants is reasonable and fully justified
by the circumstances of
the case. In
S
v Van Dyk
1998 (2) SACR 363
(W)
,
Cameron J
stated at 381i-j:
'Die
regspleging in ons land is in ernstige gedrang. Openbare vertroue in
die opspoor en vervolging van misdadigers beleef 'n krisis,
met
skeptisisme wat om verstaanbare redes hoogty vier. Deur swaar
vonnisse op te lê moet die howe enersyds 'n boodskap aan voornemende
misdadigers binne die regs-administrasie uitstuur dat hul optrede nie
geduld sal word nie; en andersyds aan gewone landsburgers dat
die
regspleging sover doenlik beveilig word.'
With these remarks I
fully agree.”
Both accused 2 and 3 are first
offenders. If the activist role of accused 3 is measured against
the more withdrawn participation
of accused 2 and regard being had
to their age disparity (29 against 21, respectively) then these
factors just about cancel each
other out. There is therefore only
little room for differentiation in the sentences. The room being
accused 3’s relative immaturity
and his invidious position
vis-á-vis
his father.
Having regard to the
merits of the trial, the evidence adduced during the sentencing
phase, the argument of counsel on both sides
of the divide and my
aforegoing remarks, I am satisfied that accused 2 and 3 are not
prime candidates for correctional supervision
as contended for by
their counsel.
As far as accused 1 is
concerned all I need say at this final stage is that if he was
10(ten) years younger I would have sentenced
him to life
imprisonment without any hesitation.
The
accused are sentenced as follows:
Accused 1 (Joseph Le
Grange) is sentenced to 24 (twenty four) years imprisonment.
Accused 2 (Hendrik Van
der Westhuizen) is sentenced to 8 (eight) years imprisonment, two
years of which is suspended for 5 (five)
years on condition that he
is not convicted of an offence involving dishonesty and for which he
is sentenced without the option
of a fine; and which offence is
committed during the period of suspension.
Accused 3 (Pieter Le
Grange) is sentenced to 7 (seven) years imprisonment, two years of
which is suspended for 4 (four) years on
condition that he is not
convicted of an offence involving dishonesty and for which he is
sentenced without the option of a fine;
and which offence is
committed during the period of suspension.
______________________
F
D KGOMO
REGTER-PRESIDENT
NOORD-KAAPSE
AFDELING
On Behalf of the State:
Adv J J CLOETE
Instructed by:
Director
Public Prosecutions, Kimberley
On behalf of all the
Accused: Adv F VAN HEERDEN
Instructed by: Herman
Van Heerden Ing.