S v Rautenbach (164/2012) [2013] ZAGPJHC 104; 2014 (1) SACR 1 (GSJ) (25 March 2013)

REPORTABLE

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

CASE NO: 164/2012

DATE:25/03/2013

In the matter between:

THE STATE

and

JUSTIN PIERRE RAUTENBACH …...............................................................THE ACCUSED

JUDGMENT

INTRODUCTION

In this matter the Court was ably assisted by two learned assessors, Mr van Wyk and Mr Mokoditwa. The judgment that follows is a unanimous decision of the Court.

The accused stands trial on an indictment which charges him with the following five offences:

“Count 1

Murder read with s 51(1) of Act 105 of 1997.

Count 2

Robbery with aggravating circumstances as defined in s 1 of Act 51 of 1977 read with s 51 of Act 105 of 1997.

Count 3

Contravening of s 3 read with s 1, 103, 117, 120(1)(a) and s 121 read with schedule 4 of Act 60 of 2000 – Unlawful possession of a firearm.

Count 4

Contravening of s 90 read with s 1, 103, 117, 120(1)(a) and s 121 read with schedule 4 of Act 60 of 2000 – Unlawful possession of ammunition.

Count 5

Contravention of s 4(b) read with s 1, 2, 13, 17, 15 and 64 of the Drugs and Drug Trafficking Act 140 of 1992 (“the DDTA”) – Unlawful Possession of Drugs.”

The accused, who at all times was represented by counsel, pleaded not guilty to the first four counts and guilty to the fifth count. Having satisfied ourselves that the plea of guilty on the fifth count had met all the requirements of a guilty plea, we appropriately convicted the accused on this charge. However, given that he pleaded not guilty on the other four counts, the trial on those charges commenced, leaving the issue of sentencing on the fifth count to be dealt with after the Court had completed its task of determining whether the State had proven beyond reasonable doubt that he is guilty of any of those charges.

Apart from claiming that the deceased committed suicide the accused chose not to disclose his defence. His approach is countenanced by s 115 of the Criminal Procedure Act No 51 of 1977 (“the CPA”). However, at the commencement of the trial, he made certain admissions in terms of s 220 of the CPA. The admissions were recorded in writing. They were:

“1 That the deceased is the person named in the indictment, to wit, Pieter Cornelius Rautenbach.

That the deceased died on 18 December 2011 as a result of a gunshot wound to the head which he sustained on 18 December 2011 at/near No: 60 Holt Street, Forest Hill in the district of Johannesburg.

That the body of the deceased sustained no further injuries from the time on which the wounds were inflicted on 18 December 2011 until a post mortem examination was conducted thereupon.

That Dr. Shakeera Holland conducted a post mortem examination on the body of the deceased on 19 December 2011 and recorded her findings on Exhibit “B”.

The correctness of the facts and findings of the post mortem examination as recorded on Exhibit “B” by Dr. S. Holland.

That the photographs, sketch plan, and key thereto, Exhibit “C’’, depicts the scene of the crime.”

After the state led all its evidence and closed its case, the accused now faced with certain incontrovertible evidence decided to make further admissions. These are:

“1 The blue and black Adidas takkie collected at the scene (FSG-668677) was forwarded to the Forensic Science Laboratory for DNA analysis.

2 Blue jean collected from the accused (FSG-668677) was also forwarded to the Forensic Science Laboratory for DNA analysis.

3 Both the blue jean and blue and black Adidas takkie contained blood.

4 Blood sample was taken from the deceased (PMK 042375/6) by Dr. Holland as per exhibit C. The same was handed to the warrant officer Mdlalose (Investigating Officer) to be forwarded to the Forensic Science Laboratory.

5 Blood found on both the blue jean and the blue and black Adidas takkie was compared with the Blood sample taken from the deceased.

The result thereof is that the blood found on the blue jean and the blue and black Adidas takkie was that of the deceased.”

Though not spelt out in the admission statements of the accused, it is common cause that the deceased is his late father. He is, therefore, charged, in terms of Counts 1 and 2 of the indictment, with murdering and robbing his father.

The nature of the evidence presented and the manner it unfolded makes it necessary to record the substance of each witness’

testimony. However, not all the evidence presented was relevant or had value in establishing the facts material to the issues in the case. Furthermore, while the evidence is recorded here it bears emphasising that not all of it was admitted. Only the admitted evidence was taken into account in establishing the facts material to the issues.

THE CASE OF THE STATE

The state led seven witnesses in support of its case. Most of the evidence revolved around what happened on the night of 18 December

2011, which is when the father of the accused (“the deceased”) died.

The evidence of Mr Shane Macfarlane (“Macfarlane”)

Macfarlane was a tenant in the home of the deceased. The home is located at No 60 Holt Street in Forest Hill (“the house”).

The accused, too, resided at the house. According to Macfarlane on the night of 18 December 2011, he arrived home at about 21h00. He found the accused and his girlfriend at home. The house was in a shambles, with clothes, bedding and furniture strewn all over. The accused was wearing a T-shirt and jeans but only had one shoe on. There was blood on the T-shirt, on the jeans and on the shoe. He asked the accused where his father was and the accused replied that his father had committed suicide in the nearby park. He reminded the accused, whom he regarded as a close friend, that the accused could trust him and could tell him everything. The accused began to cry and repeated the statement that his father had committed suicide in the park and that his body was still in the park, which was approximately 150m away from the house. The accused’s girlfriend then advised the accused not to say anything more. Macfarlane then decided to leave the premises and spend the night at his girlfriend’s home, which was some distance away.

At approximately 22h00 while he was at his girlfriend’s home, he received a call from the girlfriend of the deceased, who informed him that she was having difficulty making telephonic contact with the deceased as he was not answering his mobile phone. He did not inform her that he was at the house earlier and was informed by the accused that the deceased had committed suicide. Instead he asked his girlfriend to take him back to the house so that he could retrieve some of his clothes for the next day. Upon arriving at the house, he noticed that the car of the deceased was no longer there and that the padlock at the front of

the house had been changed and was locked. He got into the yard through the side passage, went through the garage to enter the

house, and found the deceased lying dead in the garage. Shaken by what he had seen he, nevertheless, was able to go to his room and take his clothes. He immediately went to his girlfriend, who at all times had remained in the car outside, and in a voice and tone that expressed his emotional distress informed her that “Cory (the deceased) is dead”. At this stage the accused and his girlfriend were no longer in the house. He found bedding and linen belonging to the deceased strewn in the yard.

He returned with his girlfriend to her home, where he phoned his employer who advised him to report what he had seen to the police. His girlfriend drove him to the Booysens Police Station, where he reported to the police what he had just seen at the house. The police at the Station radioed a patrol vehicle to visit the house and a while later received a report from the policemen in the patrol vehicle that they had found the body of the deceased in the garage of the house. He was informed that he was a suspect in a possible murder enquiry. The police drove him back to the house. He was told to remain at the poolside, while the police went about their business in the house. At this time, the accused and his girlfriend were already at the house. They were brought there by the police and were locked in the back of the police van. The motor vehicle of the deceased was also brought back to the house. Very soon thereafter the accused was let out of the police van, taken to see the deceased’s body and brought to the poolside by the police. The accused was crying and shouted “Who would do this to my father?”

Macfarlane was taken to the kitchen where a statement was taken from him. While he was in the kitchen, the detective came in and said that they had found two guns, a shotgun and a .303 Rifle gun (“the rifle”). One of the guns was intact while the other was missing a key part. One of the guns was found at the bottom of the pool while the other one was found in the house. Both guns belonged to deceased.

Macfarlane also stated that he was aware that the deceased was recovering from the disease of alcoholism, but was unaware that the deceased also suffered from depression.

During cross-examination he was adamant that he had visited the house on three separate occasions that evening and that he had met the accused on two of those occasions. It was put to him that the accused maintains that he had only met the accused once at the house that night, which was before Macfarlane left to stay at his girlfriend’s house and that the accused was never back at the house after he was arrested at a tavern in Kennedy Street. It was also put to him that the accused denies saying that his father had committed suicide in the park. It was, furthermore, pointed out to him that in his statement written on the same night he had stated that the accused had told him that his father had committed suicide in the street and that his body was still in the street. He indicated that his evidence in Court is correct and that his statement incorrectly recorded what was said to him by the accused. As regards seeing the accused twice at the house on that night he remained adamant that his version is true and correct.

It is our view that cross-examination did not significantly discredit his testimony, and that on the whole his testimony reflected the truth of what he encountered that night. No reason was suggested, or identified, to indicate that his testimony was fabricated, exaggerated or that it misstated any fact. As far as the difference with regard to his statement to the police and his testimony in court is concerned, we deal with this aspect below.

The evidence of Constable Niko Stanley Chauke (“Chauke”)

Chauke is a constable in the South African Police Services (“the SAPS”). On the night of 18 December 2011 he was in the patrol van with colleagues when they received a call informing them to go to No 60 Holt Street, Forest Hill as there was a report of a suicide at the premises. When they arrived at the scene they were confronted by a member of the public who informed them that the son of the owner of the house had told him that his father had committed suicide. He informed them that the son was to be found at a tavern down the road, called Solly Kramers. They went in to the house, found body of the deceased and thereafter went in two police vans to Solly Kramers, only to find that the son had left for another tavern a few hundred metres away in Kennedy Street. They went there and found the accused and his girlfriend.

The accused was naked above the waist and was wearing a pair of jeans and only one shoe. He had splashes of blood and a whitish

substance on his chest as well as blood on his jeans and shoe. Chauke thought that the whitish substance was pieces of bone or

brains. They informed the accused that he was suspected of killing his father and sought permission from him to search the car that was in his possession. He gave them the necessary permission. They searched the car.

They found that the ignition of the car had been tampered with. Two pieces of electric wire were joined to the ignition, indicating that the engine was not started with a key and was, instead, started by joining the two pieces of electric wire.

They found numerous clothing and bedding items strewn all over the car. Chauke noticed that one of the windows was broken and that the glass from the broken window was on the seat and floor of the car. They then found some live shotgun ammunition on the floor. They immediately informed the accused and his girlfriend that they were under arrest. After being informed that they were under arrest, the accused and his girlfriend became abusive. The accused constantly used expletives when addressing them. The police then separated the accused and his girlfriend by placing them in the back of each of the police vans they came with. They were then driven to the house. One of the police persons, drove the car found in the possession of the accused back to house. At the house he noticed that there was broken glass on the floor of the driveway and that it was the same glass that was on the seat and floor of the car.

He left the accused and girlfriend in the back of the police van and went inside the house where he reported to his Sergeant that the accused and his girlfriend were arrested. He was instructed to take them to the Booysens Police Station and book them in. He duly complied with the instruction. At Booysens Police Station, he wrote his arresting statement while waiting for his Sergeant to return from the house.

The cross-examination of Chauke concentrated almost exclusively on the issue of the time spent by Chauke and his colleagues from when they confronted the accused to the time they booked him in at the Booysens Police Station. It was put to him that his evidence that there was broken glass in the deceased’s car and on the driveway of the house would be disputed by the accused, and that the accused was not only insistent that no such glass was found in the car and on the driveway, but that no window of the car was broken at all. It was also pointed out to him that the accused would deny that there was any evidence of “blood, bones or brains” on the chest of the accused at the time of the accused’s arrest. In both cases, (that of the existence of glass and the existence of blood and the whitish substance, “which could be bones or brains”, on the chest of the accused) Chauke stood firmly by his account of the facts.

During his cross-examination it was further pointed out to him that in his arresting statement, which was written immediately after the accused was booked in, he had failed to mention that at the time of the arrest the accused had blood, pieces of bones and brains on his chest, jeans and shoe. He said he was unable to explain why this was left out of the statement. Furthermore, in his statement he stated that there was blood on the bonnet of the car, while in Court he testified that there was blood on the boot. He indicated that his testimony in Court was correct. We deal below with this issue of the discrepancy between the contents of the statement and the testimony in Court.

The evidence of Richard Ian Kevyn Newcombe (“Newcombe”)

Newcombe was a close friend of the deceased. They did a lot of “Do It Yourself” work at their respective houses together. He also knew the accused very well. He was aware that the deceased had a number of problems with the accused, all of which stemmed from the fact that the accused was addicted to drugs. The accused used to steal from his father in order to finance his addiction. The addiction and related conduct of the accused caused the deceased a great deal of pain.

He was aware that the deceased owned two firearms and that on one occasion one of them was fired in the house. He knew that the

deceased always kept these firearms locked in a safe in the garage and would only take them out for cleaning purposes. After the death of the deceased he was allowed by the investigating officer to visit the house. On his visit he found that the hinges of the door of the gun safe had been destroyed by a grinder, thereby allowing the door to be opened without a key.

The deceased kept all his valuable papers in a cabinet in the kitchen and had, before his death, instructed Newcombe to take

control of the cabinet and its contents should anything happen to him. After hearing of the death of the deceased, Newcombe retrieved

this cabinet from the house and took it to his own home. In the cabinet he found a document dated 10 December 2009, authored by the accused and deposed to him before a commissioner of oaths at the Booysens Police Station. The document is a note addressed to the deceased. In the note the accused expresses remorse for his unacceptable conduct and promises to reform his behaviour.

He found many tablets in the cabinet, some of which were anti-depressants. He also found a letter addressed to the daughter of the deceased, the contents of which indicated to him that the deceased was depressed. The letter was undated. He gave the letter

to the daughter of the deceased.

The cross-examination of Newcombe did not in any way damage or discredit his evidence.

The evidence of Michael Richard Ronaldson (“Ronaldson”)

Ronaldson is the husband of the deceased’s stepdaughter. He went to the house on 5 January 2011 to clean the property in order to make it presentable for a sale. He cleaned the garage where the body of the deceased was found. While cleaning the garage, he found blood splattered all over the walls and floor. He also found parts of the deceased’s skull on the floor. He found three holes in the roof, one was rusted, while the other two were fresh. These holes were on the roof very near to, if not directly above, where the body of the deceased was found. He cleaned the yard, and in the course of so doing found the barrel of the gun in the hedge. He called the investigating officer and told him of his find. The officer came and took possession of the barrel of the gun.

The evidence of Ronaldson was uncontroversial.

The evidence of Joseph Jabulani Yende (“Yende”)

Yende is a warrant officer in the SAPS. He was one of the assigned detectives tasked with investigating the death of the deceased. On the evening of 18 December 2011 he was called and informed that there was a report of an apparent suicide within his jurisdiction.

He immediately went to the Booysens Police Station, where he met Macfarlane, who informed him that he lives at the house with two other persons, the accused and his father. He was at the house earlier where he met the accused who was with his girlfriend. The accused informed him that his father had committed suicide.

He went to the house with Macfarlane. He remained at the house until the early hours of the morning of 19 December 2011 collecting

evidence. On arrival at the house they saw the deceased’s car parked in the street. Macfarlane informed him that this car was parked in the driveway when he left the house earlier and that there was broken glass in the driveway.

He looked at the car and saw that the ignition was damaged and that there were two electric wires connected to the ignition, indicating that the engine was started by joining the two wires together. There were clothes and bedding strewn all over in the car, including in the boot. He saw four live rounds of ammunition on the seat in the car.

He went into the garage, where he found the body of the deceased. Two boxes containing bullets were found near the body. Blood as well as human flesh was stuck to the wall. There was a small hole in the wall and the cement from the wall had fallen onto the ground. This hole looked like it was caused by a bullet. From there he went into the house. He found the house in a mess. There was clothing and bedding thrown all over the floor. He found a safe that had been forced open with the use of a grinder.

There was one shoe with blood on it in one of the rooms. He was taken to the bedroom of the accused, where he found some green

tablets lying on the floor. In the kitchen he found a head of a broken bottle containing the drugs cannabis and methaqualone.

Thereafter he went outside where he found two live bullets of the rifle lying in the yard, one was near the pool. He found a gun at the bottom of the pool. When the gun was retrieved from the pool, he saw that the lever used to direct a bullet from the barrel into the chamber was moved, but that it had failed to transfer the bullet into the chamber. This meant that the gun was “half-cocked”. The gun removed from the pool was the rifle and the live bullets retrieved were for this gun.

Whilst Yende was taking note of all of his findings in the house, the accused was brought in. The accused wore jeans, had one shoe on only and was naked above the waist. He appeared to be drunk, was unco-operative, was walking “up and down” and said: “Look at me, do you think I can kill my father.” During this time Macfarlane was with him at the house and had witnessed the actions of the accused.

Much of Yende’s cross-examination focussed on what Macfarlane had told him that night. His responses confirmed some aspects of the testimony of Macfarlane, such as, that he had come to the house earlier, met the accused and his girlfriend, was told by the accused that his father had committed suicide in the street, that he left the house but decided to return to collect clothes. In addition, upon his return, he found that the deceased’s car had been moved and the deceased was lying in the garage. During cross-examination Yende admitted that Macfarlane was allowed access to the car of the deceased and was allowed free access to the entire house, even though it was now identified as a crime-scene. It was also pointed out to him that there were some significant differences between his testimony in Court and the statement he wrote in the early hours of 19 December 2011. I deal with this issue below.

The cross-examination of Yende showed that the police were not very careful in the way they protected the evidence at the scene: they allowed Macfarlane and the accused to walk around the scene; they allowed Macfarlane to touch the car, which was the subject of one of the crimes the accused is charged for, i.e. theft, and which contained items that formed the subject matter of two other crimes the accused is charged for, i.e. robbery and unlawful possession of ammunition.

The evidence of Given Msibi (“Msibi”)

Msibi lives in a house neighbouring that of the deceased and the accused. On 18 December 2011 he was woken by a loud noise. He looked out of his window, saw nothing, and so decided to return to bed. A few hours later he heard loud banging. He went out of his house and entered the street, where he discovered that the banging was caused by the girlfriend of the accused who was locked up in a police van, and who was banging against the sides of the van. She was also shouting racist statements. He saw another neighbour who informed him that his neighbour at 60 Holt Street had been killed. He went to the door of the garage at 60 Holt Street and saw the body of the deceased in the garage. He was, however, stopped by a policeman from going into the garage. The policeman asked him who he was and whether he knew what had happened. He answered by saying that in his opinion the accused

had killed his father. He holds this opinion because he knows the accused to be addicted to the consumption of drugs. He had, on more than one occasion, advised the accused to stop consuming drugs but this advice failed to yield any positive result. He also knew that the accused had stolen many tools of the deceased and pawned, or sold, them in order to purchase drugs.

Further he testified that he knew both the accused and the deceased well. To the best of his knowledge the deceased would never grant the accused permission to drive his car without the deceased being present,

On the night of the 18 December 2011, while he was at No 60 Holt Street, he met the accused there. The accused wore a pair of jeans, was naked above the waist and had only one shoe on. There was blood on the body of the accused and on his jeans and shoe. The accused was emotionless, and was in the property while the police were gathering evidence.

The evidence of Freda Bentley (“Bentley”)

At the time the deceased was shot Bentley was in an intimate relationship with the accused. She is the person referred to as the girlfriend of the accused during the testimony of Macfarlane, Chauke and Msibi. She was in the house at the time the deceased met his death. Her testimony was that on the night of 16 December or the early hours of 17 December 2011 she went to the Forest Hill Hotel to purchase a drink, where she met the accused. He was driving the deceased’s car. The engine of the car was started by joining two pieces of electrical wires that were attached to the ignition. The accused saw her and ordered her to get into the car. At that point she was in a relationship with the accused, which was on the verge of being ended. The relationship had commenced six months before that. At first she refused to get into the car, but he insisted she did so. She complied with the instructions of the accused and got into the back seat of the car as the front passenger seat was occupied by one Deon Mundell (“Mundell”). Also in the back seat was one Arthur (“Arthur”) who, it was clear to her, was intoxicated and high on drugs at the time. The accused, too, was intoxicated and high on drugs. Mundell left them. The accused drove the car to the house.

The accused is a regular consumer of drugs and consumes an extensive amount of alcohol. Whenever he consumes drugs, or alcohol, or both, he becomes very aggressive.

The accused had a lot of motor-car oil on his shirt and body. Bentley put the accused in the bath. In the meantime, Arthur was put onto the bed of the accused, but had placed himself under the covers. When the accused came out of the bath he found Arthur

sleeping inside his bed. He accused her of having engaged in illicit conduct with Arthur and began slapping her. Arthur was moved on to the couch by the accused and herself. Later that morning. Arthur recovered somewhat from his stupor and left the house. She and the accused remained there for the whole of that day as well as for the whole of the next day.

During the whole of the 17 December 2011 she consumed tranquilizer tablets, the trade name of which is Brazipam, with whiskey. The accused too, consumed these tablets with whiskey. On the 18 December 2011, at around 11h30, the deceased arrived at the house and soon thereafter there was a heated argument between him and the accused about the car of the deceased. The argument was so intense that it continued throughout the afternoon. She was instructed by the accused to remain in his room, and out of the way so that she would be uninvolved in the argument between them. She complied. She fell asleep. At one point she awoke to go to the bathroom and found that the accused had locked the deceased out of the house. The deceased was trying to get into the house. He had a spade in his hand. She cannot recall for how long the deceased struggled to get in, but he eventually managed to regain entry. In the meantime, she had returned to the accused’s bedroom and passed out as a result of having consumed a number of Brazipam tablets with whiskey.

Later that evening, the accused woke her up and told her that the deceased had committed suicide. She got up and went to the garage where she saw the deceased’s body. She told the accused to call the police. They went back into the house where the accused took hold of the telephone, but after a short moment put it down and said that he could not make the call as there was “no airtime” available to make the call. She said to him that they should go to the police station to report the matter. He went back to the garage. She told him to leave everything until the police arrived, but he came out of the garage with four bullets in his hand. He gave it to her and said she should put it into the car. She put it in the cubby-box next to the front passenger seat and came back. Upon her return, she found the accused holding the rifle gun in his hand, with the front pointed at his chin. He said that he is going to commit suicide as he had just lost the only person in the world who cared for him, resulting in him “being all alone” in this world. She scolded him and took the rifle out of his hand and threw it into the swimming pool, where it was later found by the police.

At this point the accused went into the deceased’s room and began ransacking it. He collected bedding and clothes from the room and started putting them in the car. He instructed her to follow suit. He told her that he intended to sell the bedding and clothes in order to raise money to pay for petrol. They commenced leaving the house. While driving out, they were confronted by a person from the nearby church who had come to enquire what had happened. The accused informed him that the deceased had committed suicide, and they then continued to drive away. She cannot recall if the accused wore any clothes above his waist. The accused drove to a tavern called Solly Kramers. He had about eighteen rands (R18.00) on his person. They went in. The accused bought “a half-jack” of sherry. They both drank the sherry and went to another tavern run by one Freddie (“Freddie”), who was also a pawnbroker. The accused had previously sold or pawned goods to Freddie. Some of the goods previously sold or pawned by the accused to Freddie belonged to the deceased.

The accused offered the bedding and clothes he had just stolen from the deceased’s bedroom to Freddie in return for cash. Freddie was not interested in accepting these goods. Freddie informed him that he was only interested in the purchasing and pawning of tools. While the accused was still negotiating with Freddie, the police arrived and arrested the accused and herself. They were each placed in different police vans and driven back to the house. At the house, she was kept locked in the van. They were kept at the house for about sixty minutes, before they were taken to the Booysens Police Station where they were charged and locked in the cells. The next morning she was let out of her cell to go and take a shower. On her way to the shower, she passed by the cell of the accused who was standing behind the grille gate. He asked her for a cigarette. She gave him a box of cigarettes. He said to her, “do you really think I would do that. I loved my father?” She replied that she did not know what to think and returned to her cell.

She said that throughout the day of the 18 December 2011 she did not see Macfarlane. Thus, she denied that Macfarlane had come to the house that evening and confronted her together with the accused.

Her cross-examination did not damage her testimony, nor did it show that any material aspect of her evidence was unreliable. Much of the cross-examination concentrated on putting the accused’s version to her, which version is that he did not meet her on the night of 16 December or early hours of 17 December at Forest Hill Hotel; that she had, of her own accord, come to the house at about 09h30 on 17 December 2011 and stayed there at her whim until they were both arrested; that she was not correct in her claim that he assaulted her on the 17 December 2011; that she was incorrect about him being taken to the house after being arrested; that he did not lock the deceased out of the house that day; and finally, that he denies knowing any person named Mundell. After being alerted to all these differences between her testimony and the version of the accused she remained adamant that his version is not consistent with the truth.

THE FORENSIC EVIDENCE

On 19 December 2011, a post-mortem was conducted by Dr Shakeera Holland (“Holland”) who is employed as a Specialist in Forensic Pathology. Her conclusions are:

“4. External appearance of body:

Wound 1: There is a “burst head”- multiple defects and lacerations of the head with underlying comminuted fractures of the head and facial skeleton. The brain is completely herniated and brain fragments are received with the body. Parts of the skull are absent and not received with the body. There is no burning, soot or tattooing identified.

Due to the extent of the injuries and the absent parts of the skull accurate entrance and exit wound could not be determined.

Wound 2: There is a right periorbital haematoma (purple).

Wound 3: There are pieces of glass on the body.

Wound 4: There are no lacerations around the mouth. There are small contusions and lacerations in the inside of the lower lip.

Wound 5: There is a lipoma of the right upper back.

5. Skull & Scalp: See paragraph 4. There are extensive scalp haematomas and subaponeurotic haemorrhages.

6. Intracranial contents: The brain fragments retrieved show evidence of extensive haemorrhage and lacerations. There are pieces of glass and bone embedded in the brain fragments retrieved.

OTHER OBSERVATIONS:

No comment can be made on the distance of fire.

X-ray examination does not reveal any bullets, bullet fragments or ammunition.” (italics in original)

After the forensic post mortem analysis was completed a Professor Ericka Noelle L’Abbe (“L’Abbe”), a physical anthropologist, examined the skull of the deceased and attempted to piece the fragments together. She also analysed the damage to the bones, and upon evaluating the nature of the injuries sustained by the deceased opined on the possible entry of the bullet. She rendered a report which detailed her conclusions, which, inter alia, are:

The damage to the cranium of the deceased is “a consequence of a high velocity, ballistic injury”;

The entrance of the high velocity ballistic object “may have been intra-oral via the hard palate.” The support for this conclusion is “the complete obliteration of the palate, ethmoid and sphenoid bones. This may indicate that the concentration of energy was underneath and behind the face - within the palate, ethmoid and sphenoid regions.” Furthermore, the conclusion is bolstered by the fact that “(w)hile not all of the cranial fragments were recovered at the scene, information from the available bone fragments indicates an internal failure in tension and external compression such that the bones of the face and cranial vault levered- outwards and upwards, anteriorly, laterally and superiorly.”

The conclusions of both Holland and L’Abe were accepted by both the state and the accused.

However, while Holland came to the conclusion that “(d)ue to the extent of the injuries and the absent parts of the skull accurate entrance and exit wound could not be determined,” L’Abe conjectures that the entrance wound “may have been intra-oral via the hard palate.”

While at first blush it may appear that their respective conclusions were mutually exclusive, in actual fact that really is not the case. Dr Holland was not engaged in piecing together the fragments of the skull, she was commenting on the state of the entire body, including the cranium, of the deceased as presented to her a day after he was shot, whereas Professor L’Abe was engaged in collecting and piecing together all the fragments of the cranium. The correct way to read the two reports is to view them as complimenting each other. Both the state and the accused accepted this to be the case.

As soon as Bentley completed her testimony, the State sought the admission of the reports constituting the aforementioned forensic

evidence. The accused accepted the evidence, thus rendering it unnecessary for the State to call each of the experts who furnished

the reports.

The State then closed its case.

THE APPLICATION FOR DISCHARGE ON COUNT 1 OF THE INDICTMENT

The accused immediately applied for a discharge in terms of s 174 of the CPA on count 1 of the indictment. The application was opposed by the State. Detailed submissions were received from both counsel and extensive discussion between each of the counsel and the Court ensued in the course of the application being entertained.

The application was dismissed.

Prior to the application being dismissed, but without withdrawing the application, the accused applied for Bentley to be recalled for further cross-examination. The basis for the application was that Mr Guarneri, counsel for the accused, had failed to comply with his instruction to put some crucial aspects of the accused’s version to her for comment. The application was opposed by the State. Mr Guarneri stated that on the night prior to the cross-examination of Bentley he suffered from insomnia and as a result had failed to comprehensively cross-examine her. In particular, he had failed to put to her a crucial aspect of the

accused’ version that when she accompanied him to the garage after he had woken her, she saw the rifle under the left arm of the deceased. He also wished to put to her that the argument that ensued between himself and the deceased on the 18 December 2011 was about the fact that he had pawned the deceased’s lawnmower the day before, and that the act of pawning the lawnmower was at the instance of herself. It is difficult to understand how Mr Guarneri could forget to put such fundamental aspects of the accused’s version to Bentley. Nevertheless, Mr Guarneri was asked to identify all the issues he wished to further cross-examine Bentley on. He did so, and identified twelve issues he wished to canvass with her if the application to recall her was successful. Some of these were issues that were canvassed during the application by the accused for a discharge in terms of s174 of the CPA was being argued.

The application was vigorously opposed by Mr Gcaba, the prosecutor, who submitted that the application was directed at curing the difficulties identified during the application for a discharge on Count 1 of the indictment, and for this reason alone it should be dismissed. There is substance to this submission. However, it is insufficient ground to dismiss the application. Whatever the motive for the application, it nevertheless had to be considered on its merits and if there was value in the application, it should have been granted.

Section 35 of the Constitution of South Africa Act No 108 of 1996 (“the Constitution”) guarantees a right to a fair trial for the accused. Section 35(3)(i), in particular, guarantees the accused a right “to adduce and challenge evidence”. The accused was requesting an opportunity to adduce evidence regarding the location of the rifle when Bentley saw the deceased, and requesting an opportunity to challenge certain other aspects of her evidence, which he failed to do when she was cross-examined.

The State was not able to show that it would suffer irreparable prejudice should Bentley be recalled in order to furnish the

evidence the accused believed was essential to his case.

The right to a fair trial, accorded to the accused by s 35 of the Constitution, is, in my view, fundamental and absolute. It is not subject to any qualifications. This right includes the right to recall witnesses for further cross-examination.1

Hence, despite the fact that the explanation given for wanting to recall Bentley was not detailed enough, and therefore not entirely

satisfactory, the value in the application is to be found in the duty to ensure that the right of the accused to a fair trial, as enunciated in s 35 of the Constitution, is given practical meaning. Accordingly, the application was granted.

THE FURTHER CROSS-EXAMINATION OF BENTLEY

It was put to Bentley that the accused disputed that she was forced to stay in the room of the accused on 18 December 2011. She insisted that her version was correct. It was put to her that the argument between the accused and the deceased that afternoon was about the fact that on the previous day the accused had, upon her instigation, pawned the deceased’s lawnmower and the deceased was upset about this. She did not deny that they may have pawned the deceased’s lawnmower the previous day and that she was party to the decision to pawn the said lawnmower, but insisted that the argument, which was intense, was about much more than just that single issue. It was put to her that the deceased had come to the room where she was sleeping and spoken to her. She agreed with this and said that the deceased wanted to know from her where and to whom did the accused sell or pawn his tools. She informed the deceased that she did not know. It was put to her that the accused had also passed out that afternoon. She replied that she did not recall him passing out. It was put to her that when she entered the garage to see the body of the deceased she saw the rifle under the arm of the deceased. She denied this. During her re-examination she stated that if the rifle was under the arm of the deceased, she would have certainly seen it. It was put to her that the accused had acquired the rifle from the garage. She replied that she could not comment as to where he got it from but that when she returned from the car he had already had it in his hand. It was put to her that her version that she saw the accused on Friday 16 December 2011 outside the hotel was untrue as the accused was with Macfarlane at home. She insisted that her version was true. Finally, it was put to her that on 19 December 2011 she was present at all times with the accused and the police at the house and she saw the accused direct the police outside to search for the missing part of the shotgun. She denied this and insisted that she was in the house all the time.

The further cross-examination of Bentley did not result in the discrediting of her evidence. Nor did it elicit the evidence sought by the accused: he wanted to show, inter alia, that she had seen the rifle under the arm of the deceased when she came to the door of the garage with the accused, after the accused woke her and told her that the deceased had committed suicide. This, she claimed not to have seen. Instead she said that the only time she saw the rifle was when the accused held it in his hand and threatened to shoot himself. That was after he had given her four live bullets to put into the car.

THE EVIDENCE PRESENTED ON BEHALF OF THE ACCUSED

The accused testified and called six witnesses. Five of those witnesses had dealings with deceased, and one was the policeman who conducted a forensic examination of the rifle and the shotgun found at the house. I now look at each of their respective evidence.

The evidence of the accused

The accused stated that he is 37 years of age. His parents separated when he was in Standard 2 and about 9 years old. His two siblings went to live with his mother and he chose to live with his father, the deceased. He lived with his father until he was in Standard 6 when he was moved to live with his grandmother. He was later put into a children’s home as his grandmother was too old to look after him. After that, the deceased arranged for him to do an apprenticeship in the diamond industry, but he failed to finish the apprenticeship. Instead he went to live in the United Kingdom for nine years before returning to South

Africa in 2007. Upon his return he went to live in Cape Town. He was unable to find work there so he came to Johannesburg to live with the deceased, which he did until 18 December 2011 when he was arrested and held in custody awaiting trial. He began consuming alcohol from the age of 12 and had taken the drugs mandrax and ecstasy from the age of 18 years. He subsequently became addicted to these drugs.

He was aware that the deceased had bought the house with his second wife who was late, and her children had inherited the house. The deceased had obtained a contractual right to remain in the house until his death or until he chose to leave. The deceased told him that he was depressed as a result of being retrenched, and because he had financial problems. The deceased told him that he would rather “blow himself up” than go back to the “caravan days”. He was told that after being retrenched the deceased invested two hundred and fifty thousand rands (R250 000 – 00) in a partnership with one Eddie Holder and that investment was going sour. The deceased was a recovering alcoholic and had not consumed any alcohol for at least 16 years. The deceased was aware of his addiction to drugs and had told him that he was wasting his life away. On more than one occasion he stole the property of the deceased in order to feed his habit. His addiction, as well as the fact that he stole from the deceased to feed his habit, was one other cause for the deceased becoming depressed. The deceased was proud of his achievement in overcoming his addiction to alcohol and told the accused that it was possible for him too to overcome his addiction to drugs and alcohol. In July of 2011 he broke into a safe belonging to the deceased and stole approximately twenty-two thousand rands (R22 000-00) from the deceased. As a result of his conduct there was a lot of conflict between him and the deceased. This conflict was, at times, temporarily resolved when he promised to improve his ways, but would flare up again when he returned to his unacceptable ways.

He said that for some time he was an abuser of alcohol and narcotic drugs.

He denied meeting Bentley on the night of 16 December 2011 outside Forest Hill Hotel while being in the company of two other persons, Arthur and Mundell. In fact he denied even knowing who Mundell is. He spent the whole of the night of 16 December 2011 at home in the company of Macfarlane. He denies assaulting Bentley on either the 16 or 17 December 2011. On the morning of 17 December Bentley came to the house. This was just after he had transported the deceased in the deceased’s car to Peggy’s house (the lover of the deceased).

Bentley persuaded him to sell the deceased’s lawnmower, which he did for two hundred rands (R200 – 00). They purchased drugs and whiskey with the money and returned home. Bentley and he consumed the drugs together with whiskey and remained at the house on their own for the entire day and night.

The next morning the deceased arrived home. His breath smelt of alcohol. He accused the deceased of consuming alcohol, although he had not seen the accused ever consume alcohol. The deceased denied consuming alcohol. The deceased complained of Macfarlane not paying his rent. To his surprise, the deceased gave him some money and asked him to go and purchase a bottle of whiskey. He did so and upon his return the deceased poured them each a drink, which they consumed. Soon thereafter he and the deceased started to argue. They argued about the fact that he stole the lawnmower and pawned it, but they soon resolved the argument with him promising to have it returned by the next day. Later, he saw the deceased go into his room to converse with Bentley. He, in turn, decided to consume a number of Brazipam tablets with whiskey and passed out on the couch in the lounge.

He awoke at around 21h30-22h00, wearing nothing but a pair of boxer shorts. He walked into the garage where he found the deceased lying in a pool of blood. He immediately ran to his room to wake Bentley up, and told her that the deceased had committed suicide. She accompanied him to the garage. She stood at the door of the garage, while he went up to the body of the deceased which was well inside the garage. He lifted only the shoulder of the deceased and saw that his face was completely “blown off”. The rifle was under the arm of the deceased. He removed it and tried to shoot himself, but was prevented from doing so by Bentley who took the rifle from his hand, went to the swimming pool and threw it inside the pool.

He claimed Macfarlane did not come to the house at all during the time he was there on that day. He claimed further that he had caused the hole in the safe on an earlier occasion at the instance of the deceased who had lost his keys to the safe. The deceased had shown him how to make a hole in order to open it.

He attempted to telephone the police to report the suicide but the phone was inoperative there being “no airtime” left. Not thinking clearly he went to the room of the deceased to look for his money, which he had given to the deceased. He was unable to find the money. He put on a pair of jeans as well as his shoes. He remained naked above the waist. He then began taking the clothes and other belongings, such as bedding, of the deceased and placed them in the car. He also instructed Bentley to do the same. He told her that they should take these goods and try to sell or pawn them in order to obtain money to purchase petrol. He wanted to purchase petrol in order to go to the police station to report the suicide of the deceased.

He denied instructing Bentley to put four bullets of the shotgun in the car. He searched in vain for the keys of the car. As he was unable to locate the keys of the car he decided to “hotwire” the engine. As far as the broken window is concerned his version is that it was broken a month before as a result of an accident caused by the deceased. He also denied that there was any broken glass on the floor of the driveway. After starting the engine he reversed the car out of the gate, got out and locked the gate and immediately drove a few hundred metres to the tavern, Solly Kramers.

He was still naked above the waist. He had eighteen rands (R18 – 00) on him. At that point he met an employee of the nearby church, a Mr Aaron (“Aaron”). He told Aaron that his father had committed suicide and that Aaron should phone the police and inform them of this fact. He did not wait to see if Aaron did this. Thus, he claimed that the evidence of Bentley that they met Aaron at the gate of the house as they were leaving is incorrect. He and Bentley went inside Solly Kramers. He

bought a “half-jack of sherry.” They both drank it. He offered to sell the property of the deceased to the bartender. The bartender declined the offer. He did not tell the bartender about the suicide or even seek his assistance in informing the police. Instead, as he was unable to secure the sale of the deceased’s property, he immediately left and drove a few hundred metres to another tavern, known as Freddies, in Kennedy Street. Freddies is owned by Freddie. He went inside and offered to sell the property of the deceased to Freddie who declined the offer. While he was still there, the police arrived and arrested him. He asked the police why he was being arrested, and in response the police assaulted him.

He and Bentley were placed inside the back of the police van and driven to the police station, where he was booked, charged and

locked in the holding cells. He denied being driven in a separate van from the one Bentley was transported in. He denied being taken back to the house and, therefore, denied meeting any of the police officers or Macfarlane there after his arrest.

The next day he and Bentley were taken to the house. They were handcuffed together. At the house he assisted the police in their

search for the missing part of the shotgun. He said that during this search he asked for the handcuffs to be removed, which was done. Together with the police, he searched not only the inside of the house, but also the outside yard. Thus, he denied the version of Yende that he only directed the police’s attention to areas within the house in their search for this missing part of the shotgun.

The cross-examination of the accused exposed some serious problems with his testimony as a whole, and undermined his credibility as a witness as well as the reliability of his evidence.

He agreed that the only time he presented some detail of what happened on 18 December 2011 at the house was when he testified at this hearing, and that he had declined every opportunity availed to him previously to present this detail. He further agreed that he had failed to put his full version whilst the States’ witnesses were being cross-examined, and that he had only put to each state witness that aspect of his version that dealt directly with that witness’ testimony. Furthermore, during the cross-examination numerous contradictions in his testimony were highlighted and he was given an opportunity to clarify these but failed to do so. He was extremely evasive in his answers. He could not explain numerous gaps that existed in his account of what happened on 18 and 19 December 2011. In his account every witness of the State was, in one way or another, deliberately

untruthful to the Court. Yet he could not explain why this would be so. There were some glaring problems with his testimony, such as for example:

he insisted that he did not see Macfarlane on the evening of 18 December 2011, and that Macfarlane’s claim that he had told Macfarlane that the deceased had committed suicide was a fabrication. Yet the uncontested evidence was that it was

Macfarlane who, after hearing this from the accused, had contacted the police and told them of his claim, which prompted the police to send a team to the house to investigate;

he insisted that he was with Macfarlane on the night of 16 December 2011, yet he failed to put this to Macfarlane when Macfarlane

testified;

he insisted that he was not taken back to the house immediately after being arrested on the night of 18 December 2011, yet all the policemen, Macfarlane and Bentley testified that he was taken there;

he could not give a sensible explanation as to why he did not drive directly to the police station and report the deceased’s

death, and instead drove to a tavern to buy a drink of alcohol when there was whiskey in the house which, according to him, he had bought that morning with money given to him by the deceased;

his explanation that he took the bedding and clothes of the deceased in order to purchase petrol so that he could go to the

police station and report the death of the deceased does not make much sense when regard is had of the fact that he had eighteen

rands (R18-00) on him. This would have been sufficient for him to buy enough petrol to transport him to the police station, if he really believed that there was insufficient petrol in the car. Moreover, he travelled to the tavern without any difficulty and to Freddie’s in Kennedy Street, and only after that was he intending to go to a petrol station. In the meantime, the police had come, arrested him, driven the car back to the house and then to the police station. Thus, there was more than sufficient petrol in the car for him to drive it directly to the police station;

at first he denied that the window of the deceased’s car was broken, but, when the evidence of this appeared to be irrefutable,

he changed his version and said that the window was broken a month before 18 December 2011. It was pointed out to him that the photographs of the car taken on that evening show the pieces of the broken window still lying inside the car, which according to his version would mean they were left there for a month. In response, he claimed that the pieces were never removed because he had stolen and pawned the deceased’s vacuum cleaner a month ago. This version, it was clear, was fabricated during the cross-examination.

I have no doubt that most of the accused’s version was manufactured along the way as the evidence against him was being

presented. I hold that from the outset he did not take the Court into his confidence. Moreover, he changed his version as time went on, and as the evidence unfolded. One example of this is that during the cross-examination of Chauke he insisted that there was no broken glass in the driveway of the house and in the motor vehicle belonging to the deceased. He also denied that the window of the car was broken. As soon as the evidence became incontrovertible, which was only when the photographs of the car was presented (and they were presented at his instance), he changed his version and said that the window was broken a month before by the deceased. He also said that the broken pieces of glass in the car were left for all that time because he had stolen the deceased’s vacuum cleaner and pawned it in order to purchase drugs. Thus, he deliberately misled the Court and Chauke, and further accused Chauke of being untruthful with the Court when he knew . He failed to put to Macfarlane that he was with Macfarlane at the house during the entire night of 16 December 2011, but put this version up after Bentley testified that she had met him with two other persons at Forest Hill Hotel that night. Furthermore, he failed to put to her that she saw the rifle under the arm of the deceased and only realised the failure to elicit this evidence from Bentley after the s 174 application was being considered. This failure resulted in the recalling of Bentley. It must be noted that while all the State’s witnesses, including Bentley, were being cross-examined his counsel constantly interrupted the cross-examination in order to take full instructions from him to ensure that his full version was canvassed with the witness.

According to the accused, all the State’s witnesses failed to tell the truth to the Court – each one of them had lied in one or other respect. It was only he who told the truth. However, apart from the contradictions in his testimony it is the improbabilities of his version that exposed his testimony to be a manufactured web of deceit. Thus, to the extent that his evidence was contradicted by the witnesses for the State and in one case by his own witness (Peggy stated that the window of the motor vehicle of the deceased was not broken one month before the deceased’s death as claimed by the accused, and her evidence was never challenged by him.), In the result, I have no hesitation in rejecting his evidence and accepting that of the other witnesses.

The evidence of Dr Miriam Matsidiso Modise (“Modise”)

She is a doctor employed at the South Rand Hospital (“the hospital”). The deceased was an out-patient at the hospital for some time. The deceased visited the hospital on 25 October 2011, and claimed to be depressed. She prescribed a course of Fluoxitine (trade name is Prozac) and Oxazipam (trade name is Puratta) tablets as treatment for his depression. She only prescribed a course of fourteen tablets of Oxazipam. He was to take one tablet every two days, which means that the course would last for twenty-eight days. She did not thoroughly examine the patient, as she was merely giving him “maintenance treatment”. The patient told her that he was depressed and she noticed from his hospital records that this medication was previously prescribed for him. She decided to continue with the medication.

She stated that if she had known he was a recovering alcoholic she would not have prescribed Oxazipam as it has a sedative effect, and if it is consumed with alcohol its effect would be harmful to the patient.

She said that if someone took many of these tablets with alcohol, the effect could be fatal, but at the very least that person would be “asleep for at least ten to twelve hours”

The evidence of Dr Nompumelelo Hermina Dlova (“Dlova”)

She, too, is a doctor employed at the hospital. The deceased visited the hospital on 27 January 2010 and was attended to by her. He informed her that he was depressed and that he “felt suicidal”. She recorded this as the main complaint of the deceased.2 On examination she concluded that he was stable. Nevertheless, she referred him to the Johannesburg General Hospital (“Johannesburg

General”), in order for him to consult a psychiatrist. She has no knowledge as to whether he went to Johannesburg General and was seen to by a psychiatrist.

She confirmed that the consumption of Oxazipam with alcohol could cause serious harm to the patient: in her words the effect would be “detrimental.” She could not be certain of the exact physiological or neurological effect, but pointed out that both alcohol and Oxazipam have a direct effect on the “central nervous system and on the brain.”

During cross-examination she stated that when the deceased came to the hospital he said that his medical aid funds had been exhausted

and that he needed medication for his depression. She stated further that in her view the deceased was making a serious effort to overcome his depression and that there was no need to either increase the dosage of the medication already prescribed or to

replace it with more potent medication.

The evidence of both Modise and Dlova was uncontroverted.

The evidence of Mrs Sharon Newcombe (“Mrs Newcombe”)

Mrs Newcombe is the wife of the witness for the State referred to above as Newcombe. In order to avoid confusion between the two it would be appropriate to refer to her as Mrs Newcombe.

Mrs Newcombe testified that together with her husband she found a letter among the belongings of the deceased which was undated and which she and her husband assumed was written by the deceased. The contents of the letter indicated that the deceased was depressed. She gave the letter to the daughter of the deceased. She testified further that she had developed a close relationship with the deceased as a result of their shared experience of having to deal with their respective children becoming addicted to narcotic drugs. They both suffered immense pain as a result of having to see their children battle with this scourge. As a result, they confided in each other. They both agreed that whatever happened each of them should stand by their respective children rather than abandon them to their suffering.

She testified further that in March 2009 the deceased was depressed about losing his job, and that he was under a lot of pressure because of financial strain. In this regard she confirmed what the doctor attending to him on his visit to the hospital had noted in the hospital record. However, in her view, the deceased, like herself, suffered from “chronic depression”. The depression of the deceased was exacerbated by the fact that the accused stole his tools and either pawned or sold them in order to feed his addiction to narcotic drugs. The accused had at some point stolen about Twenty Thousand Rands (R20 000-00) of the deceased. This he did by breaking into the safe of the deceased. This caused the deceased great pain. She was also aware that there was often conflict between the accused and the deceased prompted by the accused’s conduct, and that on one of these occasions the deceased had possession of one of his guns and, in the course of threatening the accused, had fired it, resulting in a bullet penetrating the ceiling of the house. After that incident, the accused had agreed to attend a drug rehabilitation centre in order to overcome his addiction.

However, she only saw the deceased twice in 2011. The last time she had any meaningful conversation with the deceased was in March 2011 after that she only met him in passing “in the shops.”

She believed that the deceased had commenced drinking alcohol. The source of her belief rests in text messages (also referred to as “SMS’s”) she received from the “girlfriend” of the deceased, Peggy.

The evidence of Constable Mogale Freddie

He testified that he is employed in the SAPS as a photographer and that on 19 December 2011 he attended at the house in order to take photographs of the scene. All the photographs presented as evidence were taken by himself, and they truly reflected what he found at the scene. It is not clear why the accused saw it necessary to call him to testify.

The evidence of Lieutenant Colonel David Stefanus Landsberg Pieterse (“Pieterse”)

Pieterse has been employed in the SAPS for 19 years and has been working in the ballistics division since 1998. In the course and scope of his duties he was required to examine, inter alia, the rifle and the shotgun belonging to the deceased and one .303 Calibre fired cartridge case. He came to the conclusion that the cartridge case belonged to the rifle and that it was from the same gun. Having established this, he came to the conclusion that it was a shot from this gun that had inflicted the fatal wound on the deceased.

He had examined the pictures of the scene where the deceased was found and of the position of the body. He was of the view that there is nothing untoward about the deceased’s legs being crossed and his arms being folded. In his view a shot through the mouth of the deceased from this rifle would have immediately immobilised the deceased and could have resulted in the deceased falling forwards as depicted in photograph 7. This is the photograph that depicts the true position of the deceased when he was first found. Having regard to the photographs of the scene, the wound inflicted on the deceased and the fact that it was the rifle that was used, he came to the conclusion that it was not possible on that evidence to say whether the deceased had committed suicide or was murdered.

He further stated that primer residue would be discharged from the release of the bullet and that this residue would fall on the finger that was used to pull the trigger. Some of it could also fall on the body of that person. However, it was easy to remove this residue and even if it was not deliberately removed it would, nevertheless, disappear if the finger was used to touch other objects and if the clothing of the shooter came into contact with other objects. Thus, the non-existence of primer residue on any person or object is not conclusive of any fact.

Finally, according to the forensic report compiled by him as well as the forensic report compiled by one Maponya,3 the rifle and the shotgun are firearms as defined in the Firearms Control Act No 60 of 2000.

The evidence of Elizabeth Ann Marshall

Ms Marshall is also known as “Peggy” and has been referred to as such by previous witnesses in their testimony. She testified that prior to the death of the deceased she was in a relationship with him for three years. The deceased was depressed over his retrenchment, over the death of his mother and over the fact that his dog had to be put down. He was, furthermore, “sad” about the fact that the accused stole from him and consumed narcotic drugs. As regards the financial affairs of the deceased all she could say was that the deceased was very secretive about them. On the morning of 17 December 2011 she telephoned the deceased and asked him to bring bread, milk and smokes with him when he came to visit her. He repeated her request but prefaced the reference to each item with an expletive. Surprised at the way he had spoken to her she asked him what was wrong and he just laughed. Later that day he arrived at her place. He was transported by the accused in his car, which he allowed the accused to leave with. The deceased was jovial for the rest of the day and they had a good time together. She confronted him about the way he had addressed her earlier over the telephone and accused him of consuming alcohol, he just laughed at her. During that time he also said to her that “life is going to be good, everything will come right.”

The next morning he informed her that he loved her more than her late husband of 28 years. He became very serious and indicated that he was very concerned about his car. He said that if the accused had damaged the car he (the deceased) “might as well blow my brains out.” At around 10h45 that morning she arranged for a neighbour of hers to transport him home. She called him by telephone later in the day, and while conversing with him she noticed that his speech was “slurring.” She accused him of consuming alcohol and he just laughed sneeringly at her accusation. She informed him that if he consumed alcohol the relationship was over. She tried to contact him later that day again but failed, and the next day she received a call from the business partner of the deceased who informed her of his death.

Finally, she knew that the deceased had to visit a psychiatrist, but refused to do so. She asked him to consult the same psychiatrist she was receiving treatment from, but he refused.

During her cross-examination she said that she had never seen the deceased consume alcohol. She also denied sending text messages to Mrs Newcombe stating that the deceased was consuming alcohol. She could not have ever said that because “he did not drink at all.”

THE APPLICATION FOR THE ADMISSION OF HEARSAY EVIDENCE

After closing his case, the accused brought an application for the admission of certain hearsay evidence presented by some of the witnesses. The application was opposed. The accused wanted the following evidence admitted:

The evidence of the accused, Mrs Newcombe and Peggy that the deceased had told them that he was depressed because of his

retrenchment, his financial problems and failed investments, the accused’s addiction to alcohol and narcotic drugs and because of the accused stealing from him.

The evidence of attending doctors, Dlova and Modise, that the deceased had told them that he suffered from depression and in one case told Dlova that he felt suicidal.

The evidence of Mrs Newcombe that at some point the deceased had told her that he would never be able to take the life of the

accused but was able to take his own life.

The evidence of Mrs Newcombe that the deceased had told her that he was depressed about the children from his late wife threatening to take the house.

The evidence of Peggy that:

The deceased had informed her that he refused to see a psychiatrist;

On the morning of 18 December 2011 the deceased told her that if the car was damaged, “I might as well blow my brains out.”

The admission of hearsay evidence in a trial is governed by s 3(1) of the Law of Evidence Amendment Act No 45 of 1988 (“the LEAA”). The section provides that hearsay evidence shall not be admitted in a trial (civil or criminal) unless the court after having regard to a number of factors “is of the opinion that such evidence should be admitted in the interests of justice.” In terms of s 3(1)(c) of the LEAA, the factors to be taken into account when deciding whether it would be in the interests of justice to admit the evidence are “(i) the nature of the proceedings, (ii) the nature of the evidence, (iii) the purpose for which the evidence is tendered, (iv) the probative value of the evidence, (v) the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends, (vi) any prejudice to a party which the admission of such evidence might entail, and (vii) any other factor which in the opinion of the court should be taken into account.”

The present proceedings are criminal in nature. The person upon whose credibility the hearsay evidence depends is deceased. The evidence was tendered by the accused. It was presented in the course of his attempting to show that there was a reasonable possibility that the deceased

committed suicide, thus exonerating him of the charge of murder as reflected in Count 1 of the indictment. In this sense this case is different from the cases of S v Ramavhale4 and S Ndhlovu and Others5 where the hearsay evidence was tendered in order to secure a conviction of the respective accused.

The accused, it should be remembered, is endowed with a right to a fair trial. At the same time, the Court should be careful to ensure that the accused is not unduly convicted because of a strict adherence to the rule against admission of hearsay evidence. These two factors ensure that the application of ss 3(1)(c)(i), (iii) and (v) is a relatively simple matter. In the present case, the proceedings are criminal in nature. The purpose for which the evidence was tendered was to demonstrate that there is a reasonable

possibility that the life of the deceased was not taken by the hand of the accused, and thus could play a significant part in ensuring that he is exonerated of the charge in Count 1 of the indictment. These factors weigh heavily in favour of admitting the evidence. At the same time it bears noting that there is no general principle applicable that all the hearsay evidence tendered by an accused in the quest of escaping a conviction should automatically be admitted. While the Court must incline towards the direction of admitting the evidence it must temper its enthusiasm in this regard by carefully scrutinising the value of the evidence in showing that there is a reasonable possibility that the accused did not commit the criminal act for which he is indicted.

It bears mentioning that there was a great deal of hearsay evidence presented in this case and some of it was favourable to the case of the State, but as the State made no attempt to rely on it nothing further needs be said about it.

Some of the evidence supportive of the accused’s version was very weak. This evidence cannot, therefore, be said to have

established a fact, or to have meaningfully contributed towards establishing a fact. For this reason the hearsay evidence sought to be admitted had to be scrutinised carefully. This aspect of the enquiry is contemplated in s 3(1)(c)(iv) of the LEAA – the imperative that the Court should have regard to the probative value of the evidence before the evidence is admitted.

In taking this approach I concluded that the hearsay evidence that the deceased had indicated that he was depressed should be admitted. This hearsay evidence is supported by the objective evidence that he sought, and was receiving, medical treatment as a result of depression. The probative value of the hearsay evidence is significantly enhanced by the existence of objective evidence. Thus, in this case, the hearsay evidence that he was depressed was admitted as the “quality of the hearsay evidence and the extraneous reliability guarantors make it imperative that (they) be admitted.”6

The evidence of Mrs Newcombe that the deceased told her that he could take his own life but not that of the accused is of little

value in assisting the court in determining what happened on the fateful day. The last time Mrs Newcombe spoke to the deceased was in March of 2011. This was nine months before his death. A lot had occurred in the interim and neither she nor anyone else had heard him repeat the statement. Furthermore, the statement was meant to indicate his affection for the accused, it did not indicate, nor was it intended to indicate, that he had reached such a state of desperation that he could see no way out except to commit suicide. Thus, the probative value of this statement is so low that it would not be in the interests of justice to admit it.

The evidence that he told Dlova on 27 January 2010 that he felt suicidal is, too, of little value. The statement was made almost two years before he was shot. Furthermore, upon examination she found that he was “stable”, and therefore was not alarmed by the statement – at least not alarmed enough to have him admitted to the hospital. It was her professional conclusion that a dosage of Brazipam tablets was sufficient to help him overcome his condition. Accordingly, she issued him with the necessary prescription and told him to visit a psychiatrist at Johannesburg General Hospital. It was, therefore, clear that this hearsay evidence (that he said that he felt suicidal) was of little probative value when considering the events two years later when the deceased was shot. The application to have this evidence admitted was refused.

The evidence of Peggy that the deceased had informed her that “I might as well blow my brains out if the car is damaged”, or mentioned some words to a similar effect, could not be admitted when regard was had to the other evidence of what had occurred on that day. The evidence did not demonstrate that the deceased had, upon returning home and upon discovering that the window and the ignition of the car was damaged, had become so desperate that he could not see any way out except to commit suicide. The evidence of Bentley, the accused and the further evidence of Peggy of what happened on that day demonstrates that this was not the case. Both Bentley and the accused were with the deceased for many hours after he had made that statement to Peggy and before he was shot. Neither of them stated that at any stage during that period he had threatened to commit suicide. In fact he had given no indication whatsoever that he had even contemplated doing so. At one point he visited Bentley who was in the accused’s room and privately tried to cajole her into revealing where the accused had sold the items he (the accused) had stolen from him. During this conversation he did not betray any thoughts of suicide. The further evidence of Peggy is that after the deceased had made that statement to her and returned to the house, she had a telephonic conversation with him and he did not in any way indicate that he still harboured such a thought. In fact, their conversation focussed on whether he was consuming, or had consumed, alcohol, and she informed him that if he had done so then the relationship was over. Accordingly, this hearsay evidence (that “I might as well blow my brains out if the car is damaged”) is so weak as to have minimal, if any, probative value. It does not demonstrate that there is a reasonable possibility that the deceased committed suicide on that day. It is, therefore, not in the interests of justice to admit this evidence. For that reason it is to be excluded.

The accused also sought to have admitted the evidence of Mrs Newcombe that the deceased had told her that he was depressed about the children from his late wife threatening to take the house. This statement was made in March 2011. The evidence, however has to be considered in the light of the fact admitted by the accused that at the time of his death, and in fact sometime before his death, the deceased had secured a contractual right to remain in the house “until he died or until he himself left.” Thus, by December 2011 he was no longer exposed to this threat by his step-children, and therefore, he had no reason to fear them. Hence, her hearsay evidence on this has not value. It would not be in the interests of justice to admit such valueless hearsay evidence. Accordingly, this evidence was declared inadmissible and was struck from the record.

THE APPLICATION TO ADMIT OPINION EVIDENCE

After the ruling on the application to admit the hearsay evidence was given, the accused applied to have the contents of two articles that were downloaded from the internet as evidence. The two articles are titled, “Public health action for the prevention of suicide” (“the first article”) and “Alcohol consumption and suicide” (“the second article”). The first article is authored by the “World Health Organisation”. The second article is authored by one Dr L Sher from the Psychiatry Department at Columbia University in the United States of America.

The State opposed the application on the basis that, even if their contents were correct they, nevertheless, constitute opinion

evidence and, moreover, the opinions expressed therein bear no relevance to the facts of this case.

According to the overview of the first article, its purpose “is to provide a resource to assist governments in developing and implementing strategies for the prevention of suicide as well as help those that have already initiated the process of conceptualizing national suicide prevention strategies.” The second article concerns the findings of the author’s research into the correlation between alcohol consumption and suicide. The accused maintains that as the deceased had recovered from being an “alcoholic”, and that, according to him, as he had consumed alcohol on the day of his death, it must be taken that there was a reasonable

possibility that he committed suicide. The contents of both articles indicate that people who abuse alcohol are more inclined to commit suicide than people who do not.

Both articles deal with the issue of alcohol abuse and neither of them relate to conditions in South Africa. In fact the authors of both articles warn that their conclusions cannot be generalised and made applicable to all situations or to all countries in the world.

In the present case it is a proven fact that the last time anybody (except the accused) saw the deceased consume any alcohol was sixteen years ago. Some of the people who associated with him, like Peggy thought that he had consumed alcohol because of his breath and because his speech on the day of his death was “slurred”. Apart from the accused, who claimed that he shared a drink of alcohol with the deceased on the day of his death, no one saw him consume alcohol on that day.

In my view, the accused’s evidence in this regard, as with so much of his evidence, is a fabrication. The accused had a clear reason to fabricate this evidence. His evidence is that he and the deceased consumed the alcohol together before the argument between them broke out. At the place where they consumed the alcohol a head of a bottle was lying there with the drugs cannabis and methaqualone in it. This implies that at the moment when they shared a drink of alcohol the deceased had suddenly, and for no apparent reason, lost his concern about the accused’s conduct of consuming alcohol and drugs. Many witnesses, including the accused, testified that the deceased was extremely disturbed, to the point of being depressed, by the fact that the accused consumed alcohol and drugs. It must also be borne in mind that the accused’s addiction to alcohol and drugs was a reason for the accused stealing the property of the deceased. In the light of this, it made little sense for the deceased to come home, and suddenly not only disregard his concern about the conduct of the accused, but switch to the other extreme of actually encouraging part of that conduct. The accused’s version is not at all credible.

It needs be noted a sample of the deceased’s blood was taken for forensic analysis of the alcohol content therein. The result of that analysis, if indeed it was done, was not made available to the Court. Counsel for the State indicated to the Court that it was not available. However, the State provided no explanation as to why it was not available. The accused asked for an adverse inference to be drawn from the failure of the State to do so, and invited the Court to find as a fact that there was alcohol in the blood stream of the deceased at the time of his death. The invitation had to be declined. The proven fact is that no one had seen the accused consume alcohol for sixteen years. The only evidence we had that he consumed alcohol is the unsubstantiated claim of the accused, which we rejected.

As we find that there is no evidence that the deceased consumed alcohol whether on the day of his death or at any other time for sixteen years prior to his death, the opinion evidence about the correlation between alcohol abuse and suicide is irrelevant.

As the contents of the two articles are irrelevant to the issues in this case, the application to have them admitted as evidence was dismissed.

A COMMENT ON THE VIVA VOCE EVIDENCE

For purposes of making the rulings above it was necessary to comment on some of the viva voce evidence presented in this case. Those comments were restricted to the evidence relevant to the issues dealt with in each of the rulings. A comment on the rest of the viva voce evidence is necessary.

Firstly, it is necessary to deal with the fact that:

there were some discrepancies between the viva voce evidence of Macfarlane and the written statement he made on the night of the incident; and that,

there were some discrepancies between the viva voce evidence of Chauke and the written statement he made on the night of the incident,

there were some discrepancies between the viva voce evidence of Yende and the written statement he made;

as the accused made an issue of these discrepancies.

According to the accused, these discrepancies indicated that the testimonies of these witnesses are untrustworthy and, therefore,

unreliable. I disagree. It is important to bear in mind that:

“… police statements are as a matter of common experience frequently not taken with a degree of care, accuracy and completeness which is desirable. S v Xaba 1983 (3) SA 717 (A) at 730B-C

Furthermore, as was pointed out in S v Bruinders en ‘n Ander 1998 (2) SACR 432 (SE) AT 437h, the purpose of a police statement is to obtain details of an offence so that a decision can be made whether or not to institute a prosecution, and the statement of a witness is not intended to be a precursor to the witness’ evidence in court.”7

The fact that there is a discrepancy between the two versions of each of the respective witnesses does not mean that the witness has been dishonest, or that the witness lacks credibility, or that the testimony is unreliable. It is imperative for the Court to examine the testimony as a whole and scrutinise it in the context of other testimonies in order to determine the issues of the credibility of the witness or the reliability of the evidence:

“Contradictions per se do not lead to the rejection of a witness’ evidence. As Nicholas J, as he then was, observed in S v Oosthuizen 1982 (3) SA 571 (T) at 576B-C, they may simply be indicative of an error. And … not every error made by a witness affects his credibility; in each case the trier of fact has to make an evaluation; taking into account such matters as the nature of the contradictions, their number and importance, and their bearing on other parts of the witness’ evidence.8

It is our considered view, that with the exception of Bentley, all the witnesses for the state were completely candid and sincere in their testimonies. To the extent that any of the evidence given by them was contradicted by another witness or contradicted by what was said in their previous statements, it was not because of lack of candour on their part, but was a result of an understandable failure of memory. Thus, when Chauke stated that the accused was taken back to the house for only five to ten minutes after being arrested at Freddie’s, while Macfarlane, Yende and Bentley were certain that he was there for well over an hour, we believe that Macfarlane, Bentley and Yende were correct and that Chauke simply made an error in this regard: he was neither dishonest nor did he deliberately attempt to mislead the Court. There was simply no reason for him to do so and none was suggested by the accused.

As regards the evidence of Bentley, I am of the view that her testimony was candid in all respects save for one aspect: that she did not see Macfarlane at the house on the night of 18 December 2011 prior to her and the accused leaving with the property of the deceased. I hold that her version was not correct. This is the only piece of her evidence I find wanting for it does not accord with the facts supporting Macfarlane’s testimony, in particular, the fact that it was Macfarlane’s visit to the police station that alerted the police to the death of the deceased.

The accused asked that to the extent that she was a single witness on some of the factual issues of her evidence should be treated with caution. This, he submitted, was more so when regard was had to the fact that she was offered immunity from prosecution by the State in return for her testimony against him. The accused contended that she had every reason to falsely implicate him.

The courts have on more than one occasion noted the difficulties and dangers associated with uncritically accepting the evidence of a single witness, especially one who may have every reason to implicate the accused, in convicting the accused.9 Thus, the need to tread cautiously, However, there is no rule that because the evidence, whether critical to the case or not, has to be rejected because it is that of a single witness. Only that it has to be treated with caution. Consequently, the State is entitled to rely on the evidence of a single witness and the Court is obliged to give due weight to it if the evidence in competent and compelling. As Diemont JA remarked:

“The cautionary rule … may be a guide to a right decision but it does not mean “that the appeal must succeed if any criticism, however slender, of any witnesses’ evidence were well founded”(per Schreiner JA in R v Nhlapo (AD 10 November 1952) quoted in R v Bellingham 1955 (2) SA 566 (A) at 569). It has been said more than once that the exercise of caution must not be allowed to displace the exercise of common sense.”10

There is no doubt that on some issues Bentley was the single witness for the State. While it is necessary to bear in mind that her evidence was the only evidence on certain issues, not all her evidence was detrimental to the accused. She did not shy away from evidence that supported his case, nor did she give any evidence to the effect that the accused had shot the deceased. It was accepted by the accused that she was asleep at the time the deceased was shot, and was unaware of the shooting. She refrained from giving any evidence to the effect that the accused shot the deceased, or that he deliberately destroyed or damaged any evidence that implicated him in the shooting. She merely relayed what, to the best of her recollection, had occurred after he woke her up, and most of her evidence in this regard was accepted by him. The accused is aggrieved at the fact that she did not back his version that the rifle was under the arm of the deceased, but he cannot say that she deliberately misled the Court in this regard. She was adamant that she told him not to touch the deceased or interfere with the evidence in the garage and he did not dispute her evidence in that regard. She was adamant that it was his decision to take the bullets, clothes and bedding and place them in the car. Except for the bullets, he agreed that it was his decision to steal the clothes and bedding of the deceased and that he instructed her to put it into the car. He also agreed that he took hold of the rifle while she was busy carrying out his instruction to put the goods in the car. He also agreed that after returning from the car she found him with the rifle in his hand threatening to shoot himself. Hence, there is no reason for her to have deceived the Court by claiming that she did not see the rifle under the arm of the deceased when, upon being woken, she went to and stood at the door of the garage. Her story in which she outlined the facts to the best of her recollection, some of which he agreed with, was clear and straightforward and withstood comprehensive cross-examination.

Hence, while it is correct to tread cautiously when examining her evidence, it is incorrect to reject it solely on the basis that she was “a single witness.” As can be seen from what is said above most of her evidence was materially supported by a host of other evidence. Her evidence was compelling in most respects. Accordingly, it has to be accepted and relied upon in establishing some of the facts in this case.

On the other hand, we have no doubt that the accused was not candid with the Court at all. Most of his evidence was manufactured for purpose of rebutting any evidence of the State that he believed was supportive of State’s case. He also did this in a piecemeal fashion and in so doing he was unable to avoid the pitfalls of self-created confusion. This confusion manifested itself in when he denied that the window of the car was damaged at all and then later claimed that it was damaged a month before 18 December 2011, and that the pieces of broken glass were left in the car for the entire month as he had stolen the vacuum cleaner of the deceased and pawned it and thus the car could not be cleaned. In the same vein, he objected to Newcombe’s evidence that he stole approximately twenty-two thousand rands (R22 000 – 00) from the deceased on the grounds that it was unreliable hearsay evidence, but later, during his own testimony, he admitted to stealing this money from the deceased.

Finally, the opinion evidence of Pieterse concerning how the deceased was probably shot was too ambivalent to be of any value.

THE ESTABLISHED FACTS

On the conspectus of all the admitted viva voce and documentary evidence presented, as well as the admissions made by the accused, we find that the following facts have, without any reasonable doubt, been established:

Prior to the death of the deceased:

On 10 March 2009, i.e. two years and 10 months before his death, the deceased visited the hospital and was seen by the attending doctor dealing with diabetic patients. The attending doctor recorded that the deceased was “under a lot of pressure – recently lost his job and (was) under financial strain.”

On 27 January 2010, almost two years before his death, the deceased visited the hospital because he was depressed and felt “suicidal”. Upon examination of his symptoms the attending doctor, Dlova, concluded that he was “stable.” She prescribed certain medication and referred him to Johannesburg General Hospital for a consultation with a psychiatrist.

In the view of Dlova the deceased made a serious effort to overcome his depression and the medication he was prescribed constituted

adequate treatment, thus making it unnecessary for her to either increase the dosage of the medication, or prescribe a more potent form of medication.

On 25 October 2011, i.e. almost two months before his death, he visited the hospital and claimed he was depressed and requested

medication from the hospital. The attending doctor prescribed the medication he was already taking. Unlike his previous visit on 27 January 2010, there appears to be no mention of the deceased feeling suicidal.

The deceased was depressed and had received constant treatment for his depression, but his condition was never so severe that he was required to be hospitalised. The treatment he received involved him taking a tranquiliser known as Brazipam. Its chemical name is “bromazepam”. It is “a benzodiazepine and has anxiolytic, sedative, muscle relaxant and anticonvulsant properties. Bromazepam “is used in treatment

of patients suffering from anxiety disturbances. (And) is only indicated when the disorder is severe, disabling or subjecting the individual to severe stress.”

The deceased and the accused had a turbulent relationship. The accused had on more than one occasion stolen the property of the deceased and pawned, or sold it, for cash, which he used to purchase drugs for his personal consumption. The accused had deposed to a sworn statement in 2009 promising to reform his behaviour.

The accused had on occasion stolen the medication of the deceased and consumed it.

On the evening of 16 December 2011 at about 23h00 the accused had been in possession of the deceased’s car. The engine of the car had been started by joining two electrical wires attached to the ignition of the car. He was with two friends, Arthur and Mundell. Arthur was extremely high on drugs. They were all outside Forest Hill Hotel. Bentley came there and the accused instructed her to accompany him to the house, which she did. Arthur was in the car and he too accompanied them. Arthur was assisted into the house by Bentley. Arthur slept in the accused’s bed. Sometime later the accused, who had consumed drugs, came into the room, accused Bentley of having a liaison with Arthur. He became aggressive, which he normally does after consuming drugs, and assaulted her.

Arthur left late in the morning of 17 December 2011. The accused and Bentley stole the lawnmower of the deceased and pawned it. They purchased drugs and whiskey from the money received. Thereafter, they spent the whole of that day on their own in the house, where they took the drugs with whiskey. When the drugs ran out they consumed the brazipam belonging to the deceased with whiskey.

On 18 December 2011, the accused, Bentley and the deceased were in the house. They were the only occupants. There was a heated argument between the accused and the deceased. The argument endured for the entire period that they were together that day. At one point the deceased was locked out of the house by the accused and tried to get back in. At that point he had a spade in his hand. After a while, he regained entry into the house. Later that evening, the deceased was shot in the garage of the house.

The death of the deceased:

The deceased was shot with his own rifle. The shooting took place in the garage at the house. He died instantly. He was probably shot through the mouth with the bullet penetrating the upper palate of the mouth. His entire skull was shattered. Parts of his brain and blood were splattered across the room, onto the ceiling and on a gas cylinder which was located next to his head. There were small contusions and lacerations in the inside of his lower lip. There were pieces of glass on his body.

His body was found exactly at the place where he was shot. He was found in a seated position next to a gas cylinder with his left leg crossed over his right leg and his left hand crossed over his right hand, with the right hand resting on the left thigh.11

At the time the deceased was shot there were only three occupants in the house, the deceased, the accused and Bentley. However, Bentley was asleep in the room of the accused at the time the deceased was shot.

After the death of the deceased:

The accused woke Bentley up and informed her that the deceased had committed suicide. The accused took Bentley to the garage to show her the body of the deceased. Bentley remained at the entrance of the garage and saw the body inside. The body of the deceased was in a seated position with his head between a gas cylinder and with his left leg over his right one and his arms crossed and lying on his thighs.

Bentley informed the accused that he should leave everything as is, and should contact the police. They went into the house where accused took hold of a telephone and tried to dial the number for the police but was unable to do so. He then decided to go back into the garage. He touched the deceased, lifting his shoulder and replacing it in a manner that ensured that the position of the deceased remained as he had found it.

The accused gave Bentley four live bullets of the rifle and instructed her to place them in the car. While she was doing that he took the rifle and placed it next to his chin. When she returned he told her that he was going to shoot himself as he had lost the only person who cared for him. She took the rifle out of his hand and threw it in the swimming pool. The rifle was later retrieved from the swimming pool by the police.

Thereafter the accused went to the bedroom of the deceased and began collecting some of the deceased’s clothes and bedding and began placing them in the car. He instructed her to follow suit. He informed Bentley that he intended to sell these items in order to raise money for petrol. He did not manage to place all the items he took from the deceased’s house into the car. Some of the clothes and bedding fell out of his hands while he was busy carrying them to the car. He failed to retrieve them and left them wherever they fell. Some of them fell in the driveway.

At about this time Macfarlane came to the house and found it in a mess. He noticed that there was broken glass as well as clothing

and bedding of the deceased lying in the driveway. After entering the house he met the accused and Bentley. He asked the accused

where the deceased was and was told that the deceased had committed suicide in the park, and that his body was still in the park. While the accused was speaking to him, Bentley told the accused not to say anything. The accused listened to Bentley. Macfarlane immediately left.

After Macfarlane left, the accused locked the house and together with Bentley drove off in the car of the deceased. He started the engine of the car by joining two electrical wires connected to the ignition. Just as he was driving-off, they met a gentleman from the nearby church who had come to the house to investigate what had happened. He was told by the accused that the deceased had committed suicide and the accused immediately drove-off. The accused drove to a tavern operating under the name of “Solly Kramers”. The tavern is not far from the house. The accused was naked above the waist and had only one shoe on, (referred to as a “takkie” by all the witnesses), on. They went into the tavern. The accused had about eighteen (R18 - 00) on his person. He purchased “a half-jack of sherry”, which he and Bentley consumed. He offered to sell the bartender the goods of the deceased which included clothing, bedding and a fax machine. The bartender declined the offer. They then left for another tavern known as “Freddies” in Kennedy Street. This place is a few hundred metres from the Solly Kramers tavern.

In the meantime, Macfarlane had returned to the house to collect his clothes for the next day, and found it locked. He found broken glass on the driveway of the house. He gained entry from the side of the house and entered the garage where he saw the deceased. Shocked but composed enough he was able to go to his room and take his clothes for the next day. He immediately left and returned to his girlfriend’s house. After a short while, he went to the Booysens Police Station and reported his encounter with the accused earlier that night, as well as his encounter at the house upon his return. He informed the police that the accused claimed that the deceased had committed suicide and that he (Macfarlane) saw the body of the deceased in the garage at the house.

The police only became aware of the incident at the house by virtue of the information provided to them by Macfarlane.

As a result of the report from Macfarlane, the police despatched a patrol van to the house, while Macfarlane was instructed to remain at the police station as he would become a potential suspect should any foul play be discovered. The police based at the station received a call from the police who were sent to the house and were informed that they had found the body of the deceased as per the information given by Macfarlane. Macfarlane was warned that he was a prime suspect in a possible murder investigation and was driven to the house by the detectives who had arrived at the police station.

The police who were despatched to the house to investigate the claims of Macfarlane met Aaron who informed them that the accused and Bentley had left the house and were at the tavern Solly Kramers. The police immediately went to Solly Kramers where they were informed that the accused and Bentley had been there, but had left and were at another tavern, Freddies, which was down the road in Kennedy Street.

The owner of Freddies purchases second hand goods from people. He also acts as a pawnbroker. The accused offered him the goods of the deceased in return for cash. He indicated that he was not interested in these goods. While the accused and Bentley were still there, the police arrived. The police, after receiving permission from the accused, and in the presence of the accused, searched the car of the deceased that was in his possession. They found the four live bullets in the car. They arrested the accused and Bentley. Throughout the encounter between the police and the accused and Bentley at Kennedy Street, the accused and Bentley were abusive towards the police. They both shouted expletives to the police.

There were splashes of blood on the jeans and shoe worn by the accused. He also had human tissue, a whitish substance and splashes of blood on his chest.

The accused and Bentley were placed in separate police vans. They were both locked in the back of the vans. They were driven to the house. The accused was removed from the van and allowed to go into the house. Bentley remained locked in the back of the van. While she was in van, Bentley shouted expletives and racist comments to the police.

At the house the accused met the police who were busy collecting evidence. Macfarlane was there, too. Members of the public, including Msibi and Aaron had gathered outside the house.

The house was found in a mess, with some of the clothes and bedding of the deceased lying in driveway, the lounge, the garage and in the passageway. The police retrieved the rifle from the swimming pool. They found part of the shotgun belonging to the deceased. They found two live bullets belonging to the rifle in the yard. The other shoe of the accused was found in the house, too. It had splashes of blood on it. A T-shirt belonging to the accused was found on a pedestal in the lounge. They found a bottle of whiskey in the room of the deceased. There was a reasonable amount of whiskey left in the bottle. A large axe was found lying in the outside yard, next to two pieces of wood. They found that the safe that was used to secure the guns had been broken into.

A sample of the blood on the jeans and shoes of the accused was taken and sent for forensic analysis. The results of the analysis

indicated that the blood was that of the deceased.

The accused was returned to the back of the police van which, once again, was locked. Both he and Bentley were transported to the Booysens Police Station where he was formally charged for, inter alia, the murder of the deceased.

On 19 December 2011 the accused and Bentley were brought back to the house. They were handcuffed together. The accused was asked to point out where the missing part of the shotgun was. He only pointed out various areas in the house. The search was

unsuccessful.

On 5 January 2012 the missing part of the shotgun was found inside the hedge on the inside of the perimeter fence.

CONCLUSION

Count 1 of the indictment: unlawful killing of the deceased

I have found that the accused was a very poor witness who was deliberately untruthful to the Court. This does not mean that he is guilty of the offence of intentionally causing the death of the deceased. The fact that the accused lied to the Court is a factor to be borne in mind but it is not, and cannot be, decisive of the issue that he unlawfully and with the requisite intention caused the death of the deceased.12 There may be understandable reasons for his dishonesty as a witness, and even if there are none this does not mean that his guilt has been proven. It is still necessary for the State to prove beyond reasonable doubt that the accused is guilty of the offence as charged. To achieve this it is the duty of the State to present substantial and compelling evidence that allows for no other

reasonable conclusion than that the accused is guilty of the offence for which he is charged. However,

“… there is no obligation upon the Crown to close every avenue of escape which may be said to be open to an accused. It is sufficient for the Crown to produce evidence by means of which such a high degree of probability is raised that the ordinary reasonable man, after mature consideration, comes to the conclusion that there exists no reasonable doubt that the accused has committed the crime charged. He must, in other words, be morally certain of the guilt of the accused.

An accused’s claim to the benefit of a doubt when it may be said to exist must not be derived from speculation but must rest upon a reasonable and solid foundation created either by positive evidence or gathered from reasonable inferences which are not in conflict with, or outweighed by, the proved facts of the case.”13

The proven facts in this case are that there was a long standing conflict between the accused and the deceased over the conduct of the accused: that on 18 December 2011 there was an intense conflict between them which resulted in the accused locking the deceased out of the house; that the safe in which the guns of the deceased was kept had been broken open; that the shotgun was split into two with the barrel hidden in the hedge at the perimeter of the house; that two bullets of the rifle were found lying in the yard of the house; that the accused had splashes of the deceased’s blood on his person, jeans and shoes; that the accused deliberately misled Macfarlane about the death of the deceased, so that Macfarlane could not intervene by calling the police; that instead of leaving the deceased as he was found, he deliberately moved the body; that he deliberately took hold of the rifle which was used in the shooting and tried to “cock-it”, and further allowed Bentley to throw it into the pool; that at the time of the death of the deceased only three persons were in the house – the deceased, the accused and Bentley – but Bentley played no role in the death of the deceased as she was asleep at the time; that the accused failed to notify the police of the death of the deceased and instead concentrated on stealing the property of the deceased.

The accused’s submission that the deceased committed suicide because he was depressed and that he was a recovering “alcoholic” is not based on any facts. The facts are that he had not consumed alcohol for sixteen years prior to his death and that he was receiving medication for his depression which medication was sufficient, resulting in him being treated as an out-patient rather than him being hospitalised for his condition. The submission of the accused that there is a reasonable possibility that he consumed alcohol on the day of his death has to be rejected since it conflicts with the proven facts.

An objective assessment of these facts shows beyond reasonable doubt that the accused intentionally and unlawfully caused the death of the deceased. All the evidence demonstrates that it was a result of a heated and intense conflict between him and the deceased (which conflict had deep historical roots) on that evening that went a step too far. He had, nevertheless, acted with deliberate intent when he shot the deceased. Therefore, he is guilty of murder.

There is no evidence that he pre-planned the murder. It is clear that while the conflict between him and the deceased was long-standing, there is no evidence that he decided in advance to take the life of the deceased. That act took place on the spur of the moment. He is, accordingly, not guilty of premeditated murder as contemplated in s 51 of the Criminal Law Amendment Act 105 of 1997.

Accordingly, the accused is found guilty of murdering the deceased.

Count 2: Robbery with aggravating circumstances

The evidence also shows beyond doubt that after the murder of the deceased the accused and Bentley commenced stealing the property of the deceased. It was also established beyond doubt that he intended to sell some of this property very soon after having shot the deceased. The theft of this property took place after the deceased had died. The accused did not intend to steal from the deceased prior to murdering him. In other words, the murder was not a result of the intention to steal. The theft was an opportunistic act. For this reason we are of the view that the theft does not fall within the definition of robbery. He was charged for robbery. However, in terms of s 260 of the CPA theft is a competent verdict on a charge of robbery.

The accused is found guilty of theft.

Counts 3 and 4: Unlawful possession of a firearm and unlawful possession of ammunition

After all the evidence was led, the accused agreed that he took control of the rifle and that there was a live bullet in the chamber. He, therefore, does not challenge Counts 3 and 4 of the indictment. Moreover, we find that there were four live bullets of the shotgun in the car, which car was under his control. We also find that he gave them to Bentley and instructed her to put them there.

He is, accordingly, found guilty of Count 3 and 4

Count 5: Unlawful possession of drugs

As mentioned above the accused pleaded guilty to this charge. He was, therefore, convicted of it.

_____________________

Vally J

Judge of the South Gauteng High Court

Palm Ridge

25 March 2013

I concur:

Mr Chris Mokaditwa (Assesor)

Mr Gideon van Wyk (Assesor)

Appearances:

For the State : Adv L Gcaba

For the Defendant : Adv E Guarneri

Instructed by : Legal Aid Board

Dates of hearing 28, 29 31 January, 1, 4, 11, 12, 13, 14, 15, 18, 19, 20, 21,22, 26, 27 February, 1, 7, 12, 13, 18 and 19 March 2013

Date of judgment on conviction : 25 March 2013

1 See in this regard: S v Kondile 1974 (3) SA 774 (Tk); S v Mgudu 2008 (1) SACR 71 (N); S v Chabedi 2004 (1) SACR 477 (W)

2 see exhibit “R” p 1

3 See Exhibits “N” and “O”

4 1996 (1) SACR 639 (A)

5 2002 (2) SACR 325 (SCA)

6 Id. at [52], 348g

7 S v Govender and Others 2006 (1) SACR 322 (E) at 324j-325a

8 S v Mkohle 1990 (1) SACR 95 (A) at 98f-g

9 R v Mokoena 1932 OPD 79 at 80; S v Sauls and Others 1981 (3) SA 172 (A)

10 S v Sauls, Id.at 180F-G

11 This is depicted in Exhibit “C”, photo 19.

12 See: S v Mtsweni 1985 (1) SA 590 (A) at 593I-594D

13 R v Mlambo 1957 (4) SA 727 (A) at 738A-B