About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2015
>>
[2015] ZAWCHC 207
|
|
Vananda v S (A516/2014) [2015] ZAWCHC 207; 2016 (1) SACR 592 (WCC) (6 March 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(
WESTERN
CAPE DIVISION, CAPE TOWN
)
CASE
NUMBER
: A516/2014
DATE
:
6 MARCH 2015
In
the matter between:
ANDILE
VANANDA
.................................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
J
U D G M E N T
RILEY,
AJ
:
On 24
November 2014 the appellant was convicted in the Regional Court at
Wynberg on 2 counts, namely murder and robbery with aggravating
circumstances. In regard to the robbery charges the State
alleged that the provisions of section 51(2), 52(2), 52(A) and
(B) of
the Criminal Law Amendment Act 105 of 1997 (‘the Act’)
was applicable, whilst on the murder charge the charge
sheet
specifically avers that section 51 and Schedule 2 of the Act was
applicable in that the death of the victim was caused by
the accused
during the commission of the offence of robbery with aggravating
circumstances and / or was committed by persons acting
in the
execution or furtherance of a common purpose or conspiracy.
The
trial Court ordered the 2 counts to be taken as one for the purpose
of sentence and sentenced the appellant to life imprisonment.
On 6 October 2014 the appellant was granted leave to appeal both his
conviction and sentence by the Court
a
quo
. The appellant, who was
represented in the Court
a quo
,
pleaded not guilty to the charges and made admissions in terms of
section 220
of the
Criminal Procedure Act 51 of 1977
which can be
summarised as follows:
(1)
That
the deceased was Pieter Johannes Gouws who died as a result of
strangulation on 22 May 2006 at [3......] [W......] Street,
Parow.
(2)
That
the deceased suffered no further injuries which in any way
contributed to and / or caused his death and that the contents of
the
medico-legal post-mortem report was admitted as being correct.
(3)
Several
photo’s of the murder scene and other photo’s, a sketch
plan and key thereto as prepared by Inspector Joubert
of the South
African Police Services was admitted as correct and allowed into
evidence.
(4)
That
the appellant had pleaded guilty to escaping from lawful custody on
22 May 2006 and that he was arrested on 31 May 2006 at
[D…..],
[J…..] [S…..] Squatter Camp by the police.
(5)
That
after his arrest he was taken to a District Surgeon who took a sample
of his blood for DNA profiling.
I pause
to mention that after the close of the State’s case the
appellant further agreed that the statement that he had made
to
Colonel Louis Aspeling (‘Aspeling’) of the South African
Police Services in regard to the allegations against him
be admitted
into evidence without any evidence being presented on the issue of
its admissibility. The appellant also agreed
to the correctness
of the content of the statement.
The
appellant elected not to testify and closed his case without calling
any witnesses. The facts underpinning the conviction
can be
summarised as follows: On 22 May 2006 at approximately 08h50 the
appellant and 2 other male persons who were being transported
from
Pollsmoor escaped from the back of a police van when they arrived at
Parow Regional Court where they had been transported
to for an
unrelated court appearance. In the escape the appellant left
one of his training shoes in the police van.
At
approximately 10h00 the same morning the deceased telephoned one of
the State witnesses, Lettie Meintjies (‘Meinjies’),
to
come to his house at [3…..] [W…..] Street, Parow to
discuss with him wooden clocks that she wanted him to make
for her.
Meintjies knew the deceased, a 74 year old male who lived on his own
and who did his woodwork in his garage on his
premises. She
knew the house of the deceased well as she worked for the deceased
occasionally. According to her she
arrived at the deceased’s
house after eleven in the morning and rang the doorbell but there was
no response.
She
noticed that a window adjacent to the front door of the house was
open wide and later moved around the side of the house where
the
garage is situated. As she walked around the side of the house
she saw a black male (the appellant) looking at her from
behind the
wall of the furthest corner of the garage and immediately disappear
when he saw her. She suspected something was
amiss and she told
the next door neighbour who approached her about her concerns and
then requested that he telephone the deceased
on his house telephone.
Though
they could hear the telephone ringing inside the house no one
answered. Meintjies and another neighbour of the deceased,
Cornelia Susan De Villiers (‘De Villiers’), who arrived
on the scene, then proceeded towards the backdoor of the deceased’s
house to investigate. De Villiers entered the house and
discovered the deceased laying on his back on the kitchen floor.
He was already dead. His mouth, neck and hands were tied with
ties and a belt. I pause to mention that according to
the
medico-legal post-mortem report the chief post-mortem findings are
consistent with strangulation with an associated fracture
of the
hyoid bone with ligature in situ above the ankles. The police
and paramedics were contacted and arrived on the scene.
There
were clear signs that a struggle had taken place. In the
kitchen the contents of the dirt bin had been emptied on the
floor
and the bedrooms in the house had been ransacked with items laying
all over the place. As appears from the evidence,
bedding had
been removed from the deceased’s house and was found in a black
plastic bag on the side of the house. In
the course of the
investigation of the scene the police found one of the appellant’s
training shoes in the black bag which
contained the deceased’s
property.
In one
of the rooms the police collected a cigarette butt which was analysed
and it was later determined that it contained the appellant’s
DNA. Blood which was found on the training shoe of the
appellant which was on the scene was tested and it was established
to
be the blood of the appellant. The appellant was arrested on 31
May 2006 at his house at Langa. At the time of his
arrest he
was wearing the deceased’s shoes, a fact which he readily
admitted to the police. Later the same day the
appellant made a
statement to Aspeling in regard to his involvement in the commission
of the offences.
The
crucial issue to be determined in this appeal is whether or not the
trial court had erred and misdirected itself in not attaching
any
weight to the exculpatory parts of the statement made by the
appellant to Aspeling and whether the only reasonable inference
to be
drawn from the facts is that the appellant murdered the deceased.
It was contended on behalf of the appellant that
the State had failed
to present evidence to rebut the version given by the appellant to
Aspeling, i.e. that another person was
present at the time the
deceased was strangled and that that person had in fact murdered the
deceased.
It is
accordingly necessary to repeat the contents of the statement that
appellant made to Aspeling in full so that it can be viewed
in its
proper perspective. The typed version of the statement, the
contents of which was admitted by the appellant, reads
as follows:
“
Verlede week Maandag 22 Mei 2006 het ek
vanaf Pollsmoor gekom na Parow Hof. Ons was vyf mense in die
polisiewa. Die
waentjie se glas van die deur was uit en daar
was net die draad. Die draad was effens pap en ek en Olweto het
die draad afgebreek
en by die Hof uit die polisiewa gespring.
Olweto het sy eie pad gehardloop. Ek en ʼn man van Mfuleni
wie ek nie
ken nie, ons het in Parow na ʼn huis gegaan. Ons
het ʼn huis gesien met ʼn oop venster. Die ander man
het
eers by die venster ingeklim en ek daarna. Ons het iemand
in die huis gehoor. Ek het saggies geloop en op iets getrap
wat
raas. Die man het kom kyk en die ander man het hom om die nek
gegryp en gewurg. Hy wou hê ek moet kom help
en gesê
ek moet iets kry om die man vas te maak. Ek het ʼn “Tie”,
das gekry in die kamer. Ek
het teruggekom en gesien die man lê
op die vloer. Ek het gedink hy is klaar. Ek het gehelp om
sy hande vas te
maak. Ek het sy selfoon gesien op die tafel en
dit gevat. Ek het ʼn R140.00 uit sy beursie geneem.
Die ander
man het R100.00 gevat en ek R40.00. Ek het vergeet om
te sê dat die tyd wat ons gehardloop het, het ek een van my
tekkies
by die polisiewa gelos en met een tekkie gehardloop. Ek
het my ander tekkie in die huis gelos en ander skoene in die huis
aangetrek. By die huis het ons iemand hoor klop voor by die
huis. Ons het die agterdeur oopgemaak en uitgegaan.
Ek
het gesien dat die man wat voor geklop het, het my gesien. Ek
het toe agter oor die muur gespring. Toe ek in die
Main Road
is, het ek gesien dat die ander man sy eie taxi na Bellville vat.
Ek het my eie taxi gevat tot in Bonteheuwel.
Ek het daar
afgeklim en is terug na Langa. Ek het vir ʼn onbekende
persoon die selfoon gewys en gesê ek verkoop
die foon. Ek
het dit vir hom gewys. Ek het R30.00 vir die foon gekry
aangesien die persoon gesê het dit is ʼn
ou foon. Ek
was die res van die week by die huis tot gister, tot die polisie
gekom het. Die polisie het ʼn foto
van my gehad en my toe
gearresteer. Ek is meegedeel dat dit is ʼn saak van moord.
Ek het saam met die speurder
gewerk en vir hom alles vertel.”
The
trial court correctly found that the statement made by the appellant
to Aspeling does not amount to a confession. It is
trite law
that a confession is an ambiguous admission of guilt which would
amount to a plea of guilty if made in a court of law.
See
R
v Becker
1929 (AD) 167.
Accordingly, all the elements of the offence must be admitted and all
facts that might constitute a defence
must be excluded. It is clear
that the statement referred to herein before does not amount to a
confession.
I agree
with the trial magistrate that at most the exculpatory statement made
by the appellant amounts to an extra curial admission
on his part.
It is further a generally accepted legal principle that an admission
made extra curially by an accused person
is admissible provided it
was made voluntarily and relates to the offence with which the
accused is charged. In the present
matter it is common cause
that the prosecutor in the court
a quo
intended to call Aspeling to testify that the appellant had made the
statement freely and voluntarily and that the statement was
therefore
admissible. The defence however agreed that the statement could
be handed in on the basis that it was made freely
and voluntarily and
that the content of the statement was correctly recorded.
In
dealing with the weight to be attached to the exculpatory statement
made by the appellant, the trial magistrate, in a succinct
summary of
the law, correctly held as follows:
“
Die verontskuldigende gedeeltes van die
verklaring aan Aspeling is nie getuienis nie. Dit sou slegs tot
die status van getuienis
verhef kon word indien dit onder eed herhaal
was. Dit word egter nietemin saam met al die getuienis oorweeg
om te bepaal
welke waarde, indien enige, daaraan geheg kan word.
In
S v Yelani
1989 (2) SA 43
het die Appèlhof as volg beslis op 49H-J en is
die volgende gesê
: ‘When an
extra curial statement by an accused is tendered in evidence the
Court’s approach thereto is governed by
the principles
enunciated by Greenberg, JA in
R v
Valachia and Another
1945 (AD) 826.’
Na verwysing na die
Valachia
beginsel gaan die Hof voort en sê as volg
;
‘Although a Court is entitled to reject exculpatory portions of
an accused’s extra curial statement while accepting
parts
thereof which incriminate him (
S v Khoza
1982 (3) SA 1019
(A) at 1039A) it should do so only after a proper
consideration of the evidence as a whole.’
En
soos reeds gesê is in
Valachia
,
‘Naturally, the fact the statement is not made under oath, and
is not subject to cross-examination, detracts very much from
the
weigh to be given to those portions of the statement favourable to
its author as compared with the weight which should be given
to them
if he had made them under oath, but he is entitled to have them taken
into consideration, to be accepted or rejected according
to the
Court’s view of their cogency.”
The
trial Magistrate was alive to the fact that she had to make a
determination from the available evidence whether the only inference
to be drawn from the facts was that the appellant had murdered the
deceased. It is trite law that in the adjudication of
a
criminal trial, where the burden of proof rests on the State to prove
the guilt of the accused beyond a reasonable doubt, that
a fact in
issue can be proved by circumstantial evidence provided that:
(1)
The
inference which is sought to be drawn is consistent with all the
proved facts, and
(2)
No
other reasonable inference can be drawn from those facts. See
R
v Blom
1939 (AD) 188.
In
coming to, what she correctly describes as the inescapable conclusion
that the appellant murdered the deceased, the trial Magistrate
found
as follows:
“
Nou met dit in gedagte neem die Hof in
ag dat daar geen aanduiding uit die beskikbare getuienis is dat meer
as een persoon die woning
van Gouws betree het op 22 Mei 2006 nie.
Die items wat beskryf kan word as synde die items wat geroof was kon
deur een persoon
verwyder word, veral gegewe die feit dat heelwat van
die items in die swart sak langs die huis herwin was. Verder
het Me
Meintjies slegs een persoon op die toneel gewaar en die
beskuldigde was by sy eie erkenning daar. Die sigaret stompies
op
die toneel herwin het klaarblyklik slegs die beskuldigde se DNA
profiel onthul. Die beskuldigde se tekkies is op die toneel
agtergelaat en geen ander besittings van vreemde oorsprong is in die
huis gevind nie. In die beskuldigde se skriftelike erkenning
aan Superintendent Aspeling, bewysstuk “N”, verplaas die
beskuldigde die blaam vir die oorledene se dood na ʼn
onbekende
persoon wie in Mfuleni woon. Die getuienis in die geheel
onderskraag egter nie ʼn bevinding dat daar nog ʼn
persoon in
die woning teenwoordig was saam met die beskuldigde nie. Wat
wel vas staan na aanleiding van dit wat gemene saak
is, is dat Gouws
gelewe het toe die beskuldigde sy woning binnegegaan het en dat Gouws
verwurg, vasgebind en oorlede was nadat
die beskuldigde die toneel
verlaat het. Indien die beskuldigde ʼn onskuldige
verduideliking gehad het vir hierdie feit,
moet ek aanvaar dat hy
daaroor sou wou getuig het onder eed.”
I agree
with the conclusions reached by the trial Magistrate and I am
accordingly satisfied that the trial Magistrate’s reasoning
cannot be faulted. The appeal against the conviction should
accordingly be dismissed.
I now
turn to deal with the appeal on sentence. It is contended that
the trial court had failed to take into account the appellant’s
personal circumstances, overemphasised retribution, failed to take
into account the element of mercy, that long term imprisonment
would
have a negative effect on the rehabilitation of the appellant and
that the sentence was shockingly inappropriate. The
Criminal
Law Amendment Act 105 of 1997
prescribes a sentence of 15 years
imprisonment in respect of the charge of robbery with aggravating
circumstances and a minimum
sentence of life in respect of the murder
charge unless there are substantial and compelling circumstances
present that justify
a lesser sentence.
In
considering an appropriate sentence for the appellant in this matter,
the trial court took into account the appellant’s
personal
circumstances, the gravity of the offence and the interest of the
community. In my view the trial court adopted
a balanced
approach in the determination of what it thought to be an appropriate
punishment, taking into account all relevant factors
without over or
underemphasising any of the relevant factors that have to be taken
into account in the determination of an appropriate
sentence.
The
appellant was 21 years old when he committed the offences and 26
years old at the time that the sentence was imposed.
He was
unmarried with no dependants and he had been in custody since May
2006. According to the information contained in
the probation
officer’s report which was handed in as evidence, the appellant
was very young when his mother died.
He was placed in the care
of his grandmother and had no contact with his father after his
mother’s death.
He had
been under the impression that his father was dead. His
grandmother tried her best to provide for the needs and care
of the
appellant and his siblings. He left school on his own accord at
a very early age and as a teenager got involved with
the wrong
friends and became involved in drugs. The appellant is not a
first offender. He has several previous convictions
for
housebreaking and theft which was committed whilst he was still
youthful and he was given a suspended sentence coupled with
community
service and placed under the supervision of a probation officer.
He has also been sentenced to direct imprisonment.
The fact
that he has been in custody for some time awaiting trial or for the
duration of his trial is undoubtedly a relevant consideration
in
determining sentence.
The
question that however has to be asked is ‘whether its effect
taken together with the prescribed minimum sentence would
render a
sentence so disproportionate to the offence of which the accused had
been convicted of as to amount in the context of
all relevant factors
to substantial and compelling circumstances, warranting the
imposition of a lesser sentence’.
See
S
v Fortune
2014 (2) SACR 178
(WCC) at
188e-f. In my view the time spent by the appellant in prison
prior to the imposition of sentence was not a sufficiently
weighty
consideration in the context of all the other circumstances to result
in a deviation from the prescribed minimum sentence.
The
following factors are aggravating; the appellant was convicted on 3
February 2004 for murder, housebreaking with intent to rob
and
robbery and assault with intent to do grievous bodily harm. In
March 2009 the appellant was sentenced respectively to
12 years, 8
years and 4 years for the offences referred to above. The
sentences on the housebreaking with intent to rob and
robbery and the
assault with intent to do grievous bodily harm charges were ordered
to run concurrently with the sentence on the
murder charge. At
the time of sentence on this matter he was serving an effective 12
years imprisonment for the offences
referred to above.
The
appellant shows a clear propensity to commit offences of dishonesty
and offences associated with serious violence. The
appellant
did not show genuine remorse and rather attempted to downplay his
role in the commission of the offences. the present
murder and
aggravated robbery were committed within a short space of time after
his escape from lawful custody and the appellant
had time to weigh up
his actions before entering the deceased’s home. The
appellant’s conduct illustrates extreme
brazenness by entering
the deceased’s house through a window which was visible from
the road in broad daylight.
The
deceased was a frail, defenceless, 70 year old man who suffered from
diabetes. The violence meted out at the deceased
was
unnecessary to achieve the end and therefore clearly gratuitous.
The circumstances of the present murder is similar to
the previous
murder he committed and is indicative of the modus operandi that
shows the appellant is someone who preys on elderly,
defenceless
persons by breaking into their homes, robbing them and then murdering
them by way of strangulation.
Our
courts have repeatedly held that society demands that persons who
make themselves guilty of offences of this nature must be
severely
dealt with. In cases such as the present the element of
retribution and deterrence rather than the interest of the
offender
come to the fore strongly in the assessment of the appropriate
sentence. I am mindful that in situations such as
this where
imprisonment for life is prescribed as a minimum sentence, that this
is the ultimate penalty that the courts in this
country can impose.
Accordingly it must not be imposed lightly or without full
consideration as to whether it is the appropriate
sentence.
Violent crime of this nature is endemic in this country and society
and in particular the vulnerable require protection.
Considering the facts and circumstances of this matter, I am not
persuaded that the sentence is shockingly inappropriate and /
or that
it is disproportionate to the nature of the offences so that it can
by typified as gross and thus constitutionally offensive.
See
S
v Vilakazi
2009 (1) SACR 552
(SCA) at
560.
The
trial court made a detailed and thorough assessment of the existence
of substantial and compelling circumstances in determining
whether or
not it could impose a lesser sentence and in my view correctly
concluded that there were no substantial and compelling
circumstances
present which justified the imposition of a lesser sentence to the
sentence prescribed by the legislature on the
count of murder.
In my view the trial court exercised its discretion in regard to
sentence properly and judicially and there
is no basis to interfere
with the sentence imposed.
In the
result the following order is made:
THE
APPEAL AGAINST CONVICTION AND SENTENCE IS DISMISSED.
RILEY,
AJ
I
agree. The appeal is dismissed. The conviction and sentence is
confirmed.
ERASMUS, J