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[2007] ZAWCHC 94
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Philander v S (A250/2005) [2007] ZAWCHC 94 (7 December 2007)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL
DIVISION)
CASE
NO
:
A250/2005
DATE
:
7
DECEMBER 2007
In
the matter between:
JOHN
PHILANDER
APPELLANT
versus
THE
STATE
RESPONDENT
JUDGMENT
(Appeal
against Sentence and Convictions)
SALDANHA.
AJ
The
appellant, Mr John Philander, was convicted in the Regional Court in
Cape Town on the 3
rd
of April 2003 for murder and defeating the ends of justice. He was
sentenced to 20 years imprisonment on the first count and five
years
on the second. The sentence on the second count was ordered to run
concurrently with that of the first. The appellant was
charged
together with Mr Morne Williams, who was acquitted on both counts.
The appellant now appeals against the conviction and
sentence.
The
charge arises out of an incident on the 8th of May 2001 in which the
deceased, Mr Nicholas Boltney, was assaulted and strangled
near the
Maccassar Beach, Mitchells Plain and was subsequently buried in a
shalfow grave at the Maitland Cemetery in an attempt
to conceal the
body. It was not established at the trial whether the deceased was in
fact dead at the time of the burial. The appellant
was legally
represented at his trial, he pleaded not guilty to the charges and
tendered no plea explanation. The State called three
witnesses; Ms
Patricia Loggenberg, an accomplice who had been warned in terms of
Section 204
of the
Criminal Procedure Act, No 51 of 1977
; Dr Yolande
van der Heyde, a medical doctor who conducted the post-mortem
examination on the body, and a police officer, Mr Neville
du Toit.
The
accused testified in his own defence, and also called a witness, Mr
Andwell Thomas. Mr Williams, the second accused, also testified
in
his own defence.
On
appeal the appellant submitted that the magistrate had misdirected
himself in relying on the evidence of Ms Loggenberg and that
of Mr
Williams to the extent that he corroborated her and for finding that
his version was not reasonably, possibly true.
At
the outset it is preferable to first deal with the objective evidence
of Or van der Heyde. She had initially not been able to
determine the
direct cause of death from the post-mortem report examination. She
subsequently had access to the police docket and
as a result thereof
drew up a further report. Some of the chief findings of the
post-mortem were that a sock was found in the mouth
of the deceased
and sand particles were present in the upper and lower airways as
well as in the stomach. This suggested aspiration
and swallowing. The
jawbone of the deceased was fractured on the right side and bfack
shoe laces had been found near the head of
the deceased.
In
a second report, Dr van der Heyde submitted that the fracture of the
jawbone was indicative of a blunt force trauma having been
applied to
the face. After considering alt the information in the docket she
described the cause of death as "in keeping with
ligature,
(strangulation), and the consequences thereof, however smothering due
to being buried alive and due to his having a sock
in his mouth
cannot be excluded". She also submitted that the death could
have been as a result of a combination of all of
these factors. The
appellant and Mr Williams admitted the contents of the reports and
the various photographs taken of the body,
which depicted the extent
of its decomposition at the time at which the post-mortem was
conducted.
Ms
Loggenberg, a sex worker, testified that she and a colleague, Miss
Ronel du Plessis, was in the company of the appellant, his
co-accused
Mr Williams, and the deceased on the day of the incident. The
deceased had been under the influence of alcohol and had
driven them
around to various places, including shebeens in Delft and Mitchells
Plain. At one of the stops the deceased got out
of the vehicle alone
and she noticed that he had handed over hts watch, wallet and ring to
another person. In the car she overheard
the appellant telling Ms du
Plessis to "play the game" as there was an amount of about
R2 000 involved. She later understood
this to mean that the appellant
had planned to rob the deceased of his money.
They
subsequently landed up at a deserted part of the Macassar beach near
Mitchells Plain. There the deceased was accompanied by
Ms du Plessis
to nearby bushes where they had sexual intercourse. She had heard the
appellant tell Ms du Ptessis to ensure that
the deceased was
completely naked during the intercourse. The appellant thereafter
instructed her- Ms Loggenberg - to use the wheel
spanner of the motor
vehicle to hit the deceased hard over the head whilst he was having
sex with Ms du Plessis. He threatened
to kill her if she refused. She
did so, but out of fear, and hit the deceased lightly over the head.
The deceased got up and confronted
the appellant and Mr Williams
about the assault on him. The appellant immediately said that they
should kill him and took the
wheel spanner and beat the deceased over
the head and face with it. The deceased feh and the appellant ordered
Mr Williams to remove
the laces from the deceased's shoes to strangle
him with. Ms du Plessis picked up a rock the size of a pumpkin which
she threw
onto the head of the deceased. Mr Williams also beat the
deceased on the head with a rock and both he and Ms du Plessis
strangled
the deceased with the shoe laces. The appellant had aiso
placed a sock into the mouth of the deceased. During the
strangulation
the deceased bled through his mouth and ears and gave a
sudden jerk whereafter he remained still. The appellant then ordered
Mr
Williams to bring the car closer and ordered him and Ms du Ptessis
to put the deceased into the boot of the vehicle.
The
appellant instructed Mr Williams to drive to Elsies River where the
appellant told friends of his in gangster language that
he had killed
the deceased. He thereafter got hold of a spade from one of the
houses in the area and instructed Mr Williams to
drive to the
Maitland cemetery. There the appellant and Mr Williams dug a shallow
grave in which they buried the deceased. They
thereafter went back to
Elsies River where they stayed in a flat for approximately a week.
She further testified that she was too
scared to leave the flat
because Du Plessis had warned her that the appellant would track her
down and kill her. She had also heard
that the appellant and Mr
Williams had sold the deceased's motor vehicle and she noticed that
the appellant and Ms du Plessis had
struck up an intimate
relationship. She was able to escape after a week and immediately
went to Kuilsriver where she informed a
woman who knew the deceased's
wife about what had happened to the deceased. She subsequently
accompanied the deceased's wife to
the Mitchells Plain police station
where she reported the incident.
The
appellant confirmed that they were driven around by the deceased on
the morning of the incident in Delft and Mitchells Pfain.
He however
denied that he said anything to Du Plessis about being part of a
"game", and robbing the deceased before they
landed up at
the Macassar beach. There by arrangement he had sex with Ms
Loggenberg while the deceased had sex with Ms du Plessis.
The
deceased and Ms du Plessis had taken their time about it and he had
become impatient. He and Mr Williams eventually left the
beach and
walked to a nearby bridge. The deceased and the two women
subsequently drove past them. He denied Ms Loggenberg's version
about
the assault and strangulation of the deceased and the subsequent
burial in Maitland. He claimed that he and Mr Williams had
eventually
landed up at a railway station where they slept. The next morning
they went to the house of the deceased where they
asked his wife
where the deceased was. Her response was that she was not concerned
about his whereabouts.
Mr
Andwell Thomas, who had been a co-prisoner of the appellant at some
stage, testified that he had visited a shebeen one morning
which was
adjacent to the deceased's house. There he heard the deceased's wife
shouting at the deceased and threaten htm that she
would get people
to kifl him.
The
appellant's co-accused, Mr Williams, had given several versions about
the incident and his involvement therein. Eventually when
confronted
by the prosecutor with a statement which he had made to the police,
he admitted that he had removed the shoe laces of
the deceased on the
instruction of the appellant and together with him strangled the
deceased. He had also pulled the car nearer
to where the deceased had
been assaulted and he and the appellant placed the deceased into the
boot of the vehicle. He subsequently
drove to Elsies River, on the
directions of the appellant, where, after obtaining a spade drove to
the Maitland cemetery. He together
with the appellant dug a grave in
which the deceased was buried. They thereafter stayed in Elsies River
for approximately two days
and he and the appellant had gotten rid of
the deceased's motor vehicle. When he and the appellant returned to
Kuilsriver they
gave the deceased's wife a concocted story about the
appellant having driven away in the crossfire of a gang fight in
Mitchells
Plain. He subsequently admitted to the deceased's wife what
had really happened to him (the deceased).
The
magistrate in his judgment made a thorough evaluation of the evidence
of Ms Loggenberg, Mr Williams and that of the appellant.
He observed
that Ms Loggenberg was a very tense witness, that she had appeared
flustered and came across as being fearful. She
had even become
nauseous when describing the assault on the deceased and had to leave
the court, She made an overall positive impression
on him and he
found her to be a credible witness. He was also mindful though that
she had to be dealt with as an accomplice who
had been warned in
terms of
Section 204
of the
Criminal Procedure Act, and
as she was a
single witness, the cautionary rules of evidence also had to be
applied. The Magistrate accepted the evidence of Dr
van der Heyde as
he found no reason to doubt her findings. The evidence of the witness
du Toit was of little relevance and not
dealt with.
The
appellant had failed to impress the magistrate as a witness. He had
created a negative impression and tried to bolster his own
credibility at the expense of the other witnesses. He was found to
have dismally failed in doing so.
Having
taken all the evidence into account the Magistrate dismissed the
appellant's version as improbable, and found him to be a
dishonest
witness. Although the magistrate was sceptical of the credibility of
Mr Thomas, his evidence was nevertheless supported
by that of the
appellant and Mr Williams, with regard to the threats made by the
wife of the deceased on the morning of the incident.
He however did
not find these threats to be of any serious consequence in the
matter.
The
appellant's co-accused, Mr Williams, who was relatively young
appeared to have had a limited education. He was found by the
Magistrate to be an outright liar. He was quite happy to change his
version as it suited htm. As a result of his conflicting versions,
the prosecutor literally had to force admissions out of him. He
however maintained that he acted out of fear of the appellant,
which
could have played a role in his testimony. He had also testified that
he had been threatened by the appellant in prison not
to turn against
him. The magistrate correctly observed that the evidence tendered by
the State was scant. No evidence was led with
regard to the motor
vehicle or what had happened to it, or the evidence of the deceased's
wife who could possibly have thrown some
light on the version of Ms
Lochenberg. There was no evidence led with regard to the arrest of
both the appellant and his co-accused
and no evidence was led with
regard to the actual pointing out of the grave site where the
deceased's body was found.
He
therefore approached the matter on the basis that he would have to
first determine whether the evidence before the court could
be relied
upon, particularly in the light of the application of the cautionary
rules to the evidence of both Ms Loggenberg and
Mr Williams. The
version of the appellant would also have to be considered to
determine whether it was reasonably possibly true.
The magistrate
correctly pointed out the approach with regard to a single witness is
that the evidence would have to be satisfactory
in all material
respects or be corroborated by other evidence. He pointed out that
the most significant criticisms against the
evidence of Ms Loggenberg
were in two respects; firstly, with regard to her evidence in chief,
in which she claimed that she was
scared of the appellant, but had
made no mention that she had heard that he had a firearm until it
came out in cross-examination.
Secondly, her version with regard to
the assault on the deceased with the rock. She initially stated that
both Ms du Plessis and
Mr Williams had assaulted the deceased
with/rocks/ Later in cross-examination she claimed that Ms du Plessis
had merely thrown
the rock aside and did not hit the deceased with
it. On this contradiction she was confronted with her statement to
the police
in which she had said that Ms du Plessis had in fact hit
the deceased with the rock. She also contradicted herself at times
with
regard to whether Williams was a willing partner to the
appellant in the incident. He regarded the contradiction with regard
to
the rock as the most significant. It could not simply have been
a mistake on her part, and he was of the view that he could therefore
not find that her evidence was satisfactory in all material respects.
In this regard her evidence would have had to be corroborated
if it
was to be relied upon. He found that her version was supported in
various respects, in particular that they had been driven
around by
the deceased on the day of the incident, the findings of the
post-mortem with regard to the broken jawbone of the deceased,
which
was consistent with her version of the assault on the deceased, and
the shoelaces that were found near the deceased's body.
The finding
of the sock in the mouth of the deceased also supported her version,
and so did the fact that the deceaseds body was
found in a grave in
Maitland.
Despite
the magistrate having found that Mr Williams was not a credible
witness his version with regard to the instruction by the
deceased to
remove the shoelaces and the strangulation of the deceased supported
that of Ms Loggenberg. Further his evidence with
regard to the
instruction by the appellant to bring the car nearer at the scene,
the placing of the deceased into the boot, the
visit to the gangsters
in Elsies River, and the subsequent burial of the deceased in
Maitland all supported Ms Loggenberg's version.
Mr
Williams also confirmed that they had stayed in a flat in Elsies
River after the incident, although his version was that it was
only
for two days, rather than the week referred to by Ms Loggenberg. Mr
Williams also testified that Miss Lochenberg appeared
to have been
acting under duress and in fear of the appellant and that he himself
had also been scared of the appellant.
The
magistrate also considered the improbabilities of the appellant's
version, in which he claimed that both he and Mr Williams
were not
present during the assault and the burial of the deceased. Mr
William's version that he had pointed out the burial place
to the
police was not challenged and put paid to the claim by the appellant
that he and Mr Williams had left the deceased and the
two women at
the Maccassar beach. The magistrate found that there was sufficient
corroboration to accept the evidence of Ms Loggenberg,
despite the
apparent contradictions in her evidence.
I
am satisfied that the approach adopted by the magistrate accords with
that set out by
Schreiner,
JA
in the matter of
R
v Ncanana
1948(4) SA 399 at 405 - 406;
"What
is required is that the trier of fact should warn himself or if the
trier Is a jury that it should be warned of the special
danger of
convicting on the evidence of an accomplice; for an accomplice is not
rarely a witness with a possible motive to tell
lies about an
innocent accused, but is such a witness peculiarly equipped by the
reason of its knowledge of the crime to convince
the unwary that his
lies are the truth."
In
this regard see also the dicta of
Oe
Villiers. JP
in R
v
Mkwena
1932
[OPD] 79 at 80;
"The
uncorroborated evidence of a single witness is in no doubt declared
to be sufficient for conviction by
Section 284
of the
Criminal
Procedure Act, but
in my opinion that section should only be relied
upon where the evidence of a single witness Is ciear and satisfactory
and in every
material respect."
In
S
v Hlapezula and Others
1965(4) SA 349, [AD] at 440
Holmes,
JA
remarked as follows:
'Satisfaction
of the cautionary rule does not necessarily warrant a conviction, for
the ultimate requirement is proof beyond
the reasonable doubt
and this depends on an appraisal of all the evidence and the degree
of the safeguards aforementioned.
1
'
It
is clear from the detailed analysis by the Magistrate of the evidence
of the witness, Ms Loggenberg, and that of Mr Williams,
that he
approached their evidence with the necessary caution and applied the
appropriate safeguards in dealing with it. I am also
mindful that a
Court of Appeal will not lightly interfere with the findings of
credibility and the observations of a trial court.
In this regard see
R
v Dhlumayo and Another
1948(2) SA 677, [AD] In which
Davis,
Acting JA
commented as follows;
"An
Appellate Court should not seek anxiously to discover reasons adverse
to the conclusions of the trial judge. No judgment
can ever be
perfect and all embracing, and it does not necessarily follow that
because something has not been mentioned therefore
it has not been
considered."
In
the circumstances I am satisfied that the Magistrate had correctly
accepted the evidence of Ms Loggenberg and to the extent to
which it
had been supported by that of Mr Williams. He d also correctly found
that the version of the appellant was not reasonably
possibly true.
In the result the
APPEAL
AGAINST THE CONVICTION IS TO BE DISMISSED. AD SENTENCE
A
Court of Appeal will only interfere with the sentence of a lower
court if it finds that;
"the
reasoning of the trial court is vitiated by
misdirection or where
the sentence imposed can
be said to be startlingly inappropriate
or to
induce a sense of shock "
S
v Kqosimore
1999(2) SACR 238, (SCA) at 241 E-G.
The
appellant testified in mitigation of sentence and submitted that the
Court should take into account the alleged sexuaf abuse
by his own
father on him at a tender age. Both the appellant's mother and his
sister also testified in mitigation of sentence as
well as an
erstwhile fellow prisoner of the appellant, Mr C J Pharow. The
magistrate had also taken into account that the appellant
had at
least 17 previous convictions for various offences ranging from
theft, housebreaking, escaping from custody, possession
of arms,
malicious damage to property and possession of drugs which had taken
place over a period in excess of 16 years. Some of
these offences it
appears were committed by the appellant while in custody. The
magistrate correctty found that the appellant
had been convicted of a
serious offence. In fact from the evidence before the Court, and in
particular the photographs this appears
to be a gruesome killing,
more so as the deceased might still have been alive when buried. The
abuse by the appellant of the witnesses,
Ms Loggenberg, Ms du Plessis
and his co-accused in the commission of this offence was also
regarded as an aggravating factor.
The
magistrate had taken into account the personal circumstances of the
appellant, and that he had been in custody for a lengthy
period
awaiting trial. So too did he consider the evidence of the
appellant's family and friend. In order to temper the cumulative
effect of the sentences he ordered that the sentence on the
conviction of the defeating of the ends of justice should run
concurrently
with that of the murder.
In
the circumstances, having regard to the proper considerations to be
taken into account with regard to sentence, and the purpose
of
sentence I am satisfied that the magistrate had not misdirected
himself. In the result the
APPEAL
AGAINST SENTENCE ALSO STANDS TO BE DISMISSED
.
I
propose to make the following order;
1.
The
APPEAL AGAINST BOTH THE CONVICTION AND SENTENCE IS DISMISSED.
2. The
conviction and the sentence is upheld.
V
C SALDANHA, AJ
Hlophe,
JP:
I
agree. It is so ordered.
J
M HLOPHE, JP