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[2014] ZAWCHC 147
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Ssengendo v S (A564/13) [2014] ZAWCHC 147 (22 September 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NO: A564/13
DATE:
22 SEPTEMBER 2014
In
the matter between:
STELLA
JOSEPHINE BAGENDA SSENGENDO
..............................
Appellant
And
THE
STATE
....................................................................................
Respondent
JUDGMENT
DELIVERED ON 22 SEPTEMBER 2014
DOLAMO, J
[1]
The appellant was convicted by Allie J (sitting with an assessor) on
one charge of theft and one of accessory after the fact
to murder.
She was sentenced to five (5) years on the theft conviction and seven
(7) years on the accessory after the fact charge.
She was granted
leave to appeal to the full court of this division against both
conviction and sentence. She is pursuing this appeal
before this
court.
[2]
The appellant, as accused no 3, stood trial
in the court
a quo
together with her siblings. These were her brother, who was accused
1, and her sister, who was accused 2. (I shall continue to
refer to
appellant’s co-accused in the Court
a
quo
as accused 1 and 2 respectively)
They were all from Uganda. The accused were charged with robbery with
aggravating circumstances
of a Mazda motor vehicle (“the
Mazda”) belonging to the deceased in the murder charge.
[3]
The deceased was of Danish origin and was
married to accused 2. They married in March 2001. They lived
together as husband
and wife and their minor children at 46 Chapman
Avenue, Gordon’s Bay in the Western Cape. After acquisition of
this immovable
property deceased made improvements thereto, including
building a flat-let. When appellant came to South Africa in
2000 she
went and joined her sister, accused 2, where she was
allowed to live in the flat-let. She continued to occupy the flat-let
with her son, who was born in South Africa. In return appellant did
domestic chores in the main house for the deceased and accused
2. She
accordingly had unrestricted access to the main house. Accused 1, on
the other hand, had his own place of residence in Woodstock,
Cape
Town. He too did odd maintenance jobs for the deceased and as such
was a frequent visitor at no 46 Chapman Avenue, though
at times he
gained illegal access to the main house by forcing open a sliding
door.
[4]
I
n the trial the
evidence led by the State painted a picture of conniving and deceit
by the accused after the brutal slaying of the
deceased. This started
on the 15 January 2008 when accused 2 reported to the South African
Police Service (“SAPS”)
that the deceased was missing
since the 14 January 2008. She alleged that the deceased left on
the morning of the 14 January
2008 in his Mazda to play golf at
the local golf course and never returned home, which was unusual. She
also alerted deceased’s
family in Denmark about the deceased’s
alleged disappearance. As a result members of the deceased’s
family flew from
Denmark to South Africa, arriving on the Thursday 17
January 2008.
[5]
A meeting was held on the 18 January 2008
at the deceased’s home with accused 2 deceased’s Danish
family and the SAPS,
led by Greeff the investigating officer in the
matter in attendance. As a result of accused 2’s conduct in the
meeting deceased’s
family suspected foul play, with accused 2
being their prime suspect. As a result the family of the deceased
later met alone with
the investigating officer, where they
articulated their suspicions. These suspicions were triggered,
inter
alia
, by accused 2’s
nonchalant attitude when deceased’s family raised concerns
about their safety in the house since
it was alleged that deceased’s
keys were not accounted for, and that the house was
uncharacteristically clean, especially
the garage, with the interior
of the house appearing to have been recently painted.
[6]
Sensing foul play the SAPS started
investigating in earnest, with deceased’s home being the focal
point. The search in the
house, together with meticulous
investigation, produced evidence which revealed,
inter
alia,
that on the 14 January 2008,
at approximately 08h45, appellant went to a shop where she regularly
purchased a multi-purpose
cleaning gel (“gel”) which
removes stains, including blood stains, looking for this product;
that this particular shop
did not have the gel in stock; that this
appeared to upset the appellant; that appellant also seemed
nervous; that appellant
was referred to another shop in the complex
which had the product in stock and where she bought 500ml of the gel;
that appellant
thereafter left in an orange coloured Jeep 4X4 motor
vehicle driven by accused 2; that at about 17h00 on the same day
appellant,
together with accused 1 and 2, went to a carpet shop where
they purchased a carpet and insisted that it be fitted the same
day but were eventually persuaded to settle for an arrangement that
it be fitted the following day, Tuesday 15 January 2008; that
the
workmen who went to fit the carpet on the Tuesday detected a smell of
fresh paint in the room where the carpet was to be fitted
and noticed
that gripper strips, which allow for the carpet to be stretched
properly, were attached to the perimeter of the room
to which the
carpet was to be fixed and were visible, which indicated that a
carpet had recently been stripped from the floor
in that room.
[7]
The SAPS also launched a comprehensive
forensic investigation of the deceased’s residence.
Observations and findings at the
scene were recorded, photographed
and, where applicable, collected for forensic analysis. Dogs which
were specifically trained
to detect biological body fluids were also
used in the investigation. The search of the deceased’s
premises yielded a wealth
of forensic material. In the course of
investigation “
Amidu Black”
,
a chemical used to detect the presence of blood, was applied to
various parts in the house. The result was an indication of the
presence of blood in the garage, deceased’s bedroom, on the
stairs leading from the kitchen to the garage and in the flat-let
which was occupied by the appellant. These blood stains were of two
kinds: smear marks and impact marks. A smear mark would be
created
when a bloody object came into contact with a surface while an impact
splatter would be the result of force being applied
to a bloody
surface. Accused 1’s blood splatter was found in the deceased’s
bedroom as well as in the flat-let. The
other blood marks in the
flat-let, however, did not have sufficient ridge characteristics for
positive identification.
[8]
Accused 2 and appellant were asked by the
SAPS to participate to eliminate them as suspects regarding the
bloody footprint which
was on the stairs. Though their footprints did
not match that print, the possibility could not be excluded that this
footprint
was of a person related to them, as it displayed certain
characteristics common to their prints. Attention was as a
result
turned to accused 1 as a suspect in the disappearance of the
deceased. Accused 2 and appellant were thereafter asked to help
the police to lure accused 1 to Gordon’s Bay, where on arrival,
was arrested. After his arrest, accused 1 admitted to killing
the
deceased but gave an exculpatory version. On reviewing the available
evidence, particularly signs of tampering with deceased’s
bedroom, the SAPS decided to arrest accused 2 and appellant as well.
[9]
Accused 1’s version was that on the
Sunday of the 13 January 2008, he was out drinking with his friend
Frank and, past midnight,
went to deceased’s place in Gordon’s
Bay. He and Frank climbed over the boundary wall to gain entry onto
the property.
Once inside the yard they sat in the garden and
continued to smoke tik and drink alcohol. Later they moved from the
garden and
went to sit inside a car which was parked in the garage.
Appellant alleged that he later heard the sound of a television
coming
from the house and, on investigation, found the deceased in
the kitchen making coffee. After a conversation with the deceased
about
the renovation work, which accused 1 was doing for deceased,
returned to the garage where he continued smoking tik with his
friend.
Deceased later came to the garage and became angry when he
realised that they were smoking tik. This led to a scuffle, with the
deceased grabbing the knife which was on accused 1’s waist and
stabbing the latter therewith on his left arm. Accused
1
alleged that the next thing he could remember was that he was on the
floor holding the knife in his hand with the deceased next
to him.
There was blood all over.
[10]
On realizing
that the deceased was dead he panicked and decided to get rid of the
body. He then went into the house and proceed
to the deceased’s
bedroom. He took therefrom a bedcover and, from the cupboard touching
the bottom of the door to avoid smearing
his blood thereon, took out
some cloth and went back to the garage. Accused 1 started to
clean the traces of blood through
the garage and all the way into the
house.
[11]
After wrapping
the deceased’s body with the cloth material and plastic he
placed it in the boot of the Mazda. He changed into
fresh clothes and
put the blood stained ones in the boot of the Mazda as well.
Appellant thereafter drove out of the premises and
went to park the
Mazda at a shopping centre and returned with his friend to the
flat-let where he fetched his friend’s
jumper. Accused 1 found
appellant still in bed and asked her for a plaster to cover his
wound. He told her that he was injured
while working. He also asked
her for money which was ostensibly meant to purchase a carpet and
skirting’s for the renovation
he was doing on the premises.
Appellant refused to give him the money but agreed to pay it directly
to the shop for the carpet.
[12]
According to
accused 1’s version he later, on the same Monday of the 14
January 2008, went with appellant to the carpet shop
where they
purchased a carpet. He could not succeed with his plans to cancel the
sale and to get a refund of the money paid. He
and appellant later
that day joined accused 2 at the beach where the latter was with her
children. Accused 1 and appellant later
left accused 2. Accused 1
went to fetch the Mazda from the shopping mall and drove to Woodstock
where he resided. He had the keys
to this vehicle which he had found
inside the vehicle where they were usually left.
[13]
Accused1 thereafter
sought the help of his friend to dispose of the deceased’s
body. He used pool acid and another product,
which he mixed, to
prevent decomposition and smells, and which he poured onto the body,
after piercing holes with a knife through
the plastic wrap. He drove
with his friend to a bushy area in Blouberg in Cape Town where they
dumped the body. Thereafter they
drove to Guguletu also in Cape Town,
where accused 1 abandoned the Mazda at a car wash. The following day
he called accused 2 and
3 and was told that deceased was missing. The
two were crying as they related the story to him. He was suspicious
when later in
the week accused 2 and 3 called him, speaking in
English, and informing him that the police came looking for him but
that everything
was in order. Accused 1 also testified that he had
intended to abandon the Madza where he had parked it at the carwash.
[14]
Deceased’s
body was found on 20 January 2008 with multiple stab wounds. A post
mortem report revealed that there were stab
wounds on the left
anterior aspect of the body including the neck. Three stab wounds
penetrated into the left chest cavity. There
was one superficial stab
wound track in the left upper lobe area of the lung. A further 8 stab
wounds were present in the neck
area. One penetrated the left
internal jugular vein; another stab wound was in the right temporal
area of the head and another
incised wound in the right ear lobe. No
skull fractures were found, though tramline abrasions on the vertex
of the head were detected.
Those were usually caused by something
with a linear shape. There were blunt trauma signs to the neck with a
fracture to the left
posterior horn of the thyroid cartilage and
hyoid bone. A ligature was loosely tied around deceased’s neck
which was usually
associated with strangulation.
[15]
According to the
post-mortem report the neck fracture of the cervical spinal column
were injuries that occurred while the deceased
was still alive.
Multiple skin lesions were caused by post morbid burns. The neck was
broken between the 5
th
and 6
th
vertebrae. Due to this and decomposition, skin loss had occurred and
which did not assist in interpreting the cause of the neck
injury.
The clothing was extensively burned. Parts of the left lung and
oesophagus showed changes consistent with burning.
Numerous sharp
trauma injuries were also found, especially to the left side of the
chest and to the neck. Of these, 48 were stab
wounds were sustained
during life. One entered the lung and another entered a major blood
vessel. These were fatal.
[16]
Despite these
injuries, there was a marked lack of defence wounds. There was a
small incised bruising on one of the arms at the
back of the wrist.
Some kind of burning occurred to the body which charred clothing and
parts of the skin and cooked the content
of the upper airways. In the
post mortem report under the heading “
appearance
”,
it was stated that the body was wrapped in a duvet and ligatures were
tied around the legs and arms. The skin showed advanced
decomposition
including mummification i.e. drying out. There was, however, a marked
lack of large maggots with only small ones
buzzing around, indicating
that the body was hidden where flies only discovered the body at a
late stage. The conclusion was that
multiple stab wounds, signs of
strangulation and neck injury caused death.
[17]
Appellant also
testified in her own defence. Her version was that she lived in the
flat-let and served as a caretaker of deceased’s
property for
which deceased paid her R1000.00 per month; that accused 1, in the
cause of carrying out renovations to the house
on the instructions of
the deceased, had painted most of the interior walls except the
deceased’s bedroom, garage, living-room
and laundry. This was
during the week of the 7 January 2008: i.e about a week before the
deceased was killed; that because of dampness
in the house deceased’s
bedroom required urgent attention and that as a result accused 1 had
removed the carpet and underfelt
from this room. According to
appellant, accused 1 was often found in the house though she never
bothered to establish how he had
gained entry.
[18]
Appellant
further testified that on the morning of the 14 January 2008 accused
1 came to knock on the door of her flat-let and asked
for a plaster
to cover a wound on his left arm which was bleeding; that accused 1
told her that he was injured while removing the
carpet in deceased’s
bedroom: that accused 1, after taking the plaster from where she
pointed it out to him, left her flat-let;
that when, approximately 45
minutes later after accused no 1 had left, she went to the main
house, found the kitchen sliding door
open; that this was not unusual
as deceased was in the habit of leaving it open in the morning, after
standing in the doorway taking
in the view; that she found that
accused 2 was still in bed with her children playing on her bed;
that, as she had arranged with
accused 1 to purchase a carpet
that day, she called him on his cell phone when she did not find him
in the house; and that
together with accused 1 later went to purchase
the carpet.
[19]
According to
appellant she did not find deceased in his bedroom when she went into
the main house; that she locked deceased’s
bedroom and left the
key in a cupboard as she feared that the children may be injured by
the sharp nails which were exposed after
the carpet was removed, the
bed lifted and left standing on its side; that she closed the gate
which was left half open and
which she assumed was left open by the
deceased when he left that morning; that she later left accused 2
with the children at Wimpy
in Strand when she went to meet accused 1;
that together with accused 1 went to the carpet shop where they
purchased a carpet,
paying a deposit of R1300.00; and that she kept
the receipt as she wanted to claim back the money from the deceased.
According
to appellant after the purchase of the carpet she and
accused 1 went back to join accused 2. She alleged to have thereafter
gone
back to the shop to arrange the time as to when the workmen
would come to fit the carpet and that an agreement had already been
reached that this would be on the Tuesday.
[20]
Appellant
alleged further that she and accused 2 phoned around to try and
establish deceased’s whereabouts when they realised
that he had
not returned home from playing golf, and that she stayed in the main
house with accused 2 until at approximately 01h00.
Appellant also
alleged that she stayed home on the 15
th
January waiting for the handymen, who were to come and fit the
carpet; that accused 2 left in search of the deceased and returned
at
about 11h00, after reporting the deceased as missing to the police.
She went on to allege that deceased, contrary to what his
Danish
family had testified, never carried with him any house keys or remote
controls and relied on accused 2 to open for him.
Appellant
unexpectedly, as this version was never put to state witnesses,
alleged that she had shown the SAPS around the
house and
particularly where the dampness was clearly visible; and that on
Wednesday 17
January
2008 she and accused 2 cleaned the house with the gel in preparation
for the arrival, the following day, of deceased’s
Danish
family.
[21]
The learned
trial Judge held that for accused 1 to succeed with his version that
he killed the deceased without the knowledge of
accused 2 and the
appellant he had to provide an explanation of how he gained entry
into the house. In this respect the Learned
trial Judge found that
the explanation given by accused 1 was “
elaborate
but wholly unexplained and unconvincing account”
of how he had opened a sliding door from the outside. Accused 1’s
version was rejected as false. That left the door open
to
consider the involvement of accused 2 and the appellant in the
robbery with aggravating circumstances and deceased’s murder.
[22]
The Learned
trial Judge went further and held that on the evidence on record the
State had proved that accused 1 used the deceased’s
Mazda to
transport the body and eventually dispose of it but had not proved
that accused 1 killed the deceased in order to steal
the Mazda and
consequently that robbery had not been proved. The Learned trial
Judge was, however, satisfied that the evidence,
in particular
accused 1’s act of abandoning the vehicle in Guguletu, proved
theft in that he had no intention of returning
the vehicle to the
heirs of the deceased. As theft was a competent verdict of robbery
with aggravating circumstances accused 1
was accordingly convicted of
theft.
[23]
In
convicting accused 2 and the appellant of theft, the learned trial
Judge held that
[1]
:
“
[255]
Since all three accused assisted one another in staging circumstances
that could lead the police to believe that the deceased
was abducted
while travelling to or from gold, that stealing of the Mazda vehicle
of the deceased was an integral part of their
plan to conceal the
true circumstances in which the deceased was killed.”
and
at 258-259 that:
“
[258]
Snyman, in discussing why South African law does not recognise
accessories after the fact in theft explains at pages 509-510
that
since theft is a offence, there can be no perpetrator who assists the
original thief after theft has been completed. [see:
S v Morgan &
others 1993(2) SACR 134(A)]
[259]
In this case, Accused 1 admitted that he abandoned the car with the
intention of not returning it to the deceased or his heirs.
While the
car remained under control of accused 1 and later was abandoned,
accused 2 and 3 led the police and the Danish son and
daughter of the
deceased to believe that they had no way of establishing where the
car was nor where the deceased was. They are
accordingly guilty of
theft of the Mazda motor vehicle that belonged to the deceased.
”
[24]
On the murder charge the trial Judge found that the State did not
prove beyond reasonable doubt that accused 2 and appellant
were
present when the fatal blows were dealt to the deceased but had
proved, beyond reasonable doubt, that they assisted
in concealing the
fact that the deceased was murdered by accused 1 in his home. With
reference to the role played by appellant
the trial Judge found that
“
Accused
3 clearly took it upon herself to cover the tracks of accused 1 and
to distance accused 2 from any knowledge of the murder”
[2]
.
[25]
Appellant’s
conviction, on the competent verdicts of theft and accessary after
the fact to murder, was attacked on the basis
that the Learned trial
Judge erred in finding that the State had proved beyond a reasonable
doubt that the appellant stole the
Mazda in that there was no
evidence of any physical involvement by the appellant in the removal
and disposal of the vehicle; that
the circumstances in which the
removal and disposal of the vehicle took place which were described
in accused 1’s evidence,
were linked to the murder of the
deceased; and that the trial court erred in making a finding that
since the accused assisted one
another in staging circumstances which
could lead the police to believe that the deceased was abducted while
travelling to or from
playing golf, the stealing of the Mazda was an
integral part of the plan to conceal the true circumstances in which
the deceased
was killed and, since theft was a continuing crime and
the appellant led the police and family of the deceased to believe
that
they had no way of establishing where the car or the deceased
were, appellant was guilty of the theft of the Mazda.
[26]
As regards
appellant’s conviction as an accessory after the fact to the
murder it was submitted that there was no evidence
that appellant
intentionally staged any circumstances to mislead anyone. Secondly
that there was no evidence of a prior arrangement
involving the
appellant to stage these circumstances in order to mislead the police
or anyone else.
[27]
It
is trite law that theft is a continuing offence and that a person who
becomes an accessory thereafter by assisting the thief
to escape is a
socius
criminis
and as such is guilty of theft.
[3]
What is meant by theft being a continuous crime is succinctly set out
in LAWSA
[4]
“
Theft
is a delictum continuum as a continuing crime. This means that the
theft continues as long as the stolen property is in the
possession
of the thief or of some other person who was a party to the theft, or
even of some person acting on behalf of or even,
possibly, in the
interest of the original thief. The important effect of this doctrine
is that initially no differentiation is
made between the perpetrator
or socius criminis on the one hand, and an accessory after the fact
on the other. Any person, who
assists the original thief or, his or
her socius whilst the theft continues, is a thief. He or she cannot
be an accessory after
the fact, because the original theft has not
yet been completed. A further reason why such a person is regarded as
a thief is that
he or she also has the necessary intention
permanently to deprive the owner of property. Even if the assistance
which is given
to the original thief does not in itself amount to an
independent appropriation of the property (for example where it
merely consists
in rendering advice on how to dispose of the
property), he or she is nevertheless liable as an an has accessory to
the crime. Obviously
assistance or advice rendered before or during
the original appropriation makes a person a socius criminis to
theft.”
[28]
In my view the
above passage correctly reflects the law as to theft being a
delictum
continuum
. It follows that
in
casu
for appellant to have been
convicted of theft the State had had to adduce evidence which proved
that appellant was aware that accused 1
had appropriated the
Mazda with the intention to permanently deprive the heirs to the
deceased’s estate; had the intention
to associate herself
therewith and that, when she associated herself with the actions of
accused 1, the Mazda was still in the
latter’s possession.
[29]
The evidence
adduced by the State, in my view fell short of covering these two
essential requirements. There was no evidence that
clearly proved
that appellant was aware that accused 1 had appropriated the
Mazda or that she intended to associate herself
with his actions. In
other words, there was no evidence to prove that appellant was aware
that the Mazda was missing; that it was
missing because accused 1 had
appropriated it; and that he used it to convey deceased’s body.
[30]
Secondly,
there was no evidence to prove that when appellant embarked on the
process of cleaning the deceased’s house to remove
traces of
blood, assisted in the purchase of the carpet, and so forth, (i.e
associating herself, after the fact with the
deceased’s
murder) that the Mazda was still in the possession of accused 1. It
is not clear from the evidence whether appellant
was aware that the
Mazda was missing at all, from which an inference could be drawn that
she was aware that accused 1 had taken
it and had used it to convey
the deceased’s body. In my view in addition to there being no
evidence that appellant was aware
that accused 1 approached the Mazda
there was no evidence the she was aware that accused was still in
possession of the Mazda and
that she intended to associate herself
with such continued possession. In the absence of evidence to that
effect an inference cannot
be drawn that appellant was aware of the
theft of the Mazda by accused 1, associated herself therewith and, as
theft was a continuing
crime, that she herself was guilty of theft.
These shortcomings cannot be supplemented by the untruthful evidence
given by the
appellant.
[5]
In
the circumstances the State has failed to prove appellant’s
guilt on the theft charge. The appellant’s conviction
and
sentence on this charge ought to be set aside.
[31]
The next
question is whether the appellant was correctly convicted as an
accessory after the fact to the murder. In determining
whether
appellant’s guilt, on this charge, was proved beyond reasonable
doubt, the purchase by applicant of the gel; the
cleaning of the
deceased’s house, her involvement in the purchase of,
replacement of the carpet, the painting of deceased’s
bedroom,
the presence of blood in the house stairs, garage and the flat-let
are all factors to be considered.
[32]
Bastra, who
testified about appellant’s acquisition of the gel, was certain
that appellant purchased it on the 14 January
2008. Bastra was
cross-examined about her statement to the police in which she gave
the date of the 18
th
January 2008 as the date on which appellant came looking for the gel.
Her explanation was that the date which she mentioned to
the police
was the 14 January 2008 and that the error in recording the date as
the 18 January 2008, which was later corrected,
was that of the
police who took down her statement. Titus, another witness who
testified about appellant’s movements on the
14 January 2008,
was certain that appellant came to her shop on the 14 January 2008 at
approximately 08h45. She was certain about
the date because this was
the day on which her shop re-opened after the Christmas holidays.
[33]
Mr Klopper,
arguing for the acceptance of the appellant’s version as
reasonably possibly true as to entitle her to an
acquittal, submitted
that it should be borne in mind that the events which the witnesses
were testifying about occurred five years
prior to the trial and that
it was quite natural that witnesses, including the appellant, would
differ concerning certain aspects
and have difficulty recalling other
facts with accuracy. According to Klopper the amendment of the
original date in Bastra’s
statement, from 18 January 2008 to 14
January 2008, was indicative of this uncertainty regarding dates.
[34]
While
it is correct that with the passage of time witnesses tend to be
confused as to details, such as the exact date, this does
not appear
to be the case with Bastra. She was certain that appellant came
looking for the gel on the 14 January 2008 and
that the date of the
18 January 2008 was an error on the part of the police who recorded
her statement. In any event the mere fact
that it is evidence that
there were self-contradictions must be approached with caution
[6]
.
Furthermore police statements are notorious for their inaccuracies
and care must be taken not to lay the blame for such inaccuracies
at
the door of a deponent to a police statement when this differ with
the evidence given in court
[7]
.
The explanation by Bastra, in my view, removed any doubt regarding
the date on which appellant bought the gel. It can therefore
be
accepted as proved beyond reasonable doubt that appellant purchased
the gel on the 14 January 2008.
[35]
Secondly, Mr
Klopper argued that no inference of guilt can be drawn from the mere
purchase of the gel in the light of the fact that
appellant had in
the past purchased this product. According to Mr Klopper appellant
was the caretaker of deceased’s property
and responsible for
cleaning duties. There was therefore nothing improbable nor sinister
about the fact that she did some cleaning
prior to the arrival of the
Danish family, since the house was untidy and dirty, he argued. Mr
Klopper further submitted that there
was no evidence that the gel was
intentionally used to clean away any blood related to the death of
the deceased since no tests
were done at the places where there was
suspicion that cleaning had taken place to establish whether the gel
or some other substance
had been used.
[36]
The replacement
of the carpet, painting the house and the complicity of the appellant
therein was, according to Mr Klopper, not
indicative of her guilt as
an accessory after the fact on the murder charge. In this respect, Mr
Klopper submitted that the deceased
intended to place the house on
the market to take advantage of the 2010 Football World Cup which was
going to take place in South
Africa. Accordingly, it was submitted,
this was part of maintenance work to deal especially with defects
which required immediate
attention, such as the dampness and water
damage to the carpet in deceased’s room, to enhance the
prospects of getting a
good price.
[37]
Mr Klopper
argued also that there was no evidence that anything linked to the
murder of the deceased was the cause of the removal
and replacement
of the carpet since the totality of the evidence indicated that the
deceased was attacked in the garage area and
not in his bedroom. He
accordingly submitted that the trial court’s finding that the
removal of the carpet was related to
the death of the deceased was
mere conjecture and speculation.
[38]
In
assessing the probative value of the evidence of cleaning, carpet
replacement and painting, it must be borne in mind that the
State was
only required to prove its case beyond reasonable, not beyond any
shadow of doubt
[8]
. Each piece
of evidence, furthermore, should not be viewed in isolation but
placed on the evidentiary scale and accorded due weight
together with
other admissible evidence to determine whether the State had proved
its case beyond reasonable doubt.
[39]
The evidence was
that appellant first went to purchase the gel on 14 January 2008.
While there is nothing wrong with her purchasing
this product, the
evidence was that appellant was visibly upset when she did not find
it from her usual supplier. She had to be
comforted and directed to
another shop where she bought this item. It is evident that appellant
was desperate to acquire this product
and it was imperative to have
it that same day. The question is why was it so important to her
to have this specific product
on that day? Clearly she had an urgent
need for the product which was intended for immediate use.
[40]
Secondly,
appellant played a role in the purchase of the carpet and insisted
that the carpet be installed in the deceased’s
house that same
day. There was a dispute as to whether appellant was with accused 1
only or accused 2 when the carpet was purchased.
In my view it is not
necessary to resolve this aspect since, whoever was with appellant in
the shop, acted in consent with her.
Appellant whether with accused 1
or 2, had to be persuaded that it was only on the following day that
the carpet can be installed.
Appellant, and whoever was in her
company, had initially asked for a second-hand carpet and only
settled for the cheapest new one
when the shop informed them that it
did not have a second hand carpet in stock. Appellant, and whoever
was in her company, deliberately
gave the wrong address as the place
where the carpet was to be installed. Appellant and company,
according to Reinhardt Anthony
Isaacs who was employed at the carpet
shop, also gave a fictitious name (i.e. “Francis”) to
whom the invoice was made.
All these occurred on the Monday of the 14
January 2008, the day on which deceased was murdered in his house.
Again the question
to ask is why was appellant and company anxious to
have the carpet installed on the same day of its purchase given that,
on appellant’s
version, the old carpet in deceased’s
bedroom was removed a week before? Why did they give a false name and
false details
regarding the address where the carpet was to be
fitted?
[41]
On the Tuesday
of the 15 January 2008 appellant remained home waiting for the carpet
people. She alleged to have single-handedly
removed the furniture out
of the deceased’s bedroom before the carpet arrived; and that
she only locked the deceased’s
bedroom on the Monday of the 14
January 2008, according to her was to prevent the children from being
hurt by the exposed nails
after the removal of the carpet, which
occurred allegedly a week before. It is not clear from the
evidence whether the bedroom
had previously been locked, after the
removal of the carpet, for the alleged safety of the minor children.
The mere mention of
locking the bedroom in appellant’s
evidence, however, creates the impression that it was only locked for
the first time on
14 January 2008. If that is so, why was the bedroom
not locked on the previous occasions if the intention was to prevent
the children
from being injured by the exposed nails?
[42]
From the expert
evidence it is clear that the cleaning was specifically focused on
areas where blood was found to have earlier been
deposited. The
result of the use of the gel was to dilute the blood to such an
extent that some did not have sufficient ridge characteristics
for
positive DNA identification. It is evident that the intention with
the cleaning was to obliterate any traces of blood and the
gel was a
suitable medium for this purpose.
[43]
The argument by
Mr Klopper that the replacement of the carpet in the deceased’s
bedroom was not conclusively connected to
the murder of the deceased
since, on accused 1’s version, deceased was killed in the
garage, is without merit. On accused
1’s version he was
bleeding and obviously would have left traces of blood on the carpet
in the deceased’s bedroom when
he went to fetch the bed cloth
with which he wrapped the deceased’s body. It is for this
reason, in my view, that the carpet
had to be removed so that no
traces of blood, of whomsoever, were found in the house. Any traces
of blood, especially in the deceased’s
bedroom after he had
gone missing, would have called for an explanation and this was what
appellant and company wanted to avoid.
It does not matter whether it
was the deceased’s blood, accused’s blood or any other
person’s blood: the presence
of blood in the bedroom would have
been a dead giveaway. This had to be removed at all costs and
immediately.
[44]
In addition to
the removal of the carpet there was a smell of fresh paint in
the house. This was, according to the evidence
of Denver Miller the
handyman who was part of the crew that went to fit the new carpet in
deceased’s home, coming from the
deceased’s bedroom. The
contention by the appellant that the smell of paint emanated from
elsewhere in the house and was
not connected with the murder of the
deceased must be rejected in the light of the evidence of Miller who
was certain that this
was coming from the deceased’s bedroom
where the carpet was installed.
[45]
The State, in my
view, had proven beyond reasonable doubt that the activities of the
appellant referred to
supra
were aimed at concealing the fact the deceased was killed by accused
1 in his own home. I am satisfied therefore that, on a conspectus
of
all the evidence, appellant’s guilt as an accessory after the
fact to the murder had been proved beyond reasonable doubt
and
consequently her conviction as such cannot be disturbed.
[46]
I turn now to
deal with the appeal against sentence. Appellant was sentenced to 7
years imprisonment on her conviction as an accessory
after the fact
to the murder. It was submitted on behalf of the appellant that the
court
a
quo
over-emphasised the seriousness and the nature of the actual crime
committed by the appellant and attached insufficient weight
to her
personal circumstances; that the court
a
quo
erred in finding that the appellant
showed no remorse; that it overlooked the fact that appellant offered
assistance to the police
by identifying accused 1 and was
instrumental in his arrest. It was submitted, furthermore, that the
trial court erred by failing
to take into consideration the period of
5 years and one month which the appellant had spent in custody
awaiting the finalisation
of her trial.
[47]
It
is trite law that sentence is pre-eminently a matter for the
discretion of the trial court. A court of appeal may interfere with
the sentence imposed it the trial court materially misdirected itself
or where the sentence imposed is shockingly inappropriate.
The
misdirection contemplated in this context was described by Trollip JA
in
S
v Pillay
[9]
in the following terms:
“…
Now
the word “misdirection” in the present context simply
means an error committed by the court in determining or applying
the
facts for assessing the appropriate sentence. As the essential
inquiry in an appeal against sentence, however, is not whether
the
sentence was right or wrong but whether the Court in imposing it
exercised its discretion properly and judicially, a mere misdirection
is not by itself sufficient to entitle the Appeal Court to interfere
with the sentence; it must be of such a nature, degree or
seriousness
that it shows directly or intentionally, that the Court did not
exercise its discretion at all or exercised it improperly
or
unreasonably. Such a misdirection is usually and convincingly termed
one that vitiates the Court’s decision on sentence…”
[48]
The
discretion to impose sentence, as it is clear from the above passage,
must be exercised properly and judicially. The court must
take into
consideration all the relevant factors and circumstances, aggravating
and mitigating, and based thereon impose an appropriate
sentence. Over-emphasising of any of the relevant factors, in
certain circumstances, may amount to a misdirection. Similarly
a
failure to accord due weight to an important factor may also amount
to misdirection which may vitiate the exercise of the sentencing
discretion. It is always important to bear in mind, however, that a
failure to specifically mention a relevant factor does not
necessarily mean that it has been overlooked for no judgment can be
perfect and all embracing
[10]
.
[49]
I am not
persuaded that the Learned trial Judge had over-emphasized the
seriousness of the offence committed by the appellant at
the expense
of her personal circumstances. The Learned trial Judge dealt with all
the factors and circumstances which were placed
before court in
mitigation of sentence. There is merit in my view, however, in the
argument that the period appellant spend in
custody awaiting trial
should have been taken into consideration in determining an
appropriate sentence.
[50]
Does the failure
to take into consideration the period spent in custody awaiting trial
constitute a misdirection in the sense set
out in the Pillay
judgment;
(supra)
entitling
this court, on appeal, to interfere with the sentence imposed.
[51]
In practice the period an accused spent awaiting trial is usually
taken into consideration in the determination of an appropriate
sentence
[11]
. There is
however, no uniformity in how such a period is to be calculated as
well as the rationale for this approach
[12]
.
In
S
v Njikelana
[13]
the accused who faced the prospects of life imprisonment in terms of
Section 51(1)(a)(2)
of the
Criminal Law Amendment Act 105 of 1997
was
sentenced to 14 years imprisonment. In imposing this sentence Thring
J arrived at the conclusion that there were substantial
and
compelling circumstances which commutatively justified the sentence.
According to the Learned Judge these included,
inter
alia”,
the fact that “
you
have been in custody awaiting trial or sentence for 35 months. That
is a long time to have the prospect of life imprisonment
hanging over
one’s head. As I said, it was a unnecessarily long
a time.”
The learned Judge went further and held that:
“…
In
normal circumstances I would have imposed a sentence on you of 18
years’ imprisonment. That sentence would be in line with
the
sentences which were imposed in the cases of S v Swartz and Another
1999(2) SACR 380 (C),
S
v Jansen 1999(2) SACR 368 (C) and S v Dithotze 1999(2) SACR 314 (W).
However,
I am going to reduce that number of years by three, because that is
the approximate period during which you have been in
custody awaiting
trial and sentence
.
Furthermore I am going to reduce it by an additional year to make
allowance for the fact that, at least since your trial commenced
in
the regional court on 17 April 2000, you have had to endure the
mental anguish of the prospects of life imprisonment.
[14]
”
(own
emphasis)
[52]
In
S
v Vilakazi
[15]
Nugent JA held that
[16]
:
“
[60]
There is one further consideration that must be brought to account.
The appellant was arrested on the day the offence was committed
and
has been incarcerated ever since. At the time he was sentenced he had
accordingly been imprisoned for just over two years.
While good
reason might exist for denying bail to a person who is charged with a
serious crime it seems to me that if he or she
is not promptly
brought to trial it would be most unjust for the period of
imprisonment while awaiting trial is not then brought
to account in
any custodial sentence that is imposed…”
[53]
What
is apparent from these illustrative judgments is that the period
spent in custody, though taking into consideration, was not
computed
with any degree of mathematical certainty but a rough estimation was
used. There are however other judgments where the
actual period spent
in custody pre-conviction was deducted from the period of
imprisonment imposed after conviction. Rumpff CJ
in
S
v Hawthorne en ’n Andere
[17]
reasoned
this approach as follows:
“… ‘
n
Persoon wat in bewaring aangehou word in afwagting of verhoor,
ondergaan nie gevangenisstraf as sodanig nie en daarom word daar
ook
spesiale voorsiening gemaak ten opsigte van voedsel, klere,
beddegoed en leesstof vir sodanige persone, onder andere
in artikel
82 van die Wet op Gevangenisse. Daar is ook spesiale bepalings wat
van toepassing is op sodanige persone… Vanselfsprekend
kan ‘n
Verhoorregter by die oplegging van vonnis die feit in oorweging neem
dat beskuldigde ‘n geruime tyd in aanhouding
verkeer het, maar
hy kan daardie feit ten voordele van die beskuldigde aanwend onder
andere deur die periode van gevangenisstraf
wat wel opgelê word
korter te maak as wat anders die geval sou gewees het…
[18]
”
[54]
In
certain cases the Courts have adopted the approach that the time
spent by an accused person awaiting trial was the equivalent
of a
sentence of twice that length
[19]
.
In
S
v Brophy and Another
[20]
Schwartzman J (with whom Masipa J and Salduker J concurred) gave as
reasons for deducting double the time spend awaiting that in
trial in
the following terms:
“
[18]
There is no evidence before this court detailing the living
conditions of awaiting-trial prisoners, who are presumed to be
innocent and who are first offenders. What does not require evidence
is that time spent in prison awaiting trial is, at the very
least
equivalent to time served without remission. In addition, such
prisoners, do not get the benefit of any presidential pardon.
What
cannot be disputed is that the lot of the awaiting trial prisoner is
harsher than that of a sentenced prisoner in that he
or she cannot
participate in the programmes that a prison may run. What he or she
is condemned to is a seemingly endless routine
of boredom in the
course of which he or she cannot earn any privileges for which
serving prisoners can qualify by reason of good
conduct. Judicial
cognisance can also be taken of the gross overcrowding in prisons
housing awaiting-trial prisoners…
[19]
There is no science from which it can be determined that such
conditions are equivalent to double or treble or less than double
time served. Taking all conditions into account- and there are
probably others that may be found in some prisons-and notwithstanding
the reservations expressed by Goldstein J am satisfied that the ratio
in the Stephen case ought to be followed.”
[55]
Problems may arise, as alluded to by Goldstein J in
S
v Vilakazi and Another supra,
where the period spent in custody pre-conviction was doubled and then
deducted from the sentence imposed. An example will be appropriate
to
illustrate the difficulty with this approach. Where the nature of the
offence and the circumstances of its commission would
normally have
justified a sentence of 2 years, for argument’s sake, and the
accused had already spent a period of 12 months
in custody before
he/she is sentenced
[21]
does
it mean that in such a case the trial court must caution and
discharge him/her or how would the period spent in custody
pre-sentencing
be computed? Such an approach in my view may lead to
adsurd sentences being imposed and may undermining the confidence of
the public
in the administration of the criminal justice system.
[56]
While we did not have the benefit of full
argument on this point I am of the view that the overriding
consideration, where an accused
was held in custody for any
considerable length of the time before conclusion of the trial and
sentencing, in my view, is that
the accused’s liberty was
curtailed in circumstances where his or her guilt had not yet been
pronounced. He or she in all
fairness must receive credit for the
time spent in custody awaiting trial, once his or her guilt has been
established and he or
she has received a custodial sentence. In
such circumstances only the actual period spent in custody should be
considered.
A failure to take this period into consideration is a
misdirection which entitles a court on appeal to step in and remedy
the situation
by imposing an appropriate sentence.
[57]
The seriousness
of the offence committed by the appellant is reflected in the
severity of the sentence imposed by the trial Judge.
The appellant
aligned herself with the conduct of accused 1 who had committed a
gruesome murder of the one person who was generous
to them. The
period of 7 years imprisonment would have been a fitting sentence for
the role played by appellant in assisting
accused 1 to conceal
the deceased’s murder. Her pre-conviction incarceration however
would have to be taken into account
to determine the period she would
have to serve.
[58]
In the
circumstances and in order to reflect a consideration of the period
of 5 years and a month which the appellant had spent
in custody prior
to the conclusion of her trial, the sentence I would propose is 2
years imprisonment which is antedated to the
28 February 2013, being
the date on which the appellant was sentenced.
I
accordingly propose the following order:
1.
The appeal against the appellant’s
conviction on the competent verdict of theft and the sentence of 5
years imprisonment is
upheld. The conviction and sentence are set
aside.
2.
The appeal against the appellant’s
conviction on the competent verdict of being an accessory after the
fact to murder is dismissed;
3.
The appeal against the sentence of 7 years
imprisonment imposed on the appellant on her conviction as an
accessory after the fact
to murder succeeds. The sentence is set
aside and replaced with the following:
“
Accused
3 is sentenced to 2 years imprisonment which is antedated to 28
February 2013
”.
DOLAMO,
J
I
agree and it is so ordered.
SAMELA,
J
I
concur.
WEINKOVE,
AJ
[1]
At
paragraph 255 of the judgment
[2]
At
paragraph 273 of the judgment
[3]
Per
Claassen JP in
R
v Munango and Another
1956 (1) SA 438
(SWA) at p 440.
[4]
volume
6 par 294 as follows:
]
See
S
v Mtsweni
1985 (1) SA 590
(A) at 594 F
[6]
See
S v Matalediso en Andere
2003 (1) SACR 583
(SCA) where Olivier JA
held at 593G that :
[7]
See
S v Khosala
1996 (2) SACR 162
(O)
[8]
S
v Ntsele
1998 (2) SACR 178
(SCA)
[9]
1977
(4) SA 431(A)
at 534
[10]
See
S
v Pillay supra
at 535B
[11]
See
for example
S
v Olyn en Andere
1990 (2) SA 73
at 76A where Buys J held that: “
Veral
in gevalle soos hierdie, waar n beskuildigde vir n relatiewe kort
tyd na die gevangenis gestuur word, mag die tydperk wat
hy ‘n
aanhouding was terwyl hy verhoorafwagtend was, nie weggedink word by
vonnisoplegging nie…
”
[12]
Commenting
on the lack of uniformity in the approach to this aspect of
sentencing Cachalia JA in
S
v Dlamini
2012(2) SACR 1 at paragraph 42 has this to say: “…
the
courts have not spoken clearly on how to calculate this period. One
approach has been to do an inexact subtraction; another
is to deduct
the period actually spent, yet another is to treat the time spent in
custody at the very least, as equivalent to
time served without
remission; and a fourth, more adventurous method is to treat the
period as equivalent to about twice the
length, because of the
harsher conditions that awaiting trial prisoners are subjected to in
comparison with the conditions of
sentenced prisoners.”
[13]
2003
(2) SACR 166
(C)
[14]
At
page 175 of the judgment.
[15]
At
paragraph 60 of the judgment.
[16]
2009
(1) SACR 552
(SCA) /
2007 (2) SACR 56
(WLD)
[17]
1980(1)
SA 521 (A)
[18]
S
v Hawthorne en n Andere supra
at 52 C – E.
[19]
See
S
v Stephens and Another
1994 (2) SACR 163
at 168 F where Schultz J in an obiter dictum held
that: “
A
Further factor that I take into account is that both accused have
been in custody for six months awaiting trial and I would
agree that
there is force in Mr Du Plessis’ submission based on the
Canadian decision of Gravino (70171)
12 Crim LQ 434
(Quebec Court of
Appeal): ‘imprisonment whilst awaiting trial is equivalent of
a sentence of twice that length’”.
This approach was criticized by Goldstein J in
S
v Vilakazi and Others
2001 (1) SACR 140
(W) at 148 a – e.
[20]
2007
(2) SACR 56
(WLD)
[21]
Which
is not uncommon