S v Robertson and Others (48/2005) [2006] ZANCHC 25 (24 April 2006)

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[2006] ZANCHC 25
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S v Robertson and Others (48/2005) [2006] ZANCHC 25 (24 April 2006)

Reportable:
YES / NO
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IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
Case
Nr: 48/2005
Delivered:
24/04/2006
In
the matter:
THE
STATE
versus
GEORGE
ROBERTSON 1
st
Accused
RICHARD
THUSI 2
nd
Accused
SECOND
ACCUSED
GREOGORY
OLIPHANT 3
rd
Accused
JUDGMENT
KGOMO
JP:
The
three accused are charged with one count of murder and another of
Robbery with aggravating circumstances as contemplated by
Section 1
of the
Criminal Procedure Act 51 of 1977
. They all pleaded not
guilty to both counts. Accused 1 was originally represented by Mr J
Cloete of the Legal Aid Board whilst
accused 2 and 3 were
represented by Ms B Segone also of the Legal Aid Board.
Whilst
represented as aforesaid accused 1’s basis of defence was that on
the 22
nd
July 2004 (the night of the murder and robbery) he was in the
company of accused 3 at Stella’s Shebeen at a place called Die
Erwe around Roodepan, Kimberley, from about 17h00 to until just
before 20h00. The two then went to one Moira’s home to look
for
her husband called Oupa. They left Moira’s place before 21h00 and
went to CS Tavern which is also at Roodepan. They drank
liquor at
the latter place until about 24h00, when they went their respective
ways.
Through
Ms Segone accused 2 exercised his constitutional right to remain
silent and not to disclose the basis of his defence. Ms
Segone
however produced this plea-explanation on behalf of accused 3:
Accused 3 visited accused 1 at the latter’s parental home
at
Midlands, a farm outside Kimberley. At about 16h00 on the day in
question the two of them went to Stella’s Shebeen aforesaid
where
they consumed liquor together until about 19h00, when accused 3 left
accused 1 at Stella’s Shebeen to have a bath. After
19h00 but
before 20h00 accused 1 collected accused 3 at the latter’s
parental home. The two of them left to another shebeen
(later
identified as Gordon’s Shebeen). Only accused 3 entered Gordon’s
Shebeen as accused 1 told accused 3 that he wanted
to see someone
nearby (it later turned out to be Mr Oupa Donis at Ms Moira
McGulwa’s home). Accused 1 later joined accused 3
at Gordon’s
Shebeen whereat they drank liquor until about 24h00, when they left
and parted company midway between their respective
homes.
The
official photographer, Inspector McAnda, testified and was not
cross-examined. The second state witness, Mr Gregory Krull,
was in
midstream with his evidence when accused 1 terminated the mandate of
his counsel, Mr Cloete. The reasons are immaterial.
Mr Krull’s
cross-examination had then not even started. The case was postponed
for a substitute counsel. Mr Jooste took over
from Mr Cloete when
the case next resumed.
On
the latter date accused 3 terminated the mandate of Ms Segone. He
said that she had represented him competently but he nevertheless
required a different counsel. In came Mr Theo Fourie for accused 2
and Mr Kock for accused 3. Both counsel were satisfied with
the
proceedings up to that stage and had no representations to make.
Adv
J De Nysschen, an experienced state counsel, commenced the trial on
behalf of the state although he had shortly before the trial
started
been transferred to the Free State. Due to his work commitments De
Nysschen became unavailable and a junior and relatively
inexperienced state counsel replaced him. The new state counsel
without being uncharitable to him, was out of his depths and was
unable to master certain procedures and legal concepts and
principles. Mr Theo Fourie, whom I am justified in naming because

of his considerable years of experience (and came out of retirement
to join the Legal Aid Board) appeared to have no grasp how to
deal
with the issue of an alibi when it came to putting his client’s
version to the relevant state witnesses in order to lay
a foundation
for the forthcoming testimony of his client.
After
accused 2 had testified I summoned counsel to my chambers and
requested the presence of the Director of Public Prosecutions
(his
deputy attended as the DPP was out of town) and the attendance of
the Director of the Legal Aid Board. To avoid controversy
or any
misunderstanding I presented the following written note to them:

g
1. It
is in the interests of Justice that I am not prepared to continue
with the case of
S
v George Robertson & 2 Others
under the current circumstances. I therefore request the DPP to
re-appoint or re-assign Adv J de Nysschen to the case failing which
to appoint Adv Hannes Cloete.
2. I request the
Director of the LAB to assign his most senior counsel (attorneys
included) to look into accused 2 (Mr Richard Thusi’s)
case. I am
concerned that he may not be getting competent legal representation.
These
newly appointed counsel will see for themselves what problems there
are. It will be improper to discuss the merits of the
case in my
chambers. What I can say is that the LAB counsel must first read
the evidence of accused 2, Mr Richard Thusi, and the
exchanges
between the Court and Adv T Fourie before reading the entire
record.”
It
suffices to mention that the Director of Public Prosecution
re-instated Adv De Nysschen (who then led the junior state counsel)
and the director of the Legal Aid Board assisted Mr Theo Fourie with
the consent of accused 2 (Mr R Thusi). Accused 2 also declared
himself satisfied with the competency of Mr Fourie to continue
representing him. The reason for my expressed concern with the
performance of the said counsel will become apparent in the course
of this judgment.
Before
I discuss the evidence of the state witnesses I prefere to deal with
the trial-within-a –trial leading to the pointings-out
made by
accused 1 which event was accompanied by certain utterances:
utterances which amounted to a confession. The notes made
by police
officer, Senior Supt Dirk Jacobus De Waal, were confirmed before
Magistrate Ms K Padayachee. Mr Jooste’s objection
to the
admission of the pointings-out-cum-confession is that accused 1 was
unduly influenced by the investigating officer Capt
Rudolph J
Louwrens in that he promised to release accused 1’s mother, who
was arrested on the same charges, if he co-operated
fully with the
investigations. It was specifically recorded that neither Capt
Louwrens nor Supt De Waal or any police officer
dictated to accused
1 what to point out or say. His counsel stated that accused 1
fabricated the pointings-out or the annotations
which accompanied
them. It was intimidated that nothing therein was the truth. It
was further stated that accused 1 was not threatened
or assaulted or
otherwise forced to point out certain things. Mr Jooste also stated
that the rights of accused 1 were not explained
to him before he
embarked on pointings-out trip.
At
the end of the trial-within-a-trial I admitted into evidence the
testimony pertaining to the pointings-out and Supt De Waal’s
notes
which were duly confirmed by Magistrate Padayachee as having been
made freely and voluntarily and that there was no undue
influence
and reserved my reasons, which reasons now follow.
Accused
1 lied in the trial-within-a-trial when he said his rights were not
explained to him. The intimation was made that had
he been fully
aware of his rights he would not have inculpated himself respecting
to the pointings-out-cum-confession. I accept
Capt Louwrens’
evidence that he explained accused 1’s rights fully and properly
to him. Capt Louwrens and accused 1 are for
instance
ad
idem
that the captain
left his contact card with accused 1 overnight in the event that
accused 1 needed to discus the case with him.
The two are also
agreed that it was accused 1 who summoned Louwrens and offered his
full co-operation in the investigation. This
is not the conduct of
a police officer who is bent on abridging an accused’s rights or
the conduct of an accused who was unduly
influenced. Accused 1 had
ample time to think the matter through, throughout the night.
Even
if Capt Louwrens did not explain the accused’s rights to him it is
of no consequence because Insp Hugo did so on the very
evening of
his arrest on the 28
th
July 2004. Hugo also gave accused 1 a printed form which
encapsulates all his constitutional rights. The document is
entitled:
“Notice of Rights in Terms of the Constitution (Section
35 of Act no 108 of 1996).” These letters are written in bold
type.
Accused 1 acknowledged that the signature at
“Signature/thumbprint of detainee” is his. When he realized
that he was caught
out in a lie in cross-examination accused 1 said
he did not read the document either. He passed the matriculation
examinations
and conceded that when he subsequently read the
document he had no difficulty understanding the contents.
If
the aforegoing is not enough then the following warnings by Supt De
Waal (aforesaid) is certainly more than sufficient. Accused
1
confirmed that the superintendent asked him all the questions
pertaining to the pointings-out and that his responses thereto
were
faithfully recorded. Clauses 3,4 and 5 of the form reflect the
following:

g
3. Die
genoemde persoon word meegedeel dat hy in die teenwoordigheid van `n
Vrederegter, `n offisier in die S A Polisie, is. Hy word
gewaarsku
dat hy nie verplig is om enige toneel (tonele) en/of punt(e) op die
toneel (tonele) aan te wys of om enigiets daaromtrent
te sê nie.
Die genoemde persoon word voorts gewaarsku dat wat hy ook al mag
aanwys, of mag sê, genoteer sal word en foto’s van
die toneel
(tonele) en/of punt(e) van die aanwysing, wat later tydens `n verhoor
as getuienis aangebied mag word, geneem sal word.
Hy
word gevra of hy die waarskuwing wat nou aan hom gegee is, verstaan
en begryp. Sy antwoord daarop is soos volg:

g
Ja
ek verstaan
”.
Die
persoon word meegedeel dat hy geregtig is op die dienste van `n
regspraktisyn van sy keuse, en indien hy nie een kan bekostig
nie,
die Staat `n regspraktisyn sal voorsien.
Hy dui aan dat hy
verstaan en verkies om nie van die dienste van `n regspraktisyn
gebruik te maak nie.

g
Ek
sal later `n prokureur aanstel. Ek het op hierdie staduim nie een
nodig nie, aangesien ek my volle samewerking wil gee.”
The contention
therefore that accused’s rights were not explained or properly
explained to him is devoid of any merit.
Accused
1 then proceeded to point out the scene of the murder and further
explained that: The deceased was his biological father.
He was
familiar with the surroundings of the scene of the murder (the
deceased’s business called “Satures Manufacturing –
Kimberley.” He says on the late afternoon of Thursday the 22
nd
July 2004 he was in the company of his friend Greg (accused 3). He
persuaded an initially reluctant accused 3 to assist him to
murder
his father after he told accused 3 “oor my probleem.”
The
two of them waited to ambush the deceased when he walked from the
factory to his residence. When dusk was setting in without
the
deceased making an appearance they went within close proximity of
the factory and continued the observation. They noticed
that the
residence lights were on and soon thereafter saw the deceased
leaving the residence for the factory. When the deceased
eventually
left the factory:

g
Toe
storm Greg hom
…
Toe hardloop ek om na die agterkant van die fabriek om te kyk of
daar nie mense uitkom nie. Met die tyd toe ek weer omkom toe
sien ek
hy lê plat op die grond. Toe is Greg besig om sy hande vas te maak.
Met daardie tyd toe kom ek ook om toe trek ek Greg
af van hom. Toe
vat ek die sleutels by my pa. Toe gaan ek om na die ander fabriek
toe.
Ek het oopgesluit,
toe gaan die alarm af. Toe gaan ek in om die kluis oop te maak.
Nadat ek die kluis oopgemaak het, toe raak ek
bang vir die alarm, toe
draai ek by die deur van die kluis terug. Toe hardloop ek weer om na
die woonstel toe, want toe is ek bang
die “Securities” van die
alarm mense gaan oorkom. Toe gaan haal ek die kombi uit die garage
uit en met die tyd wat ek die kombi
uittrek toe sien ek my pa lê nog
altyd. Hy het `n swart plastiek sak om sy kop gehad toe ry ek met
die kombi Roodepan toe. Greg
het eerste weggeharloop toe ek na die
huis gegaan het. Toe gaan soek ek vir Greg toe kry ek hom hy is by
die huis en besig om te
was. Na hy klaar gewas het toe gaan ons na
`n vriend van my, Oupa. Toe is hy nie by die huis nie.
Toe
sê sy vrou hy is in Bloemfontein. Na daai toe loop ons. Toe vra ek
vir Greg, wat se plan kan ons maak met die kombi, waar kan
ons dit
bêre. Toe sê hy ons kan sy oom ek ken hom nie, … in Prieska
bel. Ons het met die kombi na `n telefoon hokkie by die
garage in
Roodepan gegaan. Dit was buitewerking. Na daai toe ry ons na die
treinspoor toe. Toe vra ek hom wat se plan ons nou
met die kombi kan
maak. Hy sê toe hy ken nie. Toe sê ek vir hom die beste plan om
net die kombi uit te brand. Toe stem ons saam
daaroor. Toe draai
ons die “petrolkap” af en steek (dit aan die) brand. Na die
kombi gebrand het toe loop ons huistoe.”
I
must just add that it was common cause that accused 1 pointed out
all the salient points referred to in the above statement.
On Supt
De Waal’s return from the
in
situ
pointings-out accused 1 was taken to Magistrate Padayachee
(aforesaid) for confirmation of Supt De Waal’s annotations. This
was ostensibly done to satisfy the provision in
Section 217(1)(a)
of
the
Criminal Procedure Act which
stipulates that a confession which
has been made to a peace officer, other than a magistrate or
justice, is not admissible in evidence
unless confirmed and reduced
to writing in the presence of a magistrate or justice.
When
accused 1 came before Magistrate Padayachee she explained his rights
to him once more. He elected to employ the services of
a legal
representative. Mr Dean Van Rooyen (an attorney of the Legal Aid
Board) was assigned to him and the process was completed
before the
magistrate. Clause 14, the pen-ultimate one, reads as follows:

g
14.
V
:
Is die aanwysing(s) en mededeling(s) `n volledige en korekte weergawe
van die aanwysing(s) en mededelings(s) wat u gemaak het?
A:
Nee.”
It
was common cause that accused 1 misunderstood the question and meant
with the “Nee” to convey that the contents of the annotations
were false as the whole act of pointing-out was staged and a
charade. Accused 1 said in evidence he never meant to impugn the
proprierty of what Supt De Waal did. The same confusion appears at
Clause 13. The “Nee”, accused 1 says, ought to be a “Ja”.

In other words what Supt De Waal recorded is what accused 1 in fact
told him and pointed out to the superintendent.
Mr
Jooste, accused 1’s counsel, has sensibly and correctly, not
argued that the annotations and pointings-out were not properly
confirmed and reduced to writing by the Magistrate. Accused 1’s
statement in essence became a new statement before Magistrate
Padayachee. See
R
v Jacobs
1954(2)
SA 320(A
).
THE EVIDENCE OF THE
STATE WITNESSES
Ms
Bettie Van Wyk
testified that about two years or so before the deceased’s murder
she was in the company of accused 1 and 2. Accused 1 and
2, it was
common cause, are cousins. Accused 2 was van Wyk’s boyfriend of
several years. They drove in a single cabin bakkie
from Roodepan
to Kimberley and all of them were seated up front. It was a Friday
evening and accused 1 was in his sound and
sober senses. Accused 1
said to them
“hy
wens hy kan mense kry wat hom pa doodmaak … maar toe draai hy
weer kortlinks om en hy sê hy gaan dit maar doen want as
hy mense
kry dan gaan die mense gou uitvind wie hom pa doodgemaak het en toe
sê en vir Richard (accused 2) hoor hier wat sê
George. Toe sê
Richard vir my hy “worry” nie van dit nie.”
She says Goerge was a serious-minded person and that she was
unable to say at the time whether he meant what he said because
the
conversion on that subject-matter ended abruptly.
Mr
John Jenkins
,
who worked for a Spur Restaurant in Kimberley, knocked off duty
after 24h00 on the morning of the 23
rd
July 2004. He was in the company of his co-worker Ms Mercia
Miller, who also testified. Their evidence was that around 02h00
that morning they alighted from a vehicle next to the only Roodepan
garage, a Caltex Garage, depicted in photos 41, 43, 44 and
45 of
the photo-album Exhibit “A”. Jenkins escorted Ms Miller to her
home in the same street, Eagle Street, as it was unsafe
for the
lady to walk by herself at that time of night. Miller therefore
did not see accused 1 and 2 whom Jenkins subsequently
saw. On
going home Jenkins used a short route and passed under the canopy
of the garage that shade customers and workers from
the elements
and to which was affixed this longitudinal fluorescent electric
lights. He saw accused 1 and 2 there. Accused
1 was seated in the
vehicle and accused 2 was standing next to a public phone (photo
43, point DD) right underneath the garage
canopy. It was common
cause that they knew each other very well for a number of years.
Visibility could not have been better.
He greeted the accused and
went his way, but not before he saw accused 2 boarding the kombi
which accused 1 was seated in.
Jenkins noticed that the kombi’s
rear registration plate was missing. He nevertheless identified
the kombi from photos 1 and
2 of Exhibit “B” as being similar
to the one that he saw accused 1 seated in (behind the steering
wheel).
Jenkins
saw this kombi drive to Ms Moira McGulwa’s place, not far from
the garage. He identified Ms McGulwa’s house on photo
46 point
GG of Exhibit “A”. Ms McGulwa corroborates Jenkins’ evidence
in this respect and relates an encounter earlier
on.
Ms
Moira McGulwa
testified that on the 22
nd
July 2004 at about 19h50 accused 1 came to her home and enquired
after her husband, who was then out of town. Accused 1 said
he
needed to have a vehicle fixed. She and her young son were about
to watch a television program that was due to start at 20h00.
Her
son remarked about the knife on accused 1’s side and Ms McGulwa
expressed her surprise at accused 1, unusually, carrying
a knife.
Accused 1 told her it was for self-protection as he was going to
walk to their farm through the veld but instead walked
in an
opposite direction and heard a vehicle start but was unable to see
it.
Ms McGulwa says
between 02h00 and 03h00 the following morning (23 July 2004) a
person who identified himself as Richard knocked
on her door and
said George wanted to see her husband. She would not wake her
husband. She later peeped through the window and
saw accused 1 and
2 both of whom she know very well, standing next to the deceased’s
kombi. The lighting was good as there
was a streetlight next to
the house. Photos 46 and 47 depict this streetlight clearly. She
knows the kombi very well because
her husband, a mechanic, once
fixed it and the deceased also used to collect some of his workers
next to her house.
Jenkins
and McGulwa corroborate each other that a day or two after the
deceased’s death there was a report in the Diamond Fields
Advertiser (DFA) concerning the death of the deceased. Later the
same day of the report Jenkins sought further information from
McGulwa as he had seen the kombi at her home the early morning of
the 23
rd
July 2004 and at the local police station having read the DFA
report which apparently had a picture of the burnt out kombi.
Jenkins then reported to Captain Louwrens who was the contact
person according to the report. Capt Louwrens confirms that

Jenkins provided him with this information on the 28
th
July 2004 in consequence whereof he arrested accused 1 and accused
2 thereafter.
Accused
1’s girl-friend, Marie Frieslaar
,
testified that on the 23
rd
July 2004 at about 02h00 in the morning her cousin, Ms Victoria De
Klerk, informed her that accused 1 wanted to see her outside
the
house. She refused because her baby, of whom accused 1 is the
father, was hardly a month old and she had recently broken
off her
relationship with accused 1. Accused 1 then called from a public
phone (she heard the rattling of the inserted coins)
and asked that
they meet outside the house. She refused once more and dropped the
call. Shortly afterwards she heard a vehicle
hooting and there was
shouting. The vehicle drove off when she refused to see accused 1.
Then followed another phone call from
the same public phone –
she recognised the number that reflected on her cellphone but did
not answer the phone.
Victoria
De Klerk
supports the version of Frieslaar relating to the person who
alleged that accused 1 wanted to see Frieslaar outside. She saw
some people but cannot identify them because visibility was poor.
But they drove a two-coloured kombi which she was unable to
describe. It was about 02h00 when the strangers visited and she
also heard Frieslaar saying “are you mad” to the person
with
whom she spoke on her cellphone. She also heard Frieslaar saying
it was George.
Captain
Louwrens tied the jigsaw-puzzle together in his investigation. He
discovered that the telephone number that Frielaar
scrolled from
her cellphone corresponded with the number on the telephone booth
that John Jenkins pointed out to him at the Caltex
Garage at
Roodepan, being (053) 873 1791. The cellphone showed that the call
from the booth was received by Frieslaar at 02h37.
Inspector
P Mangope
testified that at about 04h00 he and Constable Jenine Topken
noticed a fire burning on the gravel road leading to Midlands, the
farm where accused 1 and 2 stayed. They discovered that a kombi
had just about burned out entirely and no effort was made or
was
necessary to extinguish the fire. Both the front and rear
registration numbers were missing. This evidence somewhat tallies
with the evidence of Jenkins that the kombi that accused 1 and 2
were in had no rear registration number plate. It was common
cause, through forensic detection and the registration documents
handed in by consent, that the burnt out vehicle belonged to
the
deceased.
I
am satisfied that all the aforementioned witnesses, whose names need
not be repeated, were honest and credible witnesses. I am
satisfied
that they spoke the truth and I accept their evidence except where I
have specifically noted that one or the other is
mistaken.
THE
INVOLVEMENT OF ACCUSED 2 (RICHARD THUSI)
The
evidence (See also Exhibit “N”) show that at the time of the
murder and robbery of the deceased accused 1 and 2 were staying
together at Midlands Farm. They are also cousins. Accused 2 was
present when accused 1 expressed the intention to have his father
killed or to do so personally, as testified to by Bettie Van Wyk
who, both accused 1 and 2 conceded, had a good relationship with
them and amongst whom no animosity or rancour existed. Accused 2
did not conspire with accused 1 to eliminate the deceased on
that
occasion – about two years before the crimes were committed.
Accused
1 has incriminated accused 3 in the admitted pointings-out
accompanied by inculpatory statements. Accused 1 also stated
in his
plea-explanation and evidence that he was with accused 3 when they
went shebeen-hopping from around 16h00 on the 22
nd
July 2004 until after 24h00 on the morning of the 23
rd
July 2004; but
nowhere
but nowhere
does he mention the presence of accused 2. Accused 3’s
plea-explanation and evidence dovetails that of accused 1. He also

does not mention the presence or whereabouts of accused 2.
However,
the credible evidence of John Jenkins and Moira McGulwa places
accused 2 in the deceased kombi and with accused 1 between
02h00 and
03h00 on the 23
rd
July 2004. There are two possible reasons why accused 1 exonerated
accused 2 of any involvement. The first is that accused 2
is his
sister’s son. The second is that if he (accused 1) spilled the
beans on accused 2 the latter would support Bettie Van
Wyk that it
is true that accused 1 planned long ago to kill his father. At 04h00
Insp Mangope spotted the kombi burning and it
must have been burning
for sometime.
There
is no evidence that accused 2 knew between 02h00 and 04h00 that the
deceased was murdered and robbed of his kombi. However,
accused 2
admitted (under cross-examination) that he knew the deceased very
well and in fact worked at his factory for sometime.
It is also
common cause that he knew the deceased’s kombi because both the
deceased and accused drove it regularly to transport
the workers.
It was an oldish red and white Toyota Hi-Ace kombi. The early photo
taken shows that it still bore the “CC”
as distinct from “NC”
registration number. Accused 1 was asked: “Richard (accused 2)
are you not with him most of the time.
I understand you were staying
at the same place – ‘
Ek
en Richard bly op een plek, maar hy is werksaam.’
Having regard to the
aforegoing the question arises why would this cousins part company
before the kombi is burned. Mr De Nysschen
has argued that at the
very least on the proved facts accused 2 is guilty as an accessory
to the robbery. However, accused 2 cannot
be guilty as an accessory
to the robbery, or murder for that matter, if he was not shown to
have known anything about the robbery
or murder at the time the
vehicle was set on fire.
What
then, did accused 2 make himself guilty of, if anything, accused 2
had known for some time that accused 1 expressed the intention
to
kill his father and did nothing about it. There was a moral duty
but not a legal duty on him to report accused 1’s evil
intention. If accused 2 was a police officer a legal duty would
have arisen. In addition to the aforegoing accused 2 was seen
in
the stolen kombi hours after it was stolen and the deceased was
murdered. Shortly after he was seen in the kombi it was set
on
fire, ostensibly to obliterate fingerprints or other genetic
material that could be used in DNA testing. That, in my view,
is
actively assisting accused 1, the perpetrator of the murder and
robbery to evade the ends of justice. The state need not prove
who
in fact, between accused 1 and 2 or their accomplice(s), did the
incineration of the vehicle. See:
S
v Phallo and Others
1999(2) SACR 558 (SCA
).
Accused 2 knew that accused 1 was not the owner of the vehicle and
had no right to destroy it. At 565i-566b Olivier JA propounded
the
principle as follows:

g
On
appeal, dealing with a reserved question of law whether in the
circumstances set out above
Neser
J
was correct in acquitting all three of the accused of being
accessories after the fact,
Schreiner
JA
(with the concurrence of
Fagan
CJ
,
Beyers
and
Malan
JJA
and
Van
Blerk AJA
)
launched what was later in the legal literature called the 'Schreiner
doctrine': in a case where there are several accused who have
tried
to cover up a crime which may have been committed by only one of
them, the accused persons other than the actual murderer commit
the
crime of being an accessory after the fact to his crime when, for
instance, they hide the body. That crime of theirs is their
own
distinct crime and not part of the crime committed by the murderer.
If then the actual murderer acts in concert with them, he
is, it is
true, taking steps in the concealment of the murder committed by him
but he is at the same time participating in their
crime of being
accessories after the fact to murder as their accomplice. All the
accused can in such a case be convicted as accessories
after the fact
to murder (see 221C-E).”
It
is evident that accused 2 had made himself guilty as an accessory to
theft of the vehicle. Theft is a competent verdict to Robbery
(Section 260
of the
Criminal Procedure Act 51 of 1977
).
THE
INVOLVEMENT OF ACCUSED 3 (GREGORY OLIPHANT)
Mr
De Nysschen has agued that accused 3 is a co-perpetrator with
accused 1 in the murder and the robbery charges. He has invoked
the
provisions of
Section 3
of the
Law of Evidence Amendment Act, No 45
of 1988
, for this contention. This section stipulates:
“3
Hearsay evidence
(1) Subject to the
provisions of any other law, hearsay evidence shall not be admitted
as evidence at criminal or civil proceedings,
unless:
(a) each party
against whom the evidence is to be adduced agrees to the admission
thereof as evidence at such proceedings;
(b) the
person upon whose credibility the probative value of such evidence
depends, himself testifies at such proceedings; or
(c) the court,
having regard to –
(i) the nature of
the proceedings;
(ii) the
nature of the evidence;
(iiii) the purpose
for which the evidence is tendered;
(iv) the probative
value of the evidence;
(v) the reason why
the evidence is not given by the person upon whose credibility the
probative value of such evidence depends;
(vi) any prejudice
to a party which the admission of such evidence might entail; and
(vii) any other
factor which should in the opinion of the court be taken into
account, is of the opinion that such evidence should
be admitted in
the interests of justice.
(2) The provisions
of ss (1) shall not render admissible any evidence which is
inadmissible on any ground other than that such evidence
is hearsay
evidence.
(3)
Hearsay evidence may be provisionally admitted in terms of ss (1)(b)
if the court is informed that the person upon whose credibility
the
probative value of such evidence depends, will himself testify in
such proceedings: Provided that if such person does not later
testify
in such proceedings, the hearsay evidence shall be left out of
account unless the hearsay evidence is admitted in terms of
para (a)
of ss (1) or is admitted by the court in terms of para (c) of that
subsection.
(4) For the
purposes of this section –
''hearsay evidence''
means evidence, whether oral or in writing, the probative value of
which depends upon the credibility of any
person other than the
person giving such evidence;
''party'' means the
accused or party against whom hearsay evidence is to be adduced,
including the prosecution.’”
Mr
Kock, for accused 3, has objected to the admission of the hearsay
evidence. The hurdle that the state has to overcome is that
junior
counsel, in the absence of Mr De Nysschen, merely hinted at his
intention to use the statements in accused 1’s
pointing-out-cum-confession
where he implicated accused 3 as the
person who physically attacked and killed the deceased:
From p213 of the
transcript counsel for accused 3, Mr Kock, cross-examined Captain
Louwrens on the contents of the pointings-out
and annotations made
pursuant thereto in which accused 1 implicates accused 3. At p214
I had this interaction with Mr Kock for
elucidatory purposes:

g
HOF
:
Vra u nou aangaande beskuldigde 1 of beskuldigde 3?
MNR.
KOCK
:
U edele, die verklaring, , die getuienis wat gelewer is het
betrekking indirek op beskuldigde 3.
COURT
: Well,
if you will just be careful. I don’t know whether you consulted
with accused 1, because I must just say to you that there
is a full
bench judgment that if you show that there is co-operation between
counsel and that there was consultation, then cognisance
will be
taken of the fact. Kyk, U is geregtig om aan te gaan, ek weet nie
hoe dit betrekking het op beskuldigde 3 nie, want wat
beskuldigde 1
sê van beskuldigde 3 is hoorsê getuienis.
And
at no point has the State said that it’s going to invoke the Act on
Hearsy evidence, 1988, in this regard
.
There is no such intimation. But you are free to continue with your
cross-examination. I am merely pointing this out.
MR
KOCK
: As
Your Lordship pleases. U Edele, dit was net `n aspek wat ek gevoel
het `n plig op my plaas om dit net op te klaar. Kaptein
Louwrens,
beskuldigde 3, Greg, sal kom getuig dat hy op geen stadium saam met
beskuldigde 1 betrokke was by die pleging van die moord
op die
oorledene nie en dat hy ontken alles wat aan u gemeld is deur
beskuldigde 1 met betrekking tot die pleging van die misdryf.

Beskuldigde 1 het dit aan my gemeld U Edele. Rondom die verdere
stelling dra ek nie kennis nie.”
The
next occasion that the issue respecting to the hearsay evidence was
broached was at p 219. The recording went as follows:

g
MR
XX
: Thank
you M’Lord. M’Lord, before I continue with the next witness, I
just need to put it on record based on what Your Lordship
said to
Counsel for accused 3 in respect of whether the State is going to use
the statement by accused 1 against accused 3, in terms
of the Hearsay
Act. M’Lord, it was too early to indicate that, because the
statement had not yet been handed in by the State.
The position of
the State is, in the event if it is handed in, I will…
(interruption).
COURT
: No,
no, no, you do it as you see fit Mr XX. I merely pointed that out to
him, because in any case, the captain will have to come
back and
testify, if not called by you or the defence, one of the defence
counsel, I will call him. You may continue.”
The
difficulty that I have is that at no stage after this issue was
foreshadowed did the State overtly revert to the hearsay issue
as
per undertaking. In fact the state seemed no longer to be
interested in the hearsay evidence because junior state counsel (Mr
XX) informed the Court that he was dispensing with the evidence of
Magistrate Padayachee. In the interests of justice I called
the
Magistrate in terms of
Section 186
of the
Criminal Procedure Act.
See
record pp 246(1) to 247(6). Then the state (junior counsel)
closed its case without re-calling Captain Louwrens. Once again the
Court called Captain Louwrens after the following remarks:

g
COURT:
Mr
XX, I don’t know, --- you see if an undertaking is made towards
your colleague, then you must abide thereby. It was indicated
by the
State to Mr Kock when cross-examination was undertaken that he need
only confine himself, this is the cross-examination of
Captain
Louwrens, to the trial-within-a- trial. It may well be that Mr Kock
no longer wants to cross-examine Captain Louwrens, but
they need to
be informed about that, because it was stated that Captain Louwrens
will be called. This is how it works. I don’t
want arguments
later on that Captain Louwrens was not called and therefore someone
has been prejudiced and so forth. These are things
that you really
must learn to know.”
I
point out that these are some of the things that made me to request
the re-instatement of Mr De Nysschen in the case. See paragraph
37
(above). I will not deal with all these problems because the
defence has not, fairly, made any issue of the Court’s
intercessions.
The
next occasion when the admissibility of the hearsay evidence was
brought up was when Mr De Nysschen argued for the conviction
of
accused 3 at the conclusion of the trial. In
S
v Ndhlovu and Others
2002(2) SACR 325 (SCA) at 337c – 338c (paragraphs 17 and 18)
Cameron
JA
stated:

g
[17]
Aside from the importance of these cautionary words, a trial court,
in applying the hearsay provisions of the 1988 Act, must
be
scrupulous to ensure respect for the accused's fundamental right to a
fair trial (Bill of Rights, s 35(3)). Safeguards including
the
following are important:
•
First,
a presiding judicial official is generally under a duty to prevent a
witness heedlessly giving vent to hearsay evidence(
S
v Zimmerie en `n Ander
1989(3) SA 484 (C) at 429F-H
(Friedman
J
,
Tebbutt
J
and
Conradie
J
concurrring).
More specifically under the Act, 'it is the duty of a trial Judge to
keep inadmissible evidence out, [and] not to listen
passively as the
record is turned into a papery sump of ''evidence'''(
S
v Ramavhale
1996(1) SACR 639 (A) at 651c).
•
Second,
--- .
[18]
Third, an accused cannot be ambushed by the late or unheralded
admission of hearsay evidence. The trial court must be asked clearly
and timeously to consider and rule on its admissibility. This cannot
be done for the first time at the end of the trial, nor in argument,
still less in the court's judgment, nor on appeal. The prosecution,
before closing its case, must clearly signal its intention to
invoke
the provisions of the Act, and, before the State closes its case, the
trial Judge must rule on admissibility, so that the
accused can
appreciate the full evidentiary ambit he or she faces.”
The
state at no stage expressly or by necessary implication alerted the
defence (in particular accused 3’s counsel)
on
record
that it was now adducing hearsay evidence against accused 3. It
would have been vital for the state to disclose what the purpose
of
adducing the impending hearsay evidence was. The affected counsel’s
attitude would then be canvassed and his representation
heard. If
no agreement or consent to the admission of the evidence was
obtained the state would have to consider what to do and
ask for a
ruling not later than at the close of the state’s case. This
would afford the affected accused the opportunity to
decide on
whether to testify or not and if he/she testifies on what aspects
the focus must lie. I am, in the result not satisfied
that accused
3 was afforded a fair choice or any choice at all on how to meet the
hearsay evidence emanating from accused 1’s
statement and
pointings-out. If accused 1 did not dispute the admissibility of
the pointings-out, as he has done, and had in fact
confirmed the
correctness thereof same would have been admissible against accused
3. (See
S
v Phallo
(
supra
)
at 568h – 569c (paragraph 36). That fact, in conjunction with
accused 3’s evidence that he was in company of accused 1 from
about 16h00 to after 24h00 on 22
nd
July 2004 and 23
rd
July 2004, save for less than an hour when he had a bath, would have
been sufficient to convict accused 3.
Mr
De Nysschen has referred to an as yet unreported decision of this
court
S
v Johannes Waldeck
:
case no. CA&R32/05, Delivered on 27/01/2006, Unreported (Kgomo
JP et Molwantwa AJ) as authority for the fact that the trial
court
need not always make a ruling at the close of the state case. I
agree with Mr Kock that the Waldeck case is distinguishable.
In
that case we stated at p27 para 35:

g
35. What
distinguishes the current case from the two mentioned in 34.1 and
34.2 (above) is that:
There was no
ambush in this case. The prosecution apprised the defence and the
Court before the inception of the trial that section
3 of the Act
will be invoked;
Unlike
the
Ramavhale
-case
where the defence objected against the leading of the hearsay
evidence, in casu, as already explained the defence (two lawyers
acting in tandem and jointly for the same accused) ostentatiously
embraced the adduction of such evidence;
In
casu the appellant fully exploited its entitlement to scrutinize
the probative value of the hearsay evidence and also tested
its
reliability through cross-examination. This further distinguishes
this case from the
Ramavhale
-case
where the accused was not afforded this opportunity;
The
appellant had ample opportunity to re-open his case but chose not
to do so when invited by the Magistrate.”
I
also agree with Mr Kock that the state in
casu
never made any decision to invoke the hearsay evidence, with the
result that he has not specifically focused his cross-examination
on
testing the veracity and reliability of accused 1’s statement. In
fact Mr Kock argued that accused 1 is protecting accused
2 and
substituting accused 3 for accused 2.
In
my view accused 3 has been ambushed and will be seriously prejudiced
by the admission of the hearsay evidence. To that end Mr
De
Nysschen has conceded, fairly and correctly so, that the remaining
evidence, if the hearsy evidence is excluded, is not sufficient
to
convict accused 3 on murder and/or robbery. I would add not even as
accessory after the fact. If the hearsay evidence is admitted
he
shall not have been accorded a fair trial. See:
Key
v Attorney-General, CPD & Another
[1996] ZACC 25
;
1996 (4) SA 187
(CC
)
at 195F-196B (para 13).
Whilst
Moira McGulwa was a good and honest witness my view is that she may
have made a mistake with the identification of accused
3. In her
evidence-in-chief she mentions that she knew accused 3 as Greg
before the incident. But she did not mention the name
Greg or
Gregory or any name she knew accused 3 by in her police statement
even though she says she knew him well. The cross-examination
by Mr
Kock went as follows:

g
Mev
McGulwa,
ek tree op namens beskuldigde 3, Gregory Oliphant. Is dit korrek dat
u getuienis was dat u vir Gregory gedurende die oggend
van die 23
ste Julie 2004 in die geselskap van George Robertson en Richard
gesien het? –-Ja.
U
het vir Gregory geken voor die besoek wat hulle afgelê het die
oggend van die 23ste. –- Ja.
U het geken wat
Gregory se naam was. –- Ja.
U het ook geweet
waar woon Gregory. -- Nee.
Het
u vir Gregory gereeld gesien voor die voorval, voor die besoek van
die 23ste Julie 2004? –- Ja, ek het vir hom al baie saam
met George
gesien en hy was ook al by my huis.
U sal hom enige tyd
uitken as u hom sien. U sal, as hy verby gestap het, sou u geken het
dit was Gregory. –- Ja.
Toe
u die verklaring aan die polisie maak, het u geweet sy naam was
Gregory Oliphant? –- Ja. Nee, ek ken hom net as Greg.
Of
Greg, ja. Nou kan u net vir die Hof verduidelik hoekom u dit nie
nodig geag het om aan die polisie te sê dat die persoon wat
saam met
George en Richard was, was Gregory. Dit was Greg. -- Ek verbeel my
iewers het ek vir hulle gesê.
Ek
kan u verwys na u verklaring.
N
ê
rens
in u verklaring is daar melding van Greg. –- Ek weet regtig nie.”
This is why I have
some doubts concerning the correctness of his identification.
What
remains is how the deceased met his death and the cause of death.
Dr T D Berlyn who conducted the post-mortem examination
is one of
the most thorough doctors who have testified before me. It is a
great pity that he has now emigrated and this was one
of the last
cases he has testified in. The summary that follows of the
deceased’s injuries does not begin to do justice to his
detailed
evidence. The veracity of his evidence was not challenged including
the fact that he drew the inescapable conclusion
from the nature of
the injuries that two types of instruments were used to inflict the
injuries. He stated that a titanic struggle
was waged before the
deceased succumbed to his injuries and was immobilised. He says
this points clearly to the fact that at least
two assailants have
been involved in the attack.
Dr Berlyn further
testified as follows:

g
Summary
of chief autopsy findings
These are 3 factors
contributing to the death of this patient:
Asphyxia (due to
suffocation/drowning in own blood).
Cerebral oedema
with subarachnoid and subdural haemorrhage.
Massive blood loss
due to sharp injury of scalp.
All 3 factors,
present on their own, could have caused death eventually.
I
feel that
Asphyxia
was the primary reason that he died, for the following reasons:
1. Signs
of asphyxia in cerebral cortex and lungs.
2. Inhaled
blood, absent of mouth trauma and presence of head would at the back
of the head probably indicate that respiration was
still present when
bag was placed over head (this large volume of blood probably
wouldn’t have been inhaled without bag over head).
3. Central
cyanosis and protruding tongue: a
tentative
indication of smothering.
4. 0,5
litres blood found in bag. He was unlikely to have bled this much
after death and we must draw the conclusion that the bag
was placed
over his head before that.
5. There
were also no signs of brainstem herniation.’
As I explained
before, that the brainstem herniation would have occurred if the
pressure on the brain was sufficient enough to cause
death.
The following were
also noted:
Multiple defence
type injuries on both forearms which had been caused by a blunt
object.
Multiple sharp
injuries to the back of the head which were caused by a sharp object
for example a panga.
Blunt
trauma to the hands which were possibly sustained by trying to
protect the head.”
I
agree with Mr De Nysschen that the murder was unquestionably
pre-meditated and that the murderers had the direct intent to murder
the deceased.
I am satisfied from
the reconstruction of the scene that the deceased locked his factory
after 19h00 and switched on the security
alarm as he closed the door
behind him. He was attacked by accused 1 and an accomplice or
accomplices who inflicted the injuries
reflected in the post-mortem
report and Dr Berlyn’s evidence. He had the keys of the factory
and the safe with him. The robbers
robbed him of these keys but
when they entered the factory the alarm was triggered at 19h26 as
shown by the Echotech Electronics
Security computer print-out handed
in by consent and the evidence of Ms M H Jones who operated the
operations room on the night
in question. The robbers fled empty
handed because they feared being caught.
Certainly
when the Echotech Electronics security officer, Mr Eugene Limburgh,
arrived at the factory the motor gate, which had been
locked earlier
was open and the criminals were gone. Mr Limburgh, who investigated
the burglary, only checked the building where
the alarm was
installed, but he missed discovering the dying deceased at the
adjacent building. Limburgh reacted to the triggered
alarm before
20h00 on the evening of the 22
nd
July
2004.
There
is no doubt on an overview of all the facts that the pointings-out
and annotations thereto are consistent with all the objective
facts
which were separately and independently established. These factors
are strong pointers to the fact that the statement and
pointings-out
made by accused 1 to Supt De Waals evidences the truth and are
therefore some guarantee or safeguard against a wrong
conviction.
THE PERFORMANCE OF
ADV THEO FOURIE
It
is now my uneviable task and I am now constrained to examine what it
was that irked me to call upon the Director of the Legal
Aid Board
to check whether accused 2 was competently represented. When
accused 2 was still represented by Ms Segone he chose,
as he was
entitled to, to not disclose the basis of defence. When Mr Theo
Fourie took over from Ms Segone he had no representation
to make.
Accused 2 was then positively identified by Mr Jenkins and Ms
McGulwa at different places being in the company of accused
1 who
had made pointings-out and implicated himself in the accompanying
statements. In addition the two were seen driving in the
deceased’s
stolen vehicle.
In the face of this
evidence all that Mr Fourie asked these witnesses in
cross-examination is the following:
To Mr Jenkins who
testified before Ms McGulwa the only question was:
“
V: Mnr Jenkins,
beskuldigde 2 sê hy was nie daar nie.
A:
Ek het vir Richard gesien. Ek ken vir Richard. Ons het saam groot
geraak by die plaas. Ons het nou en dan saam sokker gespeel.”
To
Ms McGulwa who said she had known accused 2 for more than two years
the entire cross-examination was the following:
“
Mevrou, as ek u
reg verstaan, dan het u net Richard se stem gehoor. U het hom nooit
gesien die aand nie. -- Ek het hom gesien.
Hy het op die stoep
gestaan voor ons voordeur.
U
sien, want Richard sê hy ken u nie. -- Maar ek ken vir hom. En hy
sê ook dat hy was daardie aand nie daar gewees nie, daardie
nag. --
Richard was daar. Hy was die een wat geklop het by my deur en as ek
kon reg onthou, het hy ‘n mus op sy kop gehad.
Ek ken hom.
So
die persoon die mus wat hy op gehad het, het dit sy, ‘n gedeelte
van sy gesig bedek? -- Nee, ek kon sy gesig sien.”
Mr
Fourie called accused 2 to the witness box, who raised an alibi for
the first time to the effect that he was at work on Thursday
the
22
nd
July 2004 and knocked off at about 17h00. He went straight home and
retired to bed because he developed “arc-eyes” from welding.
He
went on to say he was in the company of a host of family members,
one of whom, his sister Ms Ishmael, was subsequently called
to
testify. When the Court enquired from accused 2 whether he was
aware that his counsel did not put this version and alibi to
Jenkins
and McGulwa, Mr Theo Fourie had the temerity to interrupt the Court
and the mendacity, yes mendacity, to say he has put
the full
version. When the record proved him wrong he maintained that it
was
unnecessary and not a requirement that he should have put his
version and alibi to the said witnesses
.
It
was the latter (underlined) statement which raised the question
whether accused 2 statement which raised the question whether
accused 2 instructed his counsel fully on his version and alibi and
that counsel defaulted on carrying out his client’s instructions.

The problem is that if an accused has properly instructed his
counsel on what his (legal) defence is and counsel withholds this
or
fails to put his client’s version this may not be held against the
client as an afterthought and a recent fabrication. The
obverse of
the coin is that the accused’s counsel must then either be held to
be incompetent or to have acted unethically or
both.
In
S
v Mkhise
;
S
v Mosia
;
S
v Jones
;
S
v le Roux
1988 (2) SA 868
a
at p873J the Appellant Division held:

g
Once
admitted to practise, an advocate, by virtue of his office, enjoys
certain rights and privileges (for instance, qualified immunity
for
defamatory statements made in the course of a trial). And his
authority to act on behalf of an accused as he deems fit is
wide-ranging.
(See
R
v Matonsi
1958 (2) SA 450
(A
)
and
R
v Baartman and Others
1960 (3) SA 535
(A
)
at 538A.) … The aforementioned rights and privileges entail a
corresponding duty. It is one owed by counsel not only to the accused
he represents but primarily to the Court, the standards of his
profession and to the public. The proper administration of justice
requires that he be a person of unquestionable honesty and integrity.
Thus, as was pointed out in
Ex
parte Swain
1973 (2) SA 427
(N
)
at 434H,
'it
is of vital importance that when the Court seeks an assurance from an
advocate that a certain set of facts exists the Court will
be able to
rely implicitly on any assurance that may be given. The same standard
is required in relations between advocates and between
advocates and
attorneys. The proper administration of justice could not easily
survive if the professions were not scrupulous of
the truth in their
dealings with each other and with the Court'.”
The
duty and responsibilities of a cross-examiner, whether it be in a
criminal or civil case, has been authoritively stated by the
Constitutional Court in
President
of the RSA v South African Rugby Football Union
2000 (1) SA 1
(CC)
at 36J-38A (paras 61-64) as follows:

g
[61]
The institution of cross-examination not only constitutes a right, it
also imposes certain obligations. As a general rule it
is essential,
when it is intended to suggest that a witness is not speaking the
truth on a particular point, to direct the witness's
attention to the
fact by questions put in cross-examination showing that the
imputation is intended to be made and to afford the
witness an
opportunity, while still in the witness-box, of giving any
explanation open to the witness and of defending his or her
character. If a point in dispute is left unchallenged in
cross-examination, the party calling the witness is entitled to
assume that
the unchallenged witness's testimony is accepted as
correct. This rule was enunciated by the House of Lords in
Browne
v Dunn
(1893) 6 R 67 (HL)
and has been adopted and consistently followed by our courts (
R
v M
1946 AD 1023
at 1028;
Small
v Smith
1954 (3) SA 434
(SWA
)
at 438E-H;
S
v van As
1991 (2) SACR 74
(W
)
at 109b-g).
[62]
The rule in
Browne
v Dunn
is not merely one of professional practice but 'is essential to fair
play and fair dealing with witnesses'. It is still current in
England
and has been adopted and followed in substantially the same form in
the Commonwealth jurisdictions.
[63]
The precise nature of the imputation should be made clear to the
witness so that it can be met and destroyed, (
Allied
Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation
(1983) 44 ALR 607
(SC (NSW)
)
at 623-34) particularly where the imputation relies upon inferences
to be drawn from other evidence in the proceedings. It should
be
made clear not only that the evidence is to be challenged but also
how it is to be challenged. This is so because the witness
must be
given an opportunity to deny the challenge, to call corroborative
evidence, to qualify the evidence given by the witness
or others and
to explain contradictions on which reliance is to be placed.
[64]
The rule is of course not an inflexible one. Where it is quite clear
that prior notice has been given to the witness that his
or her
honesty is being impeached or such intention is otherwise manifest,
it is not necessary to cross-examine on the point, or
where 'a story
told by witness may have been of so incredible and romancing a nature
that the most effective cross-examination would
be to ask him to
leave the box'.”
The
latter attitude would have been employed by the state because
accused 2 and his witness were lying through their teeth because
accused 2 was positively identified by Jenkins and McGulwa as
already stated. In
S
v Thebus & Another
[2003] ZACC 12
;
2003 (2) SACR 319
(CC
)
at 350d-e (para 63) the Constitutional Court stated:

g
[63]
That a failure to disclose an alibi timeously has consequences in the
evaluation of the evidence as a whole is consistent with
the views
expressed by
Tindall
JA
in
R
v Mashelele
1944 AD 571
.
After stating that an adverse inference of guilt cannot be drawn
from the failure to disclose an alibi timeously,
Tindall
JA
goes on to say:
'But
where the presiding Judge merely tells the jury that, as the accused
did not disclose his explanation or the alibi at the preparatory
examination, the prosecution has not had an opportunity of testing
its truth and that therefore it may fairly be said that the defence
relied on has not the same weight or the same persuasive force as it
would have had if it had been disclosed before and had not been
met
by evidence specially directed towards destroying the particular
defence, this does not constitute a misdirection.'”
At p 351f (para 68)
the Court held:

g
[68]
The failure to disclose an alibi timeously is therefore not a neutral
factor. It may have consequences and can legitimately be
taken into
account in evaluating the evidence as a whole. In deciding what, if
any, those consequences are, it is relevant to have
regard to the
evidence of the accused, taken together with any explanation offered
by her or him for failing to disclose the alibi
timeously within the
factual context of the evidence as a whole.”
I
therefore conclude this aspect by stating that Adv Theo Fourie not
only shirked his duty towards the Court but towards accused
2 as
well. However, his failure did not prejudice accused 2 because the
latter’s alibi was false and stands to be rejected.
If anything,
the State could have been prejudiced by the belated disclosure of
the alibi.
Having
said what goes before I make the following order
:
Accused 1 is found
guilty of Murder and Robbery (with aggravating circumstances) of the
deceased, Mr Werner Rolf Heinze.
Accused 2 is found
not guilty and is acquitted of Murder and Robbery but is found
guilty as an accessory to the theft of the deceased’s
vehicle.
Accused
3 is found not guilty and is discharged on both counts and any
competent verdicts.
____________________
F
D KGOMO
JUDGE
PRESIDENT
NORTHERN
CAPE DIVISION
For
the State : Adv J De Nysschen
Assisted
by: Mr XX
Instructed
by: Director of Public Prosecutions
For
Accused 1 : Mr L Jooste
For
Accused 2 : Mr T Fourie
Instructed
by: Legal Aid Board
For
Accused 3: Adv R J Kock
Instructed
by: Thiso Attorneys, KIMBERLEY