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[1986] ZASCA 107
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S v Govender (474/85) [1986] ZASCA 107 (25 September 1986)
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IN
THE SUPREME COURT OF SOUTH AFRICA
APPELLATE
DIVISION
Case
No:474/85
In
the matter between:
SAGREN
PERUMAL GOVENDE
Appellant
And
THE
STATE
Respondent
Coram:
JOUBERT, VAN HEERDEN JJ.A. et
BOSHOFF
AJA.
Heard:
22 August 1986
Delivered:
25
September 1986
JUDGMENT
JOUBERT,
JA
Before
FRIEDMAN J. and two assessors in
the
Durban and Coast Local Division the appellant was
charged
as accused no 1, together with Maduray Jayapragasen
and
Frank Ganas Govender as accused nos 2 and 3 respectively,
b
with
having murdered the deceased Gopaul Iyer on Tuesday
31
January 1984 in the district of Chatsworth (count 1)The appellant was
also charged alone on count 2 with having
committed
a fraud upon Norwich Union Life Insurance
Society
by making out that the deceased on 12 August 1983
completed
an application form (Exhibit "F") for insurance
on his
life for the insured sum of R75 000-00 in favour
of
accused no 3 (falsely alleged therein to be his nephew'
whereas
the deceased in fact did not apply for a life policy which was issued
during September 1983 by Norwich Union Life Insurance
Society in
pursuance of its acceptance of the said application form. The
appellant and accused no 3 are first cousins since Lutchmee
Govender,
the mother of accused no 3, is the sister of the appellant's father.
On
count 1 the appellant was found guilty of murder without extenuating
circumstances and accordingly the mandatory death sentence
was
imposed. Accused no 2 was found guilty of assault with intent to do
grievous bodily harm and was sentenced to 2 years' imprisonment
half
of which was suspended for five years on certain conditions. Accused
no 3 was found guilty of murder with extenuating circumstances
and
was sentenced to 15 years' imprisonment- On count 2 the appellant was
found guilty of fraud and sentenced to 4 years' imprisonment.
With
leave of the Court
a
quo
the appellant now appeals to this Court against his convictions. on
both counts.
On
Wednesday morning, 1 February 1984, the body of the deceased was
found near the side of Bul-Bul Drive in Silverglen, Chatsworth.
According to a
post
mortem
examination which was performed the next day on him by the district
surgeon Dr Misra the cause
of death
was attributed to multiple penetrating wounds
of the
chest. It was common cause that the concentration of alcohol in a
blood specimen of the deceased
was 0,31
grams per 100 millilitres. According to
Dr Misra
that would, generally speaking, be indicative
of the
deceased having been fairly heavily intoxicated
when
death ensued.
The
appellant conducted the business of an
insurance
broker in his home office at Isipingo. Through
the
agency of the appellant the deceased applied on
12 July
1983 to Norwich Union Life Insurance Society
for
insurance on his life for the insured sum of
R34
000-00 in favour of his wife Selvanayagie Iyer
as
beneficiary (Exhibit"H"). This application was replaced by
an amended application (Exhibit "G") signed by
the deceased
on 1 September 1983 to rectify an error. The monthly, premium was
R40-00 in respect of the issued life policy. The
appellant kept
photo-copies of the three applications (Exhibits "F", "G"
and "H") in his office file
at his home. The appellant
opened at the Isipingo branch of the South African Permanent Building
Society a transmission account
in the name of the deceased to enable
the appellant to pay the premiums, collected by him from the
deceased,
into
the said account for remittance to Norwich
Union
Life Insurance Society, On 1 February 1984 the appellant paid R100-00
into the transmission account of
the
deceased but he claimed to have done so before he was
apprised
of the death of the deceased.
On
Thursday 2 February 1984 the investigating
officer
Naidoo interviewed the appellant in his home
office.
The appellant claimed that he was the whole of
31
January 1984 at his home. The appellant also told him
that he
last saw the deceased during December 1983. Later
the
appellant admitted under cross-examination that he told
this lie
in order to protect himself (Vol 4 p 374 of the
record).
Upon being asked to produce insurance documents relating to the
deceased the appellant produced photo-copies
of
Exhibits "G" and "H" as well as a policy in which
the
wife
of the deceased was stated to be the beneficiary. It
is
significant that he put Exhibit "P" and the policy for the
insured
sum of R75 000-00 into an envelope which he
handed
to his attorney later that morning. The appellant
was
instructed to drive his red Mazda vehicle to the Chatsworth
Police
Station where two very small blood stains were found
in the
Mazda, viz one on the upholstery of the right hand
back
door and the other one on the back of the front
passenqer
seat. The appellant was arrested as a suspect,
On
Saturday 4 February 1984 the appellant took the police
to the
house of accused no 2 where the latter was arrested.
Accused
no 2 in turn took the police to the house of accused
no 3
where the latter was apprehended. The police kept
accused
nos 2 and 3 in separate cells until they appeared
in the
Magistrate's Court at Chatsworth. They co-operated
fully
with the police by admitting having themselves taken
part in
the killing of the deceased and also by implicating
the
appellant therein.
The
learned trial Judge gave the following correct
summary
of the course of conduct adopted by accused nos 2
and 3
after their arrests, including the tenor of their
evidence:
"In
brief, the version given by accused No 2 and accused No 3 in their
statements to the police and at the Section 119 Proceedings,
and then
again in giving evidence on oath in this court, was to the following
effect. They claim that prior to the afternoon of
Tuesday the 31st of
January 1984, accused No 1 had told them that he had a job for them.
He also arranged to take them out on the
evening of the 31st of
January 1984. They claim that, on the evening of Tuesday the 31st of
January 1984, accused No 1 fetched
them outside the house in which
accused No 2 resided in Road 9[…] Chatsworth, at about 7,30
pm. He fetched them in a red
motor vehicle. In the car was another
person, a front seat passenger, who was obviously very much the worse
for liquor. They claim
that accused No 1 then told them that this was
the person upon whom the job was to be performed. At first they
hesitated to get
into his car but later, when accused No 1 assured
them he was just joking, they did so and they drove off. After a
variety of activities
or movements, which it is not necessary now to
detail, and during the course of which accused No 1 plied them,
that is
to say accused 2 and 3, with a considerable quantity of liquor,
accused No 1 drove them, including the deceased, to a quiet
spot in
Bul-Bul Drive, Chatsworth. There he stopped the car, produced or
handed to them a knife and a stick and ordered them to
assault the
deceased, saying that the deceased was his enemy. After some
persuasion accused No 3 assisted the deceased out of the
car and held
him up, while he was struck by accused No 2 wielding a stick.
Thereafter accused No 2 returned to the car and accused
No 3 allowed
the deceased to fall down. Accused No 3 was then ordered to stab the
deceased and, having commenced stabbing him,
it is claimed that
accused No 1 then ordered or instructed accused No 3 to stab the
deceased until he was dead. After the deceased
had been killed, his
body was left in the grass at the side of the road and they drove
off. A little further on the car was again
stopped, and accused No 1
then told accused Nos 2 and 3 to dispose of the stick and knife in
the grass at the side of the road.
Thereafter accused No 1 took the
two of them to accused No 2's
house,
but on the way he advised them that the deceased had been insured and
that he would be paying them R2 500,00 each for having
assisted him
in killing the deceased-Accused No 3 claims further that the
following day accused No 1 called at his house and handed
him
R500,00, which he thereafter gambled away and/or spent."
The
following correct summary of the appellant's evidence in regard to
his activities during the evening
of 31
January 1984 was given by the learned Judge:
"According
to this version accused No 1 on .. the 31st of January 1984, was
travelling in his red Mazda Motor-vehicle along
Westcliffe Drive in
Chatsworth at about 6,30 pm when he saw accused 2 and 3 and the
deceased at a bus shelter. He stopped and gave
them a lift to the
corner of Silverglen Drive and Grassmere Road in Silverglen, and he
was told by them that they had intended
going to Bul-Bul Drive. He
claims that, after dropping them off, he went to see
a
client, a Mr K Naidoo, at a house at 1[…] Grassmere Road,
Silverglen. It now transpires that the house in question was
one
occupied by a Govender family and accused No 1 went to the house not
only to see K Naidoo, who was a friend of the Govender
family, but
also a member of that family one Ronnie Govender. Accused No 1
explained that he left 1[…] Grassmere Road at
about 8,30 pm on
his way home and, whilst, driving along Silverglen Drive where it
intercepted with Bul-Bul Drive, he observed
accused 2 and 3 running
down Bul-Bul Drive. They waved to him, he stopped, they got into the
car and he gave them a lift. He claims
that accused 2, at this stage,
was carrying a knife. As soon as the two of them, accused 2 and 3,
entered the car, accused No 3
said to him words to the effect, 'Drive
on and ask no questions.' Because accused No 2 had a knife and
because accused Nos 2 and
3 had clearly been drinking, he asked no
questions and drove on. Eventually he dropped off accused Nos 2 and
3,but not before accused
No 2 had in the car mentioned words to the
effect that they had assaulted somebody. He then proceeded home."
In
the course of a very comprehensive judgment the learned trial Judge
painstakingly reviewed all the evidence adduced at the trial-
He also
carefully assessed the merits and demerits of the witnesses who
testified for the State and the defence. The trial Court
had the
advantage of seeing and hearing the witnesses when they testified.
The learned trial Judge commented as follows on the
appellant (Vol 7
p739-740)
:
"Accused
No 1 was clearly an intelligent and reasonably articulate person. His
articulation, however, in the witness box had
about it, in very many
instances, a certain suggestion of glibness. He was
at times
confident, but at other times when he found himself in difficulty in
explaining his action or certain events, that confidence
gave way to
an appearance of unease and discomfort, and this in turn led him on
occasions to become more than a little evasive.
His final impression
on us was a most unfavourable one. He was, as Miss
Thomas
who appeared on behalf of the State has submitted, a particularly bad
witness. He was, however, clearly a person with a great deal
of
agility of thought; a person who is quick-witted, able to think quite
well and quite quickly on his feet, and a person with
a ready answer
to most things. When one examines the contents of his evidence, and I
shall at the moment confine myself to matters
of general import, one
finds aspects of his evidence which are not only unsatisfactory but
patently false. . One also finds aspects
of his evidence, (and this
is something again which I shall discuss more fully later), where
accused No 1 has, from time to time,
deliberately, what I might call,
'tailored' his evidence to fit the facts as they were known to him,
or as they were suspected
by him at any given time."
His
relevant commentary on accused no 2 and accused no 3 was the
following (Vol 7 p 746):
"Accused
No 2 is an uneducated person. He claims to be illiterate and that his
schooling went no further than standard four.
He is, without doubt,
an unintelligent person. He is, without doubt, a most inarticulate
person. He is also, without doubt, an
untruthful person. For example,
his evidence that he only participated in the assault on the deceased
because of threats to his
physical well-being made against him by
accused No 1, seems to us to be a lie. If this had been true one
would have expected him
to have made mention of it when he made his
statement to the police or at the Section 119 proceedings-or, at any
rate, well before
he first placed . so much emphasis upon it in the
witness box. At one stage his evidence became so bad that he was
asked whether
he had ever suffered a head injury and he replied to
this in the affirmative.
Accused
No 3 fared little better. Although better educated and perhaps a
little more intelligent than accused No 2, he likewise
gave the
appearance of being not only an unintelligent person but a most
unintelligent person, and of being not only an inarticulate
person
but a most inarticulate person. He too was not a good witness. He
too, more particularly when it came to evidence of, for
example, the
threats made against him, was undoubtedly not telling the truth."
The
only direct evidence which implicates the appellant in the murder is
the evidence of accused no 2 and accused no 3. The trial
Court was
fully conscious of, and paid due regard to, the cautionary rule
applicable to the acceptance of their evidence which
incriminated the
appellant
in the planning and perpetration of the murder.
A factor
which reduces the risk of accepting the incriminating evidence of
accused no 2 and accused no 3 against the appellant is
where the
latter has shown himself to be a lying witness. The trial Court then
proceeded, correctly in my view, to approach the
incriminating
evidence of accused no 2 and accused no 3 along the following lines
(Vol 7 p747-748):
"As
I have already said we find that all of the accused were not only bad
witnesses in the extreme but were also, in certain
respects, lying
witnesses. There is however, in our view, one important difference
between accused no 1 on the one hand and accused
2 and 3 on the other
hand- The difference is this. Most of the lies told by accused 2 and
3 were stupid lies told by stupid people.
The lies which were told by
accused No 1 however, were, in our view, the product of
a quick
and fertile mind, the product of a person who would say anything,
irrespective of its truth, in order to extricate himself
from any
difficulty in which he found himself, a product of a person who was
quick to adapt his evidence to deal with and counter
any new
difficulty, real or illusory, which might arise. Whereas, therefore,
we reject almost everything told to us by accused
No 1 , in the case
of accused 2 and 3 the same does not hold true, or at any rate not to
the same extent. The position, in short,
with regard to their
evidence, is that we are prepared to rely upon it but only, and I
stress only, where the evidence is not in
dispute, accords with the
probabilities, or is corroborated by other acceptable evidence."
The
trial Court then considered evidence of a circumstantial nature which
tended to a greater or lesser extent to corroborate the
evidence of
accused no 2 and
accused
no 3 after having satisfied itself that all the
proven
proven or acceptable facts were consistent with the guilt of the
appellant and that they also excluded any other reasonable
inference
to the contrary. The circumstantial evidence relied upon was found
mainly in the acceptable evidence of Lutchmee Govender
(mother of
accused no 3), D[…] I[…] ( a young boy who stayed with
his parents with whom the deceased also lived),
Urvassi Pillay,
Krishna Jayapragasen (brother of accused no 2), Selvanayagie Iyer
(widow of the deceased) and Devendra Pillay.
The latter was found by
the trial Court to be a most impressive witness and his evidence was
accepted without hesitation. He testified
that
at about
9 p.m. on 31 January 1984 he drove his van up
along
Bul-Bul Drive to the depot of his transport
business
situate on the summit of the hill. On his way
up he
noticed in his headlights a parked vehicle on his
right-hand
facing downwards in the direction of Klaarwater
Drive.
It was parked somewhere near the scene of the
murder.
He described the vehicle as a four-door new shaped
Mazda
323. He has knowledge of spray paint and described
its
colour as "burnt orange". The colour and shape of
the
vehicle was similar to the red colour and shape of
the
appellant's vehicle as shown on Exhibits "D
1
"
and "D
2"
He could
see the shadows of passengers inside the parked
vehicle.
On returning a few minutes later he noticed
the
vehicle was still parked at the same spot. A left-hand door was open
and someone of medium height wearing
an
overcoat was standing outside. He did not take notice
of the
vehicle's number plates. The learned trial Judge
correctly
stated the importance of this evidence in the
following
terms (Vol 7 p 760-761):
"What
is, however, important about his evidence is that both with regard to
the place where the Mazda was parked, as to the
time it was parked
there and as to the activities around that car, his evidence provides
very strong corroboration of the evidence
of accused 2 and 3 as to
what occurred at the most important time in the case, namely the time
when they say they killed the deceased."
I
may also add that his evidence that he went up and down
Bul-Bul
Drive is corroborative of the evidence of accused
no 2
that a white truck went up Bul-Bul drive and came
down
again while the appellant's vehicle was parked alongside
Bul-Bul
Drive (Vol 5 p 547,550). Accused no 3 testified
that
they were sitting in the appellant's vehicle when the
white
truck went up Bul-Bul Drive but he did not thereafter
see or
hear it again (Vol 6 p 664, Vol 7 p 686).
The
trial Court also considered the question :
"-
- - why should accused No 2 and accused No 3, who was
not only
accused No 1's first cousin but also, so it would
seem, on
very cordial terms with him, both implicate
accused
No 1 as the person behind the killing and as the
person
who instigated the killing?" (Vol 7 p 761).
After
scrutinising the probabilities the trial Court came
to the
conclusion that "-
.-
-
we regard it as improbable'
in the
extreme that accused 2 and 3 would have implicated
accused
No 1 in the manner in which they implicated him
unless
it were true" (Vol 7 p 762).
The
trial Court, correctly in my opinion, dealt with
the
evidence of Jagatheesan Adessan Naidoo (also known
as Kay)
and Nithianandhan Govender (also known as Ronny)
who
testified in support of the appellant's alibi as
follows
(Vol 7 p 744):
"Accused
No 1 also called on his behalf K Naidoo and Ronny Govender with a
view to establishing his alibi and more particularly
his movements
between about 7,00 pm and 8,30 pm or 8,45 pm on the fateful night,
that is to say the night of the 31st of January
1984. Both k Naidoo
and Ronny Govender gave their evidence-in-chief reasonably well, but
both deteriorated drastically and completely
in the course of
cross-examination. Counsel for accused No 1 was constrained to
concede in argument that certainly K Naidoo was
a most unsatisfactory
witness and he made little attempt to suggest that Ronny Govender's
evidence perhaps was not quite as bad
as K Naidoo's. No good purpose,
I think, can be served by trying to determine which of K Naidoo or
Ronny Govender was the worst
witness. It is a task which is utterly
futile. What is clear, and a reading of the evidence of these two
witnesses will establish
this quite clearly, is that both were not
only unsatisfactory witnesses but gave every, appearance of being
lying witnesses."
On
appeal before this Court appellant's
counsel
contended that the Court
a
quo
erred in accepting
the
evidence of some of the witnesses who testified on
behalf
of the State. I have given careful consideration
to
counsel's contentions, but I do not consider his
criticisms
of sufficient impact to find that the Court ,
a quo
erred in
accepting their evidence and rejecting
that of
the witnesses who testified on appellant's behalf
I can
find no misdirection on fact by the Court a quo.
Nor am I
convinced that it is wrong in its finding on the
acceptable
evidence as a whole that the version given by
accused
no 2 and accused no 3 as to the actual killing
of the
deceased and the appellant's involvement in that
killing,
is substantially true and that the evidence of
the
appellant's wife to the extent that it is inconsistent with those
findings, falls to be rejected.
As a
consequence of the rejection of the appellant's
version
it follows that the presence of the two small blood
stains
in the back of the appellant's Mazda lends credence
to the
version of accused no 2 and accused no 3.
As
regards extenuating circumstances the appellant's
counsel
submitted that because accused no 3 was the sole
beneficiary
in the policy issued for the insured sum of
R75
000-00 the appellant was not motivated by greed or
gain. I
can find nothing on the record which substantiates
this
submission.
On
the contrary, the accepted evidence
is that
accused no 3 was never a party to the issue of
the
policy and that he was unaware of the fact that he
was
named beneficiary in the policy. The appellant
persisted
in falsely alleging in his evidence that
accused
no 3 was related to the deceased. Nor was the
appellant
able to furnish a satisfactory explanation why
the
policy was in his possession at the time of the
deceased's
death. There is nothing to suggest that the
trial
Court's finding of the absence of extenuating
circumstances
is vitiated by misdirection or irregularity
or is
one to which no reasonable court could have come.
It
follows that this Court cannot interfere with the
trial
Court's finding of the absence of extenuating
circumstances.
In
regard to the fraud count the State was unable to prove that the
apparent signature of the deceased on the proposal form Exhibit
"F"
was not a genuine signature of the deceased, as appeared from the
evidence of Lieutenant Cloete, the handwriting
expert, who testified
on behalf of the State. On this count the State also relied upon
circumstantial evidence and the inherent
probabilities of the case.
According to Selvanayagie Iyer, the widow of the deceased, she knew
only of the one insurance policy
in which she was
the
beneficiary. Although she had no clear idea of
the
deceased's financial position, she claimed that
she and
the deceased did not pay its premiums because they could not afford
to do so. According to the witness
Gobind
Mahabir who worked with the deceased at Frametex
the
deceased was an irregular worker. It is quite apparent
from
their evidence that the deceased was not a man of
means.
It was not disputed that all payments into the
transmission
account were made by the appellant who was
at all
times in a position to ascertain whether the premiums
on the
two policies were up to date or not. It is also
significant
that the appellant handed over to the deceased
the
policy in which the wife of the deceased was named the beneficiary.
As I have already stated, the appellant was unable to furnish
a
satisfactory explanation why he retained possession of the policy in
which accused no 3 was named the beneficiary. The trial
Court
accepted the evidence of the widow of the deceased and of the mother
of accused no 3 that the latter was in no way related
to the
deceased. In my judgment the trial Court correctly came to the
following conclusion (Vol 7 p 755):
"We
are satisfied, therefore, that all the proved facts are consistent
with a fraud having been committed and that no other
reasonable
inference can be drawn from the facts. Likewise we are satisfied that
all the proved facts are consistent with accused
No 1 having
committed that fraud and are inconsistent with any other reasonable
inference to the contrary."
The
main thrust of the argument of the appellant's counsel in this Court
was that the joinder of the appellant and his two co-accused
was
irregular in terms either of section 155 or
section 156
of the
Criminal Procedure Act 51 of 1977
. According to his argument either
all the accused, including the appellant, should have been charged
jointly with murder only or
the appellant alone should
have
been charged with murder and fraud as separate counts.
This
argument was raised for the first time when the appellant applied for
leave to appeal to this Court.
At no
stage during the course of the trial was it alleged
on
behalf of the appellant that there was such a misjoinder. No
application was made on his behalf or on
behalf
of accused no 2 and accused no 3 for a separation
of
trials in terms of
section 157(2)
of the
Criminal
Procedure
Act 51 of 1977
. Nor was application made on
behalf
of the appellant for an order in terms of section
81(2)(a)
of the said Act that he be tried separately in
respect
of the fraud charge. In the circumstances of the
present
case I do not consider it necessary to pronounce on
the
soundness or otherwise of this legal argument concerning the alleged
misjoinder for the following reasons:
1.
even
if there was a misjoinder as alleged no prejudice' has been shown to
have resulted therefrom. Nor does it appear that a failure
of justice
has in fact resulted from such alleged misjoinder or irregularity as
to render
section 322(1)
of the said Act applicable, and
2.
the
appellant's counsel, correctly in my judgment, conceded that had the
appellant been charged jointly with accused no 2 and accused
no 3
with murder only , evidence concerning the fraud would have been
admissible to establish a motive on the part of the appellant
for
the
perpetration of the murder.
In
the result the appeal against the
convictions
on both counts 1 and 2 is dismissed,
C.P.
JOUBERT JA.
VAN
HEERDEN JA
BOSHOFF
AJA
Concur.