S v Pono and Others (K/S 71/06) [2007] ZANCHC 51 (6 September 2007)

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[2007] ZANCHC 51
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S v Pono and Others (K/S 71/06) [2007] ZANCHC 51 (6 September 2007)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case No.: K/S 71/06
Heard:
Delivered: 06/09/2007
THE
STATE
versus
RIAAN
PONO ACCUSED 1
DANNYBOY
ROBERTS ACCUSED 2
EDWIN
KRUGER ACCUSED 3
JUDGMENT
MOKGOHLOA
AJ:
The
three accused, Mr Riaan Pono a male aged 31 years, Mr Dannyboy
Roberts, a male aged 22 years and Edwin Wouter Kruger a male
aged 30
years, are arraigned on one charge of murder. The state accuses
them of having murdered a male named Paul John Long at
Rietvale,
Northern Cape on 17 June 2006.
Accused
No.1 Mr Pono is represented by Ms. B Segone, Accused No.2 Mr Roberts
and Accused No.3 Mr Kruger are both represented by
Mr Rasethuntsa
and later by Mr Cloete. All legal representatives are from the
Legal Aid Centre of Kimberley. The State is represented
by Ms. van
Heerden of the office of the Director of Public Prosecution.
The
State alleges that the three accused murdered the deceased by
assaulting him with open hands and clenched fists. It also alleges
that the accused further assaulted the deceased by hitting him with
planks and a garden spade while the deceased’s hands were
tied on
his back.
The
three accused pleaded not guilty to the charge. Accused No.1
through his attorney exercised his rights to remain silent. Accused
No.2 and No.3 denied all allegations against them and put the State
to prove thereof.
The
statement by Inspector McAnda of the Criminal Record Centre in
Kimberley was handed in by consent between the parties. This
statement
enclosed photos of the scene of the incident. Exhibit
‘A’. The DNA analysis was conducted by Inspector Ulrich Koenze
of the
SAPS Forensic Science Laboratory. The deceased’s blood
samples were matched to the blood stains found on accused No.1’s
shirt
and Accused No.2’s trousers. Inspector Koenze’s findings
were also handed in as Exhibit ‘C’ by consent.
During
the trial all three accuseds made formal written admissions in terms
of
Section 220
of the
Criminal Procedure Act 51 of 1977
. These
admissions were handed in as Exhibits ‘D’, ‘E’ and ‘F’
respectively. These admissions can be summarised as
follows:
6.1. The
three accused admit the identity of the deceased as Paul John Long.
6.2. They
admit that the deceased died on the 17 June 2006 in the veld behind
the house No. 46 Aanblom Street, Rietvale, Kimberley.
6.3. They
admitted that the deceased did not suffer further injuries from the
scene at 46 Aanblom Street where he was found by Frans
Louw on 17
June 2006 until the post mortem was conducted on his body by Dr D
Lourens on 19 June 2006.
6.4. They
admitted the post mortem report by Dr Lourens and the correctness of
its content. They further admit that the post mortem
report refers
to the deceased, Paul John Long.
6.5. Accused
No.1 and No.2 admit contents of Inspector Koenze’s findings and
that the shirt referred to in that report belongs to
Accused No.1 and
the trouser belongs to No.2.
EVIDENCE
OF THE ACCUSED
7. All
three accused testified. Their evidence was that on 17 June 2006 in
the evening, they were at accused No1’s house no 46
Aanblom Street,
Rietvale. They were in a company of one Selina Louw, Accused No.1’s
girlfriend and live-in-lover. They were seated
in the bedroom
drinking alcohol and listening to music. A certain person later
identified as the deceased, came knocking at the
door. Accused No.1
went to open the door. Accused No.1 and the deceased stayed in the
sitting room arguing over money that Accused
No.1 owed the deceased.
He tried to intervene and then he left the house (i.e. Accused 3).
Accused 2 also went to intervene but
failed. He also left.
8. According
to Accused No.1, he was then left with the deceased and Selina Louw
who was still in the bedroom. He then went into
the bedroom and the
deceased followed him. He asked the deceased to leave but the
deceased refused. They then started to push each
other. Then Selina
stood up and took a plank that was in the bedroom and hit the
deceased once on the head therewith. The deceased
fell and Selina
took a rope and tied the deceased’s hand to his back. He tried to
stop her. Selina told him she has to do that
otherwise the deceased
will harm him. The deceased tried to fight back. He never assaulted
the deceased in any way, he never even
helped Selina tie the
deceaseds hands.
9. Accused
No.1 carried deceased from the bedroom to the sitting room. At that
stage the deceased was dizzy. Accused No.2 then came
and No.1 asked
him to help carry the deceased outside to get fresh air. They
carried the deceased outside and he left the deceased
with Accused
No2 there. He did not know what happened thereafter. He observed
that the deceased was bleeding but did not see the
wound.
10. According
to Accused No.2, when he returned to Accused No 1’s house, he found
the deceased lying on the floor in the sitting
room against the wall,
his hands tied to his back, his face and clothes full of blood. The
deceased was dizzy he could not speak.
Accused No.1 asked him to
carry the deceased outside so that he can get fresh air. They
carried the deceased outside the house
to the veld. He then relieved
himself as he turned around he saw Accused No.1 having a shiny object
in his hand. Accused No.1
bent towards the deceased head and moved
his hands as if wiping something off the deceased head. He does not
know whether Accused
No1 stabbed the deceased or not. They left the
decdeased in the veld and went back to to Accused No.1’s house.
They left the deceased
there and went back to Accused No.1 house.
They found Selina cleaning the floors in the house and the walls in
the bedroom.
EVIDENCE
OF THE STATE
11. Selina
Louw testified. She confirmed they were at the Accused No1’s house
with Accused No.2 and No.3 when the deceased came.
The deceased
argued with the Accused No.1. They were in the bedroom and she was
sitted on the mattress bed. The three accused
then stated to assault
the deceased with open hands. Accused No.3 then took a garden spade
which was in the room and hit the deceased
on his head. The deceased
fell on the floor. They all three joined together to assault the
deceased with booted feet, clenched
fists and planks. The other two
accuseds also hit the deceased with that garden spade. Accused No.1
and No.2 helped each other to
tie the deceaseds hands to the back.
They also tied the legs together. They continued to assault him
while he was lying on the
floor. The 3 Accused then stopped the
assault and untied the deceased legs. According to her, the deceased
was still alive at that
stage but was bleeding profusely.
12. Accused
No.3 then fell asleep and Accused 1 and Accused 2 carried the
deceased to the veld. Accused No.1 and No.2 told her to
clear the
blood that was on the floor and burn the planks and the clothes that
were blood stained. She did that Accused No.1 and
No.2 returned from
the veld and Accused No.3 left. After sometime Accused 2 left too.
Selina confirmed under cross-examination
that she also assaulted the
deceased with a plank on his foot whilst the deceased was lying in
the floor.
14. Mr
FRANS Louw also testified (no relation to Selina). His testimony was
that on 17 June 2006 in the morning he was on his way
to visit his in
laws. Along the way he met all three accuseds. He observed blood on
the hands of both Accused No.1 and No.2 but
did not enquire further.
He talked to accused 2 about the money Accused No.2 owed him. They
passed each other and he went back
to his in-laws. He had his
fishing rods with him and he wanted to shoot at the bird. The bird
flew away he went after it until
at a certain tree in the veld. He
then observed the body of the deceased lying on the ground tied
around in a rope. He went and
summoned the police.
15. Inspector
M.W. Legoshe confirmed that he attended the scene of the incident in
the veld. He also observed blood on the ground
and he followed the
blood stains that led him to Accused No.1’s house. He went into
the house and found blood stains on the floors
and walls and planks
which were also blood stained. Selina Louw was also there and she
showed him where she burnt the bloodied clothes.
He also retrieved a
blood stained garden spade Exhibit ‘1’ at house No. 40 Aanblom
Street.
MEDICAL
EVIDENCE
16. The significant
finding that Dr Denise Lourens recorded in the post- mortem
examination report, Exhibit ‘B’ are the following:
“
4. Tydens
die lykskouing het ek my bevindings aangeteken en vasgestel dat die
vernaamste lykskouingsbevindings in verband met hierdie
liggaam
volgende was:
(1) Volwasse man.
(2) Kneusings,
skaafwonde en skeure van die liggaam.
(3) Bloedings
van die brein.
(4) Frakture
van die neusbrug en hyoid been.
(5) Inhalasie
van bloed.
5. dat
die
oorsaak
van die dood
die volgende was:
Stomp trauma van die
kop en nek.”
17. Dr Lourens testified
that the deceased’s body had almost 19 blows. These were abrasions
and bruises and could have been caused
by being kicked with booted
feet and hit by planks. The serious injuries according to the Dr is
the one on the head and neck which
may have been caused by being hit
by a hard object which may include a plank or a handle of a garden
spade. The wound on the neck
may have been caused by being hit with
a plank that has nails or a garden spade or a sharp point of the
brick. According to her
a combination of both injuries on the head
and neck is the cause of death. The deceased also was bleeding
inside from nose and throat.
EVALUATION
OF SELINA LOUW’S EVIDENCE
18. Its
trite that the onus rest on the State to prove its case beyond
reasonable doubt. No onus is placed on the accused. Whether
I
disbelieve the evidence of the accused is not the test. I need not
even reject the State’s case in order to acquit them. I
am however
bound to acquit them if there exist a reasonable possibility that
their evidence may be true. (
See
S v Kubeka
1982 (1) SA 534
(W) at 577 D – H)
19. It
has been argued by both legal representatives that Selina should be
regarded as a credible witness. This argument was based
on the fact
that (i) she is a single witness and (ii) she is a
section 204
witness who took part in the assault of the deceased.
(i)
Section
204
Witness
It is
argued that Selina lied to this court and was not open to court as
she feared to incriminate herself. However she was warned
in terms
of
Section 204
that she is obliged to answer questions
notwithstanding that her answers may incriminate herself.
(ii)
Single
Witness
Section
208
of the CPA 51 of 1977
provides that an accused person may not be convicted of any offence
on the single evidence of any competent witness. The courts approach
to this section was summarised in a dictum of De Villiers JP.
In
R
v Mokoena
1932 OPD 79
at 80
as follows:
“
Now
the uncorroborated evidence of a single competent and credible
witness is no doubt declared to be sufficient for a conviction
by
[the section], but in my opinion that section should only be relied
on where evidence of a single witness is clear and satisfactory
in
every material respect. Thus the section ought not to be invoked
where, for instance, the witness has an interest or a bias adverse
to
the accused, where he had made a previous inconsistent statement,
where he contradicts himself in the witness box, where he has
been
found guilty of an offence involving dishonesty, where he has not had
proper opportunities for observation, etc.”
“
In
S v Sauls
1981 (3) SA 172
(A) at 180 D – F.
“
This
section no longer refers to “the single evidence of any competent
and credible
witness”;
it provides merely that “an accused may be convicted on the single
evidence of any competent witness”. The absence
of the word
“credible” is of no significance; the single witness must be
credible, but there are, as Wigmore points out, “indefinite
degrees
in this character we call credibility”. (Wigmore on
Evidence
vol III para 2034 at 262
.)
There is no rule of thumb test or formula to apply when it comes to
a consideration of the credibility of the single witness (see
remarks
of Rumpff JA in
S
v Webber
1971 (3)
SA
754
(A) at 758
.
The trial Judge will weigh his evidence, will consider its merits
and demerits and, having done so, will decide whether its trustworthy
and whether, despite the fact that there are shortcoming or defects
or contradictions in the testimony, he is satisfied that the
truth
has been told.”
In
R
v Mpompotshe
and
Another
1958 (4) SA 471
(A) 479 E – F
Schreiner JA stated as follows:
“
The
cautionary rule does not require that the triers of fact should be
told, or should warn themselves, that there must always be
corroboration of the accomplice. As pointed out in
Rex
v Ncanana
,
1948
(4) S.A. 399
(A.D.) at p.405
,
there may be a sufficient guarantee if certain other features are
present. But if those features are not present, if for instance
the
accused has given evidence and has not been proved to have testified
falsely, and if it cannot be said that the accomplice is
beyond all
question a satisfactory and convincing witness while the accused is
the opposite, then corroboration is required.”
The
evidence of Selina as regards how the deceased was assaulted is
corroborated by the findings of Dr Lourens as mentioned in para
17
supra. She confirmed that she did hit the deceased with a plank on
his foot. She washed the blood stains on the floors and walls.
This
corroborated by Accused No.2. She burnt the blood stained clothes
and Inspector Legoshi confirmed that Selina showed her the
burnt
clothes. She was the only person sober on that night this is
confirmed by all three accuseds. She is Accused No.1’s girlfriend
and there will be less possibility of her fabricating her story.
There was no grudges between Selina and the accuseds.
20. The
evidence of Accused 1 on the other hand contradicts what his previous
attorney put to Selina under cross examination. He
also contradicts
the evidence of Accused 2. Accused 2 through his legal
representative put to Selina that Accused No.1 stabbed the
deceased
with a shiny object twice on the neck. This happened when they left
the deceaseds at the veld.
F.E.
MOKGOHLOA
ACTING
JUDGE
HIGH COURT
NORHTERN
CAPE DIVISION
On
behalf of the State : Advocate A. Van Heerden
Instructed
by : Director of Public Prosecution Kimberley
On
behalf of the Accused 1 Ms. B. Segone
Instructed
by : Legal Aid Centre Kimberley
On
behalf of the Accused 2 & 3 : Advocate J. Cloete
Instructed
by : Legal Aid Centre Kimberley