S v Witbooi and Others (CC04/2018) [2018] ZAWCHC 148; [2019] 2 All SA 204 (WCC) (7 November 2018)

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO: CC 04/2018

In the matter between:

THE STATE

and

VERNON JUNAID WITBOOI Accused 1

GERALDO PARSONS Accused 2

EBEN VAN NIEKERK Accused 3

NASHVILLE JULIUS Accused 4

JUDGMENT DELIVERED ON 7 NOVEMBER 2018

ALLIE, J:

1. The accused were indicted on the following charges:

1.1. Accused 1,2 and 3:

1.1.1 Count 1- Robbery with aggravated circumstances in that the accused on or about 27 May 2017 at Jan Celliers Street, Stellenbosch, in the district of STELLENBOSCH, did unlawfully and intentionally assault CHESLIN CLAUD MARSH with the intention to submit him into submission by threatening to kill or hurt him with a knife and screwdriver and/or pushing him in the boot of a Volkswagen Citi Golf motor vehicle and then and with force took certain possessions from him.

AND FURTHER THAT the accused acted in a common purpose.

AND THAT aggravating circumstances as described in section 1 of Act 51 of 1977 are applicable as the accused, while committing this offence, be it before, during or after the commission thereof, wielded dangerous weapons to wit a knife and/or screwdriver and/or threatened to inflict grievous bodily harm to CHESLIN CLAUD MARSH.

AND FURTHER THAT the provisions of section 51(2) (a) of Act 105 of 1997 are applicable in that this crime is mentioned in Part II of Schedule 2 of the said Act.

1.1.2 Count 2- Robbery with aggravated circumstances in that the accused on or about 27 May 2017 at Jan Celliers Street, Stellenbosch, in the district of STELLENBOSCH, did unlawfully and intentionally assault HANNAH CORNELIUS with the intention to force her into submission by threatening her with a knife and/or screwdriver and/or pushing her between the passenger seats of a Citi Golf motor vehicle CL 7651 and/or driving with her inside a Volkswagen Citi Golf motor vehicle, and then and with force took certain possessions from her.

AND THAT the accused acted in a common purpose.

AND THAT aggravating circumstances as described in section 1 of ACT 51 of 1977 are applicable as the accused, while committing this offence, be it before, during or after the commission thereof, wielded dangerous weapons to wit a knife and/or screwdriver and/or inflicted grievous bodily harm HANNAH CORNELIUS.

1.1.3 Count 3- Kidnapping in that the accused on or about 27 May 2017 at or near Jan Celliers Street, Stellenbosch and/or Stellenbosch area and Kraaifontein area, in the districts of STELLENBOSCH and KUILS RIVER, did unlawfully and intentionally deprive CHESLIN CLAUD MARSH of his freedom of movement by, driving with him against his will inside motor vehicle Volkswagen Citi Golf CL 7651;

i) from Bird Street, Stellenbosch to an unknown place(s) in Stellenbosch where he was forced into the trunk of a Volkswagen Citi Golf, and

ii) from an unknown place in Stellenbosch to the Kraaifontein area.

1.1.4 Count 4- Kidnapping in that the accused on or about 27 May 2017 at Jan Celliers Street, Stellenbosch and/or Kraaifontein and/or Bottelary Road and/or Groenhof Farm Stellenbosch, in the districts of Stellenbosch and KUILS RIVER, did unlawfully and intentionally deprive HANNAH CORNELIUS of her freedom of movement by pushing or forcing her between the two seats of a Volkswagen Citi Golf motor vehicle and driving with her against her will:

i) From Bird Street, Stellenbosch to an unknown place in Stellenbosch;

ii) From an unknown place in Stellenbosch to Kraaifontein area;

iii) From Kraaifontein area to another area in Stellenbosch where CHESLIN MARSH was taken out of the motor vehicle;

iv) From the area in Kraaifontein where CHESLIN MARSH was taken out of the vehicle to the Reapers Paint Ball Range on the Bottelary Road;

v) From Reapers Paintball Range on the Bottelary Road to Groenhof Farm, Stellenbosch.

1.1.5 Count 5- Attempted murder in that the accused on or about 27 May 2017 at or near Kraaifontein, in the district of KUILS RIVER, did unlawfully and intentionally attempt to kill CHESLIN CLAUD MARSH a male person, by stabbing him with a sharp object(s) and/or stoning him with bricks to his head and body and/or performing other unknown acts of serious physical violence against his body;

1.1.6 Count 6 - Rape as contemplated by section 3 of the Criminal Law (Sexual Offences and related matters) amendment Act, 32 of 2007, and further read with section 51(1) and Schedule 2 Part 1 of Act 105 of 1997; in that the accused on or about 27 May 2017 at or near Reapers Paintball Range, Bottelary Road, Stellenbosch, in the district of KUILS RIVER, did unlawfully and intentionally commit act(s) of sexual penetration with the complainant, to wit HANNAH CORNELIUS a female person, by each of them putting or pushing their penises into or beyond the vagina of the said HANNAH CORNELIUS, without her consent;

AND FURTHER THAT the provisions of section 51(1) of Act 105 of 1997 are applicable in that this crime is mentioned in Part 1 of Schedule 2 Rape paragraph (a) (ii) of the said Act in that more than one person raped the complainant in the execution of a common purpose or conspiracy and (c) grievous bodily harm was inflicted during the rape.

1.1.7 Count 7- Murder as contemplated by section 51(1) and Schedule 2 Part 1 of Act 105 of 1997 in that the accused on or about 27 May 2017 at or near Groenhof Farm, Koelenhof, Stellenbosch, in the district of KUILS RIVER did unlawfully and intentionally kill HANNAH CORNELIUS, a female person, by stabbing her twice with a sharp penetrating object(s) in her left neck and/or by throwing a big rock on her head and/or by performing unknown acts of severe blunt force trauma to her head or body;

AND FURTHER THAT the provisions of section 51(1) of Act 105 of 1997 read with Schedule 2 Part I Murder (c) (i) are applicable in that the death of the victim was caused by the accused in committing or after having committed rape as contemplated in section 3 of the Criminal Law (Sexual Offences and Related Matters Amendment Act, 32 of 2007).

AND FURTHER THAT the provisions of section 51(1) of Act 105 of 1997 read with Schedule 2 Part 1 Murder (c) (ii) are applicable in that the death of the victim was caused by the accused in committing or after having committed robbery with aggravated circumstances as defined in section 1 of the Criminal Procedure Act, 51 of 1977.

1.1.8 Count 8- Robbery with aggravated circumstances as contemplated by section 51(2)(a) read with Schedule 2 Part II of Act 105 of 1997 in that the accused on 27 May 2017 at Northpine Drive, Kraaifontein, in the district of KUILS RIVER, did unlawfully and intentionally assault NCUMISA QWINA with the intention to force her into submission by chasing her until she fell and/or performed an act which looked like taking something out of his pants and then with force took certain possessions from her.

AND THAT aggravating circumstances as described in section 1 of Act 51 of 1977 are applicable as the accused, while committing this offence, be it before, during or after the commission thereof, wielded dangerous weapons to wit a knife and/or screwdriver and/or inflicted grievous bodily harm and/or threatened to inflict bodily harm to NCUMISA QWINA.

1.1.9 Count 9- Robbery with aggravated circumstances as contemplated by section 51(2)(a) read with Schedule 2 Part II of Act 105 of 1997; and in that the accused on 27 May 2017 at Langenhoven Way, Soneike, Kuils River and/or the ATM Brackenfell and/or Bottelary Road in the district of KUILS RIVER, did unlawfully and intentionally assault MIEMIE OKTOBER with the intention to force her into submission by performing the following acts:

i) Grabbed her bag and threatened her with physical assault to get into a Citi Golf motor vehicle; and/or

ii) Driving with her inside a Volkswagen Citi Golf motor vehicle and forcing her to provide her bank pin;

AND took certain possessions and money from her.

AND THAT aggravating circumstances as described in section 1 of Act 51 of 1977 are applicable as the accused, while committing this offence, be it before, during or after the commission thereof, wielded dangerous weapons to wit a knife and/or screwdriver and/or inflicted grievous bodily harm and/or threatened to inflict bodily harm to MIEMIE OKTOBER.

1.1.10 Count 10- Kidnapping in that the accused on 27 May 2017 at Langenhoven Way, Soneike, Kuils River and/or the ATM Brackenfell and/or Bottelary Road and/or Kruis Road Brackenfell in the districts of KUILS RIVER and STELLENBOSCH, did unlawfully deprive MIEMIE OKTOBER of her freedom of movement, by driving with her against her will, captured inside a motor vehicle, from Langenhoven Street, Kuils River to a Petrol Station in Kruis Road, Brackenfell and/or to Kuils River Golf Club in a Volkswagen Citi Golf motor vehicle.

1.2. Accused 4 was charged with the following:

1.2.1. Count 1: Robbery with aggravated circumstances

1.2.2. Count 2: Robbery with aggravated circumstances

1.2.3. Count 3: Kidnapping

1.2.4. Count 4: Kidnapping

2. Accused 1 pleaded guilty to a competent verdict of robbery without aggravating circumstances on counts 3,4 and 10 but after the court’s questioning in terms of section 112(1)(b) of the Criminal Procedure Act 51 of 1977, his plea of guilty was not accepted and it was changed to not guilty.

3. Accused 1 pleaded not guilty on the remaining counts.

4. Accused 2, 3 and 4 pleaded not guilty on all counts.

5. All the accused made formal admissions in terms of section 220 of the Criminal Procedure Act.