S v Brophy and Another (A06/06) [2006] ZAGPHC 83; 2007 (2) SACR 56 (W) (29 August 2006)

IN THE HIGH COURT

OF SOUTH AFRICA

(WITWATERSRAND LOCAL DIVISION)

CASE NUMBER: A06/06

In the matter between:

EARL BROPHY First Appellant

LEROY FRAZER Second Appellant

and

STATE Respondent

______________

JUDGMENT

SCHWARTZMAN J:

On 5 February 2004 Mailula J and two assessors convicted Earl Brophy (accused 1) and Leroy Frazer (accused 2) of the murder of Sophy Mphuthi (the deceased) and robbery with aggravating circumstances. On the murder charge both accused were sentenced to 18 years imprisonment. On the robbery charge they were both given 12 years, half of which was to run concurrently with the sentence on the murder count. An effective sentence of 24 years. On 8 June 2005 Mailula J granted accused 2 leave to appeal to a full bench of this court against his convictions and sentences. On 2 August 2006 Mailula J granted accused 1 leave to appeal to this court against his convictions and sentences. In this judgment I will refer to Brophy as accused 1 and Frazer as accused 2.

The following background facts are not disputed:

In October 1999 Calvin Brophy, the uncle of accused 1, was living with his wife and four children in a house in Honeydew. The deceased, who was employed by Brophy as a domestic worker, lived in an outbuilding with her son, L.M., who was at the time of her death 14 years old. Brophy and his wife worked. During the week their routine was to leave home at about 06h30 with their three school-going children, who they would drop off at school and then go to work. In October 1999, their youngest child was approximately 14 months old. She was left in the care of the deceased, who would come into the house at about 06h00.

On Monday 20 October 1999 the family followed its weekday routine. According to L.M. the deceased left the room in which they slept at about 06h00. He next saw the deceased some hours later. She was on the floor of a bedroom in the main house. There was cord around her neck and hands that was in turn tied to a bed. She was dead. She had been strangled.

Electronic goods, compact discs and food had been taken from the house and put into canvas bags. The bags and their contents were found outside the house.

Accused 1 and 2 admitted entering the house sometime after the deceased came on duty. Each of them asserted that the other was solely responsible for the murder of the deceased and the taking of electronic goods and food forming the subject of the robbery charge. The trial court rejected their exculpatory versions and found that the accused had committed the murder in the course of a common purpose to rob.

Each of the accused had a different reason for going to the property, a different reason for going into the house and a different account of what happened inside the house.

Based on information given to the police by Mr Simpson, a next door neighbour who witnessed some of the events, Brophy was, later that day, able to identify accused 1 and 2 as the people who had come to the house. Two weeks before the murder accused 1 had looked after the house while Brophy and his family went away. Brophy knew that both accused lived in Riverlea. That day he took the police to the homes of accused 1 and 2. Neither was at home. They claim to have hidden in a tree near Brophy’s house until nightfall. It is not disputed that accused 1, who knew that the police were looking for him, went into hiding until he decided to hand himself over to the police on 1 November 1999. On 21 October 1999 accused 2, knowing that the police were looking for him, left his Riverlea home for Middelburg, where he remained until he was arrested on 15 May 2000.

Following his arrest, accused 1 elected to exercise his right to remain silent. The day after his arrest accused 2 made an exculpatory statement in which he implicated accused 1 in the murder and the robbery.

The accused’s’ trial started on 22 October 2002 – some three years after the murder and robbery. In the course of cross-examining L.M., who had identified accused 1 as one of the person he had seen running from the house, his Counsel put to Mphuthi that his identification was mistaken because accused 1 was in Eldorado Park on 20 October 1999 and did not go to Brophy’s house that day. Shortly thereafter, accused 1’s counsel withdrew from the trial, which was then postponed. The trial resumed on 2 February 2004, some 16 months later. Accused 1 gave evidence. He abandoned the alibi defence that had been put to Mphuthi and proceeded to place himself at the scene of the murder and robbery.

I turn to deal with accused 1’s account of what happened on the morning of 20 October 1999:

At the time, accused 1 lived in Riverlea. He was unemployed. Some two weeks before he had looked after Brophy’s house while the family was away. During that period he had a party that accused 2 attended. On 20 October 1999 accused 1 decided to go to Brophy’s house to collect clothing he had left there while staying in the house. He did not telephone the Brophy house to ask if he could come that day. Accused 2, who was also unemployed, agreed to accompany him. According to accused 2, accused 1 did not tell him that he was going to collect his clothing. There is no evidence as to when this arrangement was made. There is no evidence as to how far Riverlea is from Honeydew. In the cross-examination of accused 1, accused 2’s Counsel put the distance at between 15 and 20 kilometres. Accused 1 did not know if this was correct. All he could say was that it was “baie ver”. He did not have a watch but estimated, without any degree of certainty, that it took approximately one and a half hours to walk the distance. According to him, they left Riverlea at approximately 06h30. This means that they would have arrived at the house at approximately 08h00. Accused 1 knew that, at this hour, Brophy would not be at home. Accused 2 also did not

know the distance from Riverlea to Honeydew. He estimated that they left at about 05h00 and arrived at the house at approximately 08h00.

Be this as it may, and on arrival at the house, accused 1 went to the front door. He knocked. The deceased opened the door and let the two accused in. Accused 1 explained the purpose of his visit. At the invitation of the deceased, accused 1 first went into the kitchen to have tea and bread. Accused 2 stayed in the lounge. The deceased then told accused 1 to go to the main bedroom to look for his clothes that may be on the bed. There he found the Brophy’s child, who woke up and started to cry. He picked up the child and took it to the deceased, who he had last seen in the kitchen.

It was then that he saw accused 2 in the kitchen strangling the deceased – he had his arm around her neck. Accused 1 claims to have frozen. He then pushed accused 2; accused 2 then threatened him with a knife and told him to leave. He asked accused 2 what he was doing – the reply was that he was doing it because Brophy had accused him of stealing a car radio. He claims not to have known whether the deceased was dead. Because accused 2 had a knife, accused 1 did not try to intervene. Accused

1 decided to leave the house. He took the baby back to the bedroom. The front and back doors were locked as were the garage doors. He then opened an outside window and climbed out.

For an unstated reason, he returned through the window to see accused 2 dragging the deceased to a bedroom. He did not know if she was dead. He then left the house again through the same window, followed by accused 2. Accused 2 pushed a canvas bag through the window. They ran away. As they ran they were seen by L.M. who was at the main gate of the property.

Accused 1 speaks of one bag – a blue canvas bag was found in the driveway. A green bag was found in a tree. Accused 1 could not explain how these bags came to be where they were found. As they ran away they came across a security guard. Accused 2 threatened him with a knife. The guard ran away. The two accused and the guard ran in different directions. The accused eventually decided to climb into a fruit tree where they hid until it was dark. Accused 1 claimed to have been frightened of accused 2 and that is why he stayed with him.

On getting to Riverlea and having heard that the police were looking for him, accused 1 went into hiding until 1 November 1999 when he handed himself over to the Honeydew police.

Accused 1 could not describe the clothing he had gone to fetch from the Brophy house. More importantly, he could not explain why his Counsel had initially proffered an alibi defence.

Accused 1 denied any involvement in the murder of the deceased and the taking of goods from the house.

This is then a broad summary of accused 1’s evidence. Save for what follows, it is unnecessary to go into any further detail because the trial court quite correctly rejected as false accused 1’s account of what happened that morning and, in particular, his account of the deceased’s death and the taking of the goods from the house. What I do want to add is that there is no possibility that if accused 1 was innocent of the crimes with which he was charged that he would, in the exercise of his Constitutional right to silence, elect to sit in prison for four years and three months before asserting his innocence and blaming accused 2 for what had happened. This is a further compelling reason for rejecting accused 1’s version.

I turn to accused 2. At the time, he had been unemployed for two years. In the past he and his friend, Snyders, had spoken to Brophy about a job. Brophy said he would let them know. On 19 October 1999 accused 1 told him that Brophy had work for him and that he wanted to speak to him. At about 05h00 the next morning he and accused 1 set out from Riverlea to walk to Brophy’s house. They got there at about 08h00.

On arrival, accused 1 told accused 2 to wait at the gate to the property while accused 2 went in to speak to Brophy. Accused 2 waited until he got irritated with the delay in having to wait outside. He then decided to go into the house. He went to the front door and knocked. He got no reply. The front door was ajar – he pushed it open. He went into the sitting room where he saw accused 1 packing CD’s into a bag. Accused 2 asked accused 1 what he was doing and where his uncle was. There was no reply. Accused 1 then walked down a passage into the kitchen, followed by accused 2. In a bedroom opposite the kitchen accused 2 saw a woman (it must have been the deceased) on the floor in a half sitting position lying against a bed with something around her neck. He then saw accused 1 coming out of the kitchen with a knife. He was on his way to the bedroom. Accused 2 stopped accused 1 with his hand. It was then that accused 1 said that he wanted to stab the woman to make sure she was dead because she knew him. Accused 2 then told accused 1 to leave the woman and that he (accused 2) did not want to be involved and that he was leaving. Accused 1 returned to the sitting room followed by accused 2. Accused 1 then changed his jeans that had a blood spot on them for a tracksuit bottom. What he had seen shocked and frightened accused 2.

Accused 2 left the house through the front door followed by accused 1, who was carrying two bags – one green and one blue. This is contrary to the evidence of accused 1, who says they left through a window. As the walked quickly down the drive they saw L.M. near the gate to the property.

When accused 2 reached the street he started to run. He was followed by accused 1, who dropped one of the bags near the gate. After accused 1 caught up with him, accused 1 pushed the bag he was still carrying into a tree. It was the green bag. This was seen by a security guard on a bicycle, who spoke to accused 1 as accused 2 walked on. He then heard the security guard tell a person nearby to phone the police. He and accused 1 then started to run. They took refuge in a tree where they hid until nightfall. While seated in the tree accused 1 told accused 2 that he had done what he did because Brophy had dismissed him from work because of a radio that had disappeared.

Accused 2 said that he was not afraid of accused 1 and that accused 1 had told him that he would not implicate him because he knew that accused 2 had done nothing.

When he got home he told his mother that “iets afskuwelike gebeur het”. He did not give any detail. That night his grandmother told him that his aunt in Middelburg had phoned to say that there was a place in Middelburg looking for workers. He left for Middelburg the next morning. There was no job. He stayed on until 15 May 2000 when the police came to his aunt’s house to arrest him. They found him hiding behind a door. Over the seven months he was in Middelburg he knew, from calls from his mother, that the police were still looking for him. She wanted him to come home. He would not because “ek wou nie betrokke geraak het in die hele voorval nie. Ek sou arresteer geword het en in die tronk ingesit word”.

This is then the summary of evidence of accused 2. Mr Pretorius, who appeared for the appellant at the trial and on appeal, submitted that accused 2 was a credible witness, who did not contradict himself and who gave an account that contained no improbabilities. The trial court disagreed with this submission. I turn to consider whether accused 2’s version as to why he went to Brophy’s house with accused 1 on the morning of 20 October 1999 can reasonably possibly be true.

Accused 2’s version as put to accused 1 was that “accused 2 was in need of employment and on the day before the incident you (accused 1) told him he can go to the uncle’s (Brophy’s) house to go and ask for work.” This version is substantially different to accused 2’s evidence, which was that Brophy in fact had work for accused 2 and that he wanted to speak to him the next day. In argument Mr Pretorius said that he had made a mistake by failing to properly put accused 2’s version to accused 1. What is significant in this context is that it was never put to Calvin Brophy that he had employment for accused 2.

Accused 2 knew Brophy well. He also knew where Brophy lived. There was accordingly no reason for accused 1 to accompany him and no probability that accused 1 would accompany accused 2 on what was, on his version, a six hour walk. Accused 2 gave no reason for going with him that day. On the other hand, and on accused 1’s version, he did not tell accused 2 that he was going to the house to collect clothes. If this was true, there is no reason for accused 2 to accompany accused 1 on this six hour walk.

Brophy and his family left home to go to work at 06h30. Accused 1 knew this. If there was a job prospect on offer, there is no probability that accused 1 would take accused 2 to the Brophy house to arrive at a time when he knew that Brophy would not be at home. This was accused 1’s evidence and on this issue and he must be believed.

If Brophy had a job for accused 2, it is improbable that he would tell him to come to the house from Riverlea on a weekday, without saying that he must be there before 06h30. It is not known where Brophy worked. It is, however, unlikely that it was a three hour walk from Riverlea. If Brophy had a job for accused 2, the probability is that he would have told him to come to his place of work and not to his home at an unstated time.

Accused 2 knew Brophy well. According to accused 2 Brophy had employment for him. There is no probability and no reason for accused 1 to tell accused 2 to wait outside the gate while he went inside to speak to Brophy. This is, I believe, a fabrication by accused 2 to distance himself from the crimes committed in the house.

Accused 1 said that Brophy had a problem with accused 2 because he believed that accused 2 had recently stolen his car radio. According to accused 2, accused 1 had told him that Brophy had a problem with accused 1 because he believed that accused 1 had stolen the radio. Brophy denied both versions. In any event, and on either version, there is no probability that accused 1 would, in the circumstances, have approached Brophy for a job for accused 2, alternatively no probability that Brophy would have offered accused 2 a job. It is also significant that it was never put to Brophy that, through accused 1, he had conveyed the offer of a job for accused 2.

Accused 2 contradicts himself as to whether he was frightened of accused 1. Accused 1 did not threaten him yet he spends from approximately 10h00 to 18h00 (eight hours) hiding in a tree with accused 1. If he was not threatened and if he was innocent, it is improbable that he would behave as he did.

If accused 2 was innocent of the crimes the police believed he had committed, and if accused 1 gave the undertaking he did, there is no probability that accused 2 would not tell his mother what had happened and no probability that he would have gone off to Middelburg and remained in hiding for some seven months. No innocent person would have behaved as accused 2 did.

On these facts I find that accused 2’s reason for going to Brophy’s house on 20 October 1999 cannot reasonably possibly be true. I have already rejected accused 1’s reason for going to the house as false.

What must then be asked is what inference is to be drawn from the fact that both of them gave false explanations for going to the house that morning. In S v Mtsweni 1985 (1) 590 (AD) it is said that “caution must be exercised against attaching too much weight thereto. The conclusion that because an accused is untruthful he therefore is probably guilty must specifically be guarded against. Untruthful evidence … does not always justify the most extreme conclusion”.

What must also be noted is that if either one of them went to the house with the intention to steal or rob, he would not have taken an innocent eye witness with him.

On the facts, the only reasonable inference to be drawn is that the accused set out for Brophy’s house that morning with the intention of robbing it. Accused 1 admitted that he knew that Brophy would not be at home when they got there. Both were seen by L.M. in the sitting rooms packing CD’s into a bag. This may have been before or after the attack on the deceased. How the two of them got into the house is not known.

The deceased knew accused 1. She may also have known accused 2. It is not known whether the accused knew or foresaw that they would find the deceased in the house. On the probabilities, the accused did not foresee that L.M. would be present that morning. However, both must have foreseen that if the deceased saw either of them in the house, and if they were to avoid capture, she would have to be eliminated.

Accused 1’s account of accused 2’s attack on the deceased and his reason for attacking her (see paragraph 3.3 and 3.4 supra) is so improbable that his version must be rejected as false. Accused 2’s account of accused 1’s attack also lacks any ring of truth. In particular, there is no probability that accused 1 would have simply heeded accused 2’s admonition that he should not stab the deceased to make sure that she was dead and leave the house not knowing what had happened to the deceased.

Here again, the only inference I can draw from the false testimony of accused 1 and 2 is that they were both complicit in the murder of the deceased. The probable reason for their running away from the house was that they knew that L.M. had seen them inside the house.

What remains to consider is their conduct following their flight from the house. Although an innocent person may be shocked at what he had seen in the house, there is no probability that he would have stayed up a tree with a murderer and robber from mid-morning until nightfall.

If there was any truth in accused 2’s version of his being an innocent bystander caught up in a robbery and horrendous murder, there is no probability that he would not have told his mother that he was not involved in what had happened. He knew the police were looking for him. If he knew he was innocent he would not have behaved in the manner he did. Little weight can be attached to the exculpatory statement made to a magistrate the day after his arrest. Accused 2 had seven months to think it out. There is no reason to elaborate further on why accused 2 is guilty as charged.

Considering the evidence with which I have dealt as a whole – that is both accused’s false reasons for going to the house, their conflicting accounts of what had happened in the house and their conduct after they left the house – the conclusion to which I come is that like accused 1, accused 2 – the appellant – was correctly convicted on both the murder and robbery counts. In reaching this conclusion, I have been guided by the oft followed rule in S v Madlala 1969 (2) SA 637 (AD) at page 640G to H, where the following is said:

“Generally, and leaving aside the position of an accessory after the fact, an accused may be convicted of murder if the killing was unlawful and there is proof –

that he individually killed the deceased, with the required dolus, e.g. by shooting him; or

that he was party to a common purpose to murder, and one or both of them did the deed; or

that he was a party to a common purpose to commit some other crime, and he foresaw the possibility of one or both of them causing death to someone in the execution of the plan, yet he persisted, reckless of such fatal consequence, and it occurred; see S v Malinga and Others, 1963 (1) SA 692 (AD) at p 694F-H and p 695;”

I refer in particular to paragraph (c).

Turning to sentence, Mailula J correctly found that in terms of the minimum sentence legislation, and absent substantial and compelling circumstances, a sentence of life imprisonment was to be imposed for the murder and that a sentence of 15 years had to be imposed for the conviction on the count of robbery with aggravating circumstances. The murder qualified for a life sentence because the deceased died in the course of the accused “committing or attempting to commit or after having committed … robbery with aggravating circumstances” – see Schedule 2 Part 1C of Act 105 of 1997, read with Section 51 (a) of the Act.

In terms of Section 51 (3) of the Act, the trial court was required to list the substantial and compelling circumstances that justified the imposition of a lesser sentence. In finding that such circumstances existed, the court listed the fact that both accused were first offenders, that accused 2 was only 20 at the time the offences were committed and that the form of intent to kill was dolus eventualis. It was also said that an injustice would result if the prescribed sentences were imposed. On the murder charge a sentence of 18 years imprisonment was imposed. On the robbery charge a 12 year sentence was imposed. Without articulating her reasons, Mailula J ordered six years of this sentence to run concurrently with the 18 year sentence, resulting in an effective sentence of 24 years.

Although the accused were correctly convicted of both offences, the whole of the sentence on the robbery count should have been ordered to run concurrently with the sentence on the murder charge. This is because the sentence on the murder took into account that it resulted from or in the course of a robbery with aggravating circumstances.

More importantly, and what the court a quo overlooked entirely, was the period of time spent by both accused awaiting trial and sentence. Counsel for the accused and the State agreed that this was a factor that should have been taken into account by the trial court. That this fact was overlooked entitles this court to interfere with the sentence and impose what it considers to be a proper sentence.

In S v Stephen 1994 (2) SA 163 (W) it was said by Schutz J at page 168f that “… I would agree there is force in Mr Du Plessis’ submission, based on the Canadian decision of Gravino (70/71) 13 Crim LQ 434 (Quebec Court of Appeal): ‘Imprisonment whilst awaiting trial is the equivalent of a sentence of twice that length’”. Sitting as a single judge of first instance and in appeal courts of this division, I have followed this decision.

In S v Vilikazi and Others 2000 (1) SACR 140 (W) Goldstein J said:

“In this regard I do not overlook the dictum of Schutz J (as he then was) in S v Stephen and Another … I am not aware of this dictum having been universally followed in our courts. It is also not clear to what extent the learned Judge applied the Canadian rule. I think too with respect that it is unsafe to rely on Canadian authority which may well be grounded in the special circumstances of that country. (the report of Gravino quoted in Stephen’s judgment is not that of a reasoned judgment, but in a few lines records the facts of the case and a comment of Montgomery J that ‘it is a recognised “rule of thumb” that imprisonment while awaiting trial is the equivalent of a sentence of twice that length’ No reasons are given for that rule.) Imprisonment in our country, whether awaiting trial or after sentence, constitutes, as no doubt it always has done here, a far-reaching and all-encompassing deprivation of liberty and subjects the prisoner in many if not all cases to boredom, indignity, loneliness, danger, lack of privacy and quite profound suffering and loss. … I would be loathe in the absence of clear evidence to decide that the miseries of the awaiting trial period are more oppressive that those of the post-sentence once (sic ones).”

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 programs 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. On a prison visit I have seen such conditions. As appears from the annual reports of Fagan J, the Inspecting Judge of Prisons, these harsh conditions have not been ameliorated.

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, I am satisfied that the ratio in the Stephen’s case ought to be followed.

Accused 1 spent four years and four months awaiting trial. Accused 2 spent two years and four months in prison. Taking the two offences together for purposes of sentence, and leaving aside the period spent in prison awaiting trial, an appropriate sentence would be one of at least 24 years imprisonment. If consideration is then given to the time spent by each of the accused awaiting trial and sentence, I would then impose an effective sentence of 16 years imprisonment on accused 1 and 18 years imprisonment on accused 2.

In the result, the following order is made:

The appeals of accused 1 and 2 against their convictions on the charges of murder and robbery with aggravating circumstances are dismissed.

The sentences imposed on the accused are set aside and replaced with the following:

“Taking both convictions together for purposes of sentence, accused 1 is sentenced to 16 years imprisonment, backdated to 9 February 2004.

Taking both convictions together for purposes of sentence, accused 2 is sentenced to 18 years imprisonment backdated to 9 February 2004.”

_____

I W SCHWARTZMAN

JUDGE OF THE HIGH COURT

I agree:

TM MASIPA

H SALDULKER

Counsel for the State: Ms C E Britz

Instructed by: The Director of Public Prosecutions

Counsel for the First Appellant: Mr C E Thompson

Instructed by: Legal Aid Board

Counsel for the Second Appellant: Mr J D Pretorius

Instructed by: Trevor Jennings Attorneys