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2024
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[2024] ZANCHC 24
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S v Baster (K/S29/2023) [2024] ZANCHC 24 (15 February 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
NORTHERN CAPE
DIVISION, KIMBERLEY
Case No:
K/S29/2023
Heard on:
13 – 14/02/2024
Delivered on:
15/02/2024
Reportable:
YES
/ NO
Circulate to Judges:
YES
/ NO
Circulate to
Magistrates:
YES / NO
Circulate to Regional
Magistrates: YES / NO
In the matter of:
THE
STATE
and
DAVID
FRANS
BASTER
ACCUSED
JUDGMENT
ON
CONVICTION
Tyuthuza AJ
INTRODUCTION
1.
The
accused stands accused of a charge of housebreaking with the intent
to kill and murder read with the provisions of section 51(1)
of the
Criminal Law Amendment Act
[1]
,
in that it is alleged that on 13 October 2021 and at Marydale, the
accused unlawfully and intentionally broke into and entered
the
residence of Petronella Jacobs without her permission, with the
intention to kill Elmarie Maria Van Wyk by stabbing her multiple
times with a knife.
2.
The accused pleaded guilty to the murder
and provided this Court with a statement in terms of
section 112(2)
of the
Criminal Procedure Act 51 of 1977
. The accused pleaded
not guilty to the housebreaking charge.
3.
Adv Engelbrecht, on behalf of the State,
indicated that the State does not accept the plea of guilty as
presented by the accused.
She indicated that the State’s
case would be that the accused’s intention was that of
dolus
directus.
4.
The postmortem report, the affidavit of Sergeant
Moqhoishi with the photo album and the statement in terms of
section
112
were accepted as exhibits “A”, “B” and
“C” respectively.
5.
The following admissions were made by the accused in terms of
section
220
of the CPA:
5.1.
That the identity of the deceased is Elmarie Maria van Wyk;
5.2.
That the postmortem report accepted as exhibit “A”
indicated the cause
of death to be bilateral haemopneumothorax;
5.3.
That the body of the deceased did not sustain any further injuries
until she reached
the mortuary;
5.4.
That the photo album accepted as exhibit “B” is a true
depiction of the
crime scene.
5.
Adv Engelbrecht and Mr Biyela for the
accused conceded that the only issues in dispute were the
housebreaking and the intent of
the accused in relation to the murder
of the deceased.
6.
The state bore the
onus
to prove beyond reasonable doubt that the accused had committed the
act of housebreaking with the intention to kill and murder
the
deceased.
7.
The
State led the evidence of one witness, Petronella Jacobs. Her
evidence is that on the evening of 13 October 2021, she
was at her
residence with the deceased Elmarie Van Wyk and a man called
Buddysheep. One of her children and one of the deceased’s
children were sleeping on the floor in front of the bed.
Petronella sent Buddysheep to buy some cigarettes with the R10.00
she
had given him. The deceased was in the process of undressing,
whilst she was sitting on the bed breastfeeding her baby.
According
to her the accused kicked open the door to her house. Her bed
was close to the door and when she turned her
head, she saw that it
was the accused. She testified that the accused entered into
her home with a knife in his hand and
stormed towards the deceased.
The accused continuously stabbed the deceased. She told
the accused that fighting would
not solve anything and that they
should communicate instead. She testified that the accused
turned towards her and told her
to keep quiet because she was also
involved. He then turned back to the deceased and continued to
stab her. When he
stopped stabbing the deceased, he asked the
witness where Buddysheep is and ran out of the house. According
to her she did
not see the accused again that evening.
8.
She
further testified that she asked her neighbor Clarina to take the
three children from the house. She called another neighbor,
Sisika, to come and see that the deceased was not responding to her.
Sisika also tried to get a response from the deceased,
but there was
none. She then requested Sisika to call the police, who arrived
at the scene.
9.
She
testified that the accused had damaged her door when he had kicked it
open.
10.
Under
cross-examination, she testified that the accused and the deceased
were involved in a relationship but that the deceased would
stay with
her during the seasonal work period. She testified that the
deceased had informed her mother that she would be
staying with her.
She further testified that the accused did not visit the
deceased during the period when she was living
with her, as the
deceased had informed her that she was no longer interested in the
accused. She testified that she had accompanied
the deceased to
the police station earlier that evening to report the accused to the
police to warn him to keep away from the deceased
and that she also
advised that she did not want the accused at her residence. She
testified that Buddysheep returned from
the shop whilst the accused
was still there stabbing the deceased but that she had gestured to
him to go away. She disputes
that Buddysheep was outside the
house with the accused and had opened the door to him to allow the
accused into her house. She
testified that she informed the
police about the damage to her door. She reiterated that the
accused had the knife in his
hand when he entered the house.
11.
The
state closed its case.
12.
The
accused, Mr Baster elected not to testify and closed his case without
calling any witnesses to testify.
Analysis of evidence
13.
The
fundamental principle of our law in criminal trials is that the
burden of proof rests on the prosecution to prove the accused’s
guilt beyond a reasonable doubt. This burden will rest on the
prosecution throughout the trial. The State must also
discharge
an evidential burden by establishing a
prima
facie
case
against the accused. Once a
prima
facie
case
is established, the evidential burden will shift to the accused to
adduce evidence to escape conviction. However, even
if the
accused does not adduce evidence, he will not be convicted if the
Court is satisfied that the prosecution has not proved
guilt beyond a
reasonable doubt.
[2]
14.
It is not in dispute that the deceased was
stabbed numerous times by the accused and that the deceased’s
injuries were the
cause of her death. Most of the facts are
common cause. The only issue the State needed to prove is
whether the accused
had indeed committed the act of housebreaking and
further to prove the form of intent when he killed the deceased.
15.
The State alleges that the accused’s
act was premediated.
16.
According to the accused’s written
statement, he, whilst approaching the house of Petronella Jacobs, met
a gentleman by the
name of “Sheepdog”, whom he had heard
was involved in a relationship with the deceased. He states
that he asked
Sheepdog about the deceased and Sheepdog simply opened
the door to Petronella’s shack house. According to the
accused
he “was overwhelmed with anger” thinking about
the rumor and just “lost it”, took out a knife which he
had with him and stabbed the deceased a number of times on her body
(dolus eventualis),
whilst the state submits that the murder was premediated
alternatively that there was
dolus
directus.
17.
It is common cause that the accused went to
the house of Ms Jacobs, with the knife in his possession, which he
used stab her numerous
times. A knife which the accused alleges
in his statement he always carried on his person in order to defend
himself.
18.
Adv Engelbrecht submitted that the evidence
of Ms Jacobs in regard to the housebreaking can be relied upon, in
that she was in a
position to make an observation of how and when the
accused had entered the house. Furthermore, that she had
reported the
damage to the police but that she has no control over
the work of the police and that the manner wherein she gave evidence
does
not speak to a person who would fabricate evidence. Ms
Jacobs had also informed the police that she did not want the accused
at her home.
19.
The State submits that the Court can draw
the inference that the accused had gone to the residence of Ms Jacobs
with the purpose
of murdering the deceased in that he had had the
knife in his hand when he entered the house. It is the State’s
case
that the accused had the premediated intention to murder the
deceased.
20.
The State further submitted that should the
Court not find that the murder was premeditated in terms of
section
51(1)
on the basis of the wounds inflicted and the fact that the
accused had stabbed the deceased numerous times, it is alleged by Ms
Jacobs that he had stopped to interact with her and thereafter
resumed with stabbing the deceased, is indicative that the accused
had the direct intent to murder the deceased.
21.
Mr Biyela on behalf of the accused,
submitted that Ms Jacobs had sent Buddysheep to the shop and was thus
not able to tell whether
the accused had met him at the door and had
in actual fact opened the door for the accused. Buddysheep was
not called to
testify.
22.
He furthermore submitted that there was no
evidence before the Court regarding the damage to the door and no
corroboration therefor.
23.
Mr Biyela submitted that the two points
of dispute have not been disproved by Ms Jacobs and that the
accused’s version is
probably true and should be accepted in
that the accused had met Buddysheep outside Ms Jacobs’s home,
that Buddysheep had
opened the door for him to enter the house and
that he had stabbed the deceased out of anger and as such did not
have the direct
intent to kill her.
24.
The accused is charged with housebreaking
with the intent to kill and murder. The evidence clearly
established that the accused’s
intention was to murder the
deceased. The accused went to the home of Petronella Jacobs,
where the deceased was staying,
with a knife in his possession and
upon arrival there he did not have any discussion with the deceased
to at the very least enquire
about the alleged relationship or the
rumors. The accused did not have any altercation with the
deceased or the man he suspected
her of having an affair with. In
my view the accused had the direct intention to murder the deceased.
25.
In
S
v Sauls and Others
[3]
it
was stated:
“
There
is no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of a single witness. The
trial Judge
will weigh his evidence, will consider its merits and demerits and
having done so, will decide whether it is trustworthy
and whether,
despite the fact that there are shortcomings or defects or
contradictions in the testimony, he is satisfied that the
truth has
been told”.
26.
I am of
the view that Ms Jacobs who witnessed the events gave a detailed and
clear account of the events and that her version was
truthful.
27.
As alluded to above, the elements of the
crime of the offence of murder are not in dispute. What is in
dispute is whether
there was intent
dolus
eventualis
or
dolus
directus
.
28.
“…
.Premeditation
refers to something done deliberate after rationally considering the
timing or method of so doing, calculated to
increase the likelihood
of success, while planning refers to “a method of acting,
doing, proceeding or making - which is
developed in advance as a
process, calculated to optimally achieve a goal”
[4]
29.
It has been
established by our courts that to
prove premeditation where there is
evidence or proven facts, the State must lead evidence to establish
the period of time between
the accused forming the intent to murder
the deceased, and the carrying out of his intention.
30.
In my view, the State failed to prove
pre-mediation. There is no evidence that the accused had
planned to end the life of
the deceased or that the accused had the
knife with him to specifically kill the deceased on the day and it
was not disputed that
the accused had, at all times, carried a knife
which he used to defend himself.
31.
An evaluation of the evidence does not
support the suggestion that the accused acted with premeditation to
murder the deceased.
32.
I find that the accused had the direct
intent to kill the deceased. The
indisputable
evidence before court
is as
follows:
32.1
The accused unlawfully entered the house of Petronella Jacobs,
32.2.
The accused had a knife in his possession;
32.3.
The accused stabbed the deceased multiple times;
32.4
The deceased died as a result of the actions of the accused.
32.5
The accused was fully conscious of his actions when killing the
deceased.
33.
I am of the view that the accused’s
intent was that of
dolus directus
in
that he had the direct intention to kill the deceased.
The
accused continuously stabbed the deceased and even when he did stop
to speak to Ms Jacobs, he resumed stabbing the deceased.
After
committing this act, the accused ran to his mother’s house and
there is no account that the accused had called either
the police or
an ambulance.
34.
In the premises, I made the following
order:
(a)
The accused is found guilty of
housebreaking with the intent to commit an offence unknown to the
State read with the provisions
of
section 262
of the CPA;
(b)
The accused is found guilty of murder
read with the provisions of section 51(2) of the Criminal Law
Amendment Act, Act 105 of 1997
with the intent form of
dolus
directus
.
T
TYUTHUZA
ACTING JUDGE
APPEARANCES:
On
behalf of the State:
Adv
M Engelbrecht
On
behalf of the Accused:
Adv
Biyela
[1]
Act
105 of 1997
[2]
Principles
of Evidence, PJ Schwikkard et al, 4
th
Edition,
2015
[3]
1981
(3) SA 172 (A)
[4]
Taunyane
v
The State
case number A140/2015, South Gauteng Division (28 September 2016) at
para 27