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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, GRAHAMSTOWN)

CASE NO: CC 12/2016

In the matter between:

THE STATE

vs

SIPHO ZWENI                                                                                        Accused 1

SIPHOSETHU MATONI                                                                          Accused 2

LUSINDISO MBEKENI                                                                           Accused 3

JUDGMENT

MAKAULA J:

A.   The charge:

[1] All the accused are charged with two counts of murder, unlawful possession of firearms, unlawful possession of ammunition and robbery with aggravating circumstances.  Accused 1 is further charged with robbery and pointing a firearm.

[2] In count 1 the state alleges that on or about 15 August 2015, at or near Pinevale Farm, Ida in the district of Dordrecht, the accused did unlawfully and intentionally kill Ruben Jacobus Gouws, a 65 year old male.      

[3] In count 2 the state alleges that on or about the same date, time and place, the accused unlawfully and intentionally killed Hermina Jacoba Gouws, an 88 year old female person.      

[4] In count 3 the state alleges that on or about the same time and place mentioned in count 1, the accused unlawfully and with the intent to rob, took by force out of the possession of Ruben Jacobus Gouws and/or Hermina Jacoba Gouws the items referred to in Annexure A attached to the indictment, their property or property in their lawful possession, aggravating circumstances being present in that the accused:   

• Wielded dangerous weapons to wit knives and heavy objects and/or;

• Inflicted grievous bodily harm on the said Ruben Jacobus Gouws and Hermina Jacoba Gouws;

• Before/during/after the commission of the robbery.

[5] In count 5 the state avers that on the date, time and place mentioned in count 1, the accused did unlawfully have in their possession the following firearms in contravention of section 3, read with sections 1, 103, 117, 120(1)(a), and 121 read with Schedule 4 of the Firearms Control Act, No 60 of 2000 and further read with section 250 of the Criminal Procedure Act, No 51 of 1977 to wit, a .450/.455 calibre revolver with serial no. 1485, a Martini Henry .577 calibre rifle with serial no WR 37521 and a Remington .22 calibre rifle with serial no 24301, without holding a licence, permit or authorization in terms of the said Act to possess those firearms.   

[6] In count 6 the state avers further that on the date, time and place mentioned in count 1, the accused did unlawfully have in their possession six (6) rounds of .223 calibre and two (2) rounds of .22 calibre ammunition, without being the holder of:

• A licence in respect of a firearm capable of discharging that ammunition;

• A permit to possess ammunition;

• A dealer’s licence/manufacturer’s licence/gunsmith’s licence/import, export or in-transit permit/transporter’s permit issued in terms of this Act or;

• An authorization to possess the said ammunition.

[7] In count 7 it is alleged that on the date, time and place mentioned in count 1 and at near IDA sports ground in the district of Dodrecht, accused 1 unlawfully with intent to rob, took by force out of the possession of L. W., a 16 year old male person, a bicycle, his property/property in his lawful possession, aggravating circumstances being present in that the accused:

• Wielded a dangerous weapon, to wit, a revolver and/or;

• Threatened to inflict grievous bodily harm on the said L. W..   

[8] It is alleged by the state in count 8, that at or near the place and date mentioned in count 7, accused 1 unlawfully and intentionally pointed a firearm, to wit, a .450/.455 calibre revolver at other persons, to wit, M. D. and/or M.Plaster Duda.

Plea and plea explanations:

[9] The accused pleaded guilty to different counts as shall appear below.  They all made statements in terms of Section 112 of the Criminal Procedure Act 51 of 1977 (the Act).  Due to the nature of this matter, I shall refer extensively to the accused’s plea explanation.

• Accused 1 pleaded not guilty to counts 1, 2, 7 and 8.  He pleaded guilty to counts 3, 5 and 6.  The relevant portions of accused 1’s plea explanation read as follows:

“4.           The facts surrounding the robbery were as follows:

5.             My two co-accused and I went to the shop of Mr Gouws on 15 August 2015.  as far as I knew, we were going to the shop to buy cigarettes, but when we got there, and Mr Gouws came out, my two co-accused attacked him.  I joined in the attack and we all stabbed him in various places on his body and forced him into the house.

6.             Inside the house accused no. 3 gained access to the safe, from which I took a revolver and some rounds of ammunition.   

7.             There was also an old lady in the house, who was held at knife point.

8.             After I got the revolver I left the house, leaving my two co-accused there.  The old man and the old lady were alive when I left the scene.  I took the revolver and the ammunition with me.”

[10] In turn, accused 2 pleaded guilty to count 3 and not guilty to counts 1, 2, 5 and 6.  In his plea explanation i.e. Exhibit B, accused 2 said in the relevant portions:

“8.           The offence was committed in the following circumstances.

9.             I admit that on the 15^th of August 2015, I was with Accused no 1 and Accused no 3 at the place that sells alcohol, and Accused no 1 suggested that we go to Pinevale Farm and to rob Mr. Ruben Gouws and Mrs. Hermina Gouws (herein referred as deceaseds);

10.          On the way to farm, I informed Accused no 1 and Accused no 3 that I am known by both Mr and Mrs Gouws and that I will wear a balaclava order for them to not recognise me.

11.          On arrival at the aforesaid farm, Accused no 1 and Accused no 3 called out Mr Gouws to come to the gate to assist us, as we pretended to want to purchase something from the farm.

12.          I admit that once Mr Gouws was at the gate Accused no 1, pulled a knife and tackled him and overpowered him.  We went with him to the farm house and we gained entry at the kitchen.

13.          I confirm that once we were at the farm house, Accused no 1 went further into the house and left us with Mr. Gouws.  After few minutes, Accused no 1 came back with Mrs Gouws.

14.          I confirm that we asked Mr Gouws for the safe keys and he handed the keys to Accused no 1 and we went to the room that had a safe and we opened the safe.

15.          I confirm that we opened the safe; we found two rifles, a revolver and ammunition.

16.          I confirm that Accused no 1 took the revolver for himself and Accused no 3 took the two rifles and ammunition.  I confirm that I took the box that had jewellery and other items.

17.          I confirm that when we robbed the deceased’s we were acting in concert and in the furtherance of a common purpose.

18.          I confirm that while we were taking items in the house, Mr Gouws tried to run away, but he was chased by Accused no 1 and Accused no 1 stabbed Mr Gouws numerous times in his back.

19.          I confirm that we tied up Mr Gouws and Mr Gouws with ropes and when we left the farm house both of them were still alive.

20.          We left the farm house and when we were about 200 metres away from the farm house, Accused no 1 said that he was going back to the farm house as he had dropped his hat inside the house.  Accused no 3 and I left him and went home.

21.          I admit my actions were wrongful and unlawful, and punishable by law.

22.          Therefore, humbly request this Honourable Court to consider my plea as a sign of deep remorse for my actions and to exercise a degree of mercy when handing down sentence.” (Sic)

[11] Accused 3 pleaded guilty to all the counts.  His plea explanation is marked Exhibit C.  The facts surrounding the plea of guilty were dealt with as follows:

“4.1        That on the 15^th August 2015 and at Pinevale Farm, Ida in the district of Dordrecht.  Myself and my 2 co-accused (Sipho Zweni & Siphosethu Matoni) decided to go and rob at Mr. & Mrs. Gouws’s Farm.

4.2          On arrival in that farm I called Mr. Ruben Gouws pretending that we intended to buy from their tuck shop.  He came to us and we grabbed him and tied him with a rope that was lying in a nearby shack.  Sipho stabbed him with a knife at his back but I am not sure and where.

4.3          We demanded money from him and he told us there is no money but I got a scarf and wrapped his neck around wherein thereafter we strangled to kill him.  His mother was under the table and after he stopped breathing we then moved to his mother under the table and used a scarf as well to strangle her.  After she stopped movements we then took items from the safe which was shown to us by Mr. Gouws and its keys.

4.4          The safe had money as well as firearms which we shared, I took a long firearm and Siphosethu took a long one as well and Sipho took the short one.  We then left the scene, I do not know where accused 1 went but me and Siphosethu went to hide the guns at a nearby old schoolin a ceiling.  We then went to our respective homes to sleep.  I and accused 2 slept at my place.

4.5          The early hours of the morning I was arrested by the police regarding these cases.  I then told the police what happened and how it happened and further pointed out how we committed this offence and the role of each of us.  I took the police to the scene and to the school where we hid the firearms.

4.6          Some of the items that were stolen from me were confiscated by the police and I also had some money which we got from the robbery.”   (Sic)      

[12] Mr Renaud, on behalf of accused 1, made an application in terms of Section 157(2) of the Criminal Procedure Act (the Act) seeking the separation of the trial of accused 1 from that of accused 2 and 3 on the basis that accused 1 intended to call accused 3 as a defence witness based on the statement accused 3 made to the police, which, as I understood his argument, tended to exonerate accused 1 from the commission of murder charges and some other portions of accused 3’s evidence which were favourable to his defence.  Mr Renaud argued that if the application was not granted at that stage, that would prejudice the accused, because accused 1 would not be able to call accused 3 as a witness in respect of these aspects especially if accused 3 elected not to testify in his defence.    

[13] The application was opposed by Mr Robinson, for the state, on various grounds.  Paramount to those was that the state shall be prejudiced if separation was granted because the state was relying on common purpose and that the circumstances of this case favoured that the accused be charged together.

[14] Ms Mazibukwana on behalf of accused 3, submitted that there was no need for a separation of trials because accused 3 would testify in any event.

[15] I made a ruling dismissing the application with reasons to follow.  The reasons why I dismissed the application are that:

15.1    I had to weigh both the prejudice accused 1 and the state would suffer if the separation was granted or refused.  Based on the nature of the matter at hand, especially the pleas, their plea explanations and the fact that the state was relying on common purpose, I was of the view that the prejudice accused 1 would suffer was outweighed by the interests of justice. 

15.2    The undertaking by accused 3 that he was in any event going to testify in his defence;

15.3    A safeguard that accused 2 could in any event bring an application for separation of trail again at any stage during trial more especially if accused 3 elected not to testify.

Evidence for the state:

[16] L. W. (L.) testified that on 15 August 2015 in the afternoon he and M. D. (M.) were riding their bicycles from watching a soccer match.  While approaching the deceased’s farm (Mr Gouws), they saw a male person running towards them.  When that person reached them, he grabbed and pulled M.’s bicycle.  M. resisted.  That person came to him and grabbed his bicycle.  He resisted.  That person, who he identified as accused 1, pulled a firearm from his waist and pointed it at him.  He let loose the bicycle and accused 1 rode away.     

[17] He took M.’s bicycle and chased after accused 1.  He telephoned his brother L. who was at the soccer field.  When he got closer to accused 1, the latter got off the bicycle and pointed him with a firearm.  Accused 1 rode off and joined an old road which was going towards the old Ida school.  M. and his father appeared in the latter’s car and followed accused 1.  His brother appeared and joined the chase.  M.’s father stopped the motor vehicle next to accused 1.  M. alighted and chased after accused 1 on foot.  Accused 1 pointed a firearm at M..  M. caught up with accused 1.  Accused 1 dropped the firearm.  M. grabbed accused 1 and a struggle between them ensued.  Local people arrived and assaulted accused 1.  L. telephoned the police who later arrived and arrested accused 1.  Accused 1 gave information to the police about what occurred at Mr Gouws’ house.   

[18] When it was put to L. that accused 1 did not rob the bicycle, he retorted that accused 1 did because when they refused to hand over the bicycle, accused 1 produced a firearm and pointed it at them thereby forcefully taking the bicycle.  Nothing turns on his cross-examination.  He was a good witness who gave a straight forward account of the encounter he had with accused 1. 

[19] M. confirmed the evidence of L. in all material respects in so far as to how they met accused 1.  He testified that after L. telephoned his brother, he went to report to his father that accused 1 had robbed them.  He and his father gave chase in his father’s motor vehicle and L. pointed to them the direction accused 1 took.  They came across accused 1.  Accused 1 pointed a firearm towards them.  His father opened the driver’s door. Accused 1 dropped the firearm and ran away.  He chased and caught up with him and they fought.  Local people arrived and assaulted accused 1.  He testified that accused 1 was apprehended next to the old Ida school.    

[20] M. D. (M.) is the father of M..  He confirmed the evidence of M. in so far as it related to him and what took place in his presence.  He confirmed that after they caught up with accused 1, the latter pointed them with a firearm.  He went to him.  Accused 1 dropped the firearm and lifted his hands up.  As he was closer to him, accused 1 ran away and M. chased and caught up with him.  Accused 1 made a report about what they did at Mr Gouws’ house.  Community members, who had gathered around accused 1 started to assault him.  Accused 1 had a plastic money bag which contained coins and cartridges.  Police arrived and he gave it to them.  Accused 1 was arrested.  

[21] Constable Nolindo Tunu (Constable Tunu) testified that she was on duty when she got a telephone call from L. W. who reported a robbery to her.  She left in the company of her colleague, Constable Xolani Makhanda (Constable Makhanda).  She was directed to old Ida school.  It was at dusk.  They spotted headlights and went towards that direction.  It was M.’s motor vehicle.  She drove past it and a bicycle lying on the ground next to a group of people.  Accused 1 was lying on the ground.  Local people wanted to assault him.  She was given a revolver, a plastic money bag with coins and cartridges by M. alleging that they got those items from accused 1.  They arrested accused 1.  Accused 1 gave them information which led them to Mr Gouws’ house.

[22] She and Constable Makhanda got inside Mr Gouws’ yard.  Before they could reach the door, she spotted blood spots on the ground.  The burglar door was locked and they could not get inside the house.  She peeped through a window and could see that there was a white male lying on the floor.  Local Farmers who had gathered at Mr Gouws’ house, forcefully opened the door.  She did not enter the house but instead took accused 1 to the police van and remained with him.  The station commissioner, Warrant Officer Swart arrived and took over the crime scene.  Accused 1 implicated accused 2 and 3 who were known to him. 

[23] At about 2h00 they got information about accused 2 and 3’s whereabouts.  They i.e. her and Constable Makhanda proceeded to accused 3’s sister’s house.  As they were alighting with the car lights shining at the door, they saw accused 3 approaching to answer the door.  On realising it was the police, accused 3 ran back to the house.  They splitted and she went round the house.  She heard a single gunshot.  Accused 3 suddenly appeared around the house.  She pointed him with a firearm and they arrested him.  Accused 3 was taken to the police station.  Accused 3 was searched and they found money.

[24] At the charge office, she advised accused 3 of his Constitutional rights which were contained in a form titled Notice of Rights.  After apprising accused 3 of his legal rights, she and accused 3 signed the form.

[25] She further testified that she apprised accused 2 of his legal rights as well.  Nothing turned on the cross-examination of this witness.

[26] Constable Makhanda confirmed the evidence of Constable Tunu pertaining the events that occurred in his presence.  He testified that after he found accused 1 with M.and local people, he enquired from him where he got the revolver.  Accused 1 told him that he got it from Mr Gouws’ house.  He confiscated the firearm and took accused 1 to Mr Gouws’ farm.  They came across blood spots on the ground leading to the house.  He and other farmers forcefully opened the door to Mr Gouws’ house.

[27] Having forcefully opened the door, they found Mr Gouws lying in a pool of blood.  His hands were tied with a white rope behind his back.  He called warrant officer Swart who was his supervisor.  Warrant officer Swart took over the crime scene.  He went to the police station and detained accused 1 after he informed him of his Constitutional rights.

[28] Thereafter he and Constable Tunu went to arrest accused 3 as described by the latter in her evidence.  He testified that at the police station he searched accused 3 and found two wallets containing money.  They discovered that accused 3 had blood spots on his clothing.  They ordered him to take off his clothes so that they could be sent for DNA analysis.  It turned out that accused 2 would remain in his underpants.  They decided to go and fetch clothes from his sister’s house.  When they got to accused 3’s sister’s house they decided to conduct a search.  Warrant officer Swart opened a wardrobe only to find accused 2 hiding in it.  They placed accused 2 under arrest.

[29] He further testified that accused 3 led them to a building where he pointed out two rifles which were hidden in a ceiling.

[30] Phillapus Martin Swart (Warrant Officer Swart) testified that on 15 August 2015 he received a phone call from a local farmer about a robbery at Mr Gouws’ farm.  He instructed Constables Tunu and Makhanda to go and investigate.  He followed and found accused 1 at the farm.  He took accused 1 and placed him in his van and locked it.  Accused 1 had blood on him and showed signs that he had been assaulted.

[31] On the farm, he noticed dried drops of blood leading to the house.  Inside the house, he noticed blood stains on the floor.  In another room, he discovered the dead body of Mrs Gouws lying on the floor under a table.  He saw the body of Mr Gouws lying in a pool of blood in another room with his hands tied with a telephone extension cord.  He noticed an opened firearm safe.

[32] The state called the evidence of Dr Siyabonga Jwaqa who conducted the post mortem report.  He testified that he had been practising as a pathologist for the Department of Health from October 2003.  He conducted the post mortem in respect of both deceased persons.

[33] In respect of the deceased, Mr Gouws, he found that he had 17 stab wounds, 11 of which were fatal.  He noted the chief post mortem findings as:

“1.           History of getting stabbed;

2.                   Has hands and legs tied by a strong white rope;

3.                   Has a cloth tied tightly around the neck;

4.                   Has multiple stab wounds and incisions.”

He concluded that cause of death was:

“1.           Multiple stab wounds;

2.             Manual strangulation.”

[34] He noted amongst other injuries that the hyoid bone above the voice box had been fractured meaning that severe force was used in strangling Mr Gouws.

[35] In respect of Mrs Gouws, he found as chief post mortem findings:

“1.           History of strangulation;

2.             Has signs of manual strangulation and severe blunt force trauma to the head;

3.             Has signs of recent injury to the vagina.”

[36] He also noticed that her hyoid bone was also fractured.  She opined that the cause of death was:

“1.           Manual strangulation;

2.             Head injury following blunt force trauma.”

[37] In respect of both deceased, Dr Jwaqa noted the following injuries to the heart and pericardium:

“Congestion and oedema petechial haemorrhages.”

[38] Dr Jwaqa agreed with Mr Renaud that such injuries would occur if a person is alive at the time of strangulation.  Dr Jwaqa further admitted that the proximate cause of death was strangulation.  He opined further though that the deceased would have died anyway if there was no medical intervention referring to what in medical terms is a golden hour within which a person’s life could be saved if there is medical intervention. 

[39] He proceeded to the charge office with accused 1.  On arrival he apprised him of his legal rights.  Constable Makhanda served as an interpreter.  He noticed blood stains on the clothes of accused 1 and ordered him to take them off.  As accused 1 was taking his clothes off, a live round of a .22 revolver fell from accused 1’s pocket.  Constable Makhanda gave him a sum of R20.00 in coins, a gold ring with 3 diamonds alleging that it was found with accused 1.  He sealed all of them and gave them to the investigating officer.

[40] Later on, he dealt with accused 3.  He advised him of his legal rights.  Accused 3 led them to Ida old school where he pointed out 2 rifles which were hidden in the ceiling.

[41] At the police station, he searched accused 3 and found two wallets containing a sum of R3 670.00.  He ordered accused 3 to take off his clothes and he remained in his underpants.  He and constable Makhanda went to fetch clothes for accused 3 at his sister’s home.  At that homestead they found accused 2 hiding in a wardrobe and arrested him.

[42] After he was informed that there were other items which were missing he decided to go to accused 3 and requested to search for the missing items.  With accused 2’s sister, they found a laptop and a digital camera belonging to the deceased persons.

Trial within a trial:

[43] A trial within a trial was held in order to determine the admissibility of a statement made by accused 2 to Captain Oelofse.

[44] Accused 2 objected to the admissibility of the statement on the basis that he was not advised of his Constitutional rights before he signed the statement.  In fact accused 2 contended that he did not make a statement at all, all that occurred is that he was told to append his signature on a document which he did not know the contents of.

[45] The state called the evidence of Warrant officer Rheeders who interviewed accused 2 after apprising him of his Constitutional rights.  On realising that accused 2 was implicating himself, Warrant officer Rheeders arranged for Captain Oelofse to obtain a statement from him.  He did the same with accused 3 who on realising that was implicating himself, he arranged for Colonel Oranje.  Throughout the interview with accused 2 he was assisted by Warrant officer Mtshiba as an interpreter.  With accused 3’s interview, he was assisted by Warrant officer Nchiba.  Both Warrant officers confirmed that and the fact that accused 2 and 3 were apprised of their Constitutional rights.

[46] Captain Oelofse testified that he apprised accused 2 of his Constitutional rights as per the pro-forma form.  He was assisted by Constable Akhona Mei as an interpreter.  I should mention upfront that accused 2 during his testimony and under cross-examination changed and admitted that indeed Captain Oelofse advised him of his Constitutional rights and he elected to make a statement.  Accused 2 further changed his evidence to say that he was the author of the contents of the statement.  Accused 2 testified that he made the statement freely and voluntarily without being influenced thereto.  Accused 2 testified that the statement was read back to him and he confirmed the contents and thereafter signed it.  He further confirmed that what was contained in the statement was the truth.

[47] I ruled the statement by accused 2 to be admissible.  The statement was handed in as Exhibit G.  For purposes of completion and for reasons to follow below, I shall refer to the contents of the statement by accused 2 which reads as follows:

“Last Sunday I was sitting in my house with Sipho & Lusindiso.  We had no money and decided to go and rob at the farm of the principle, Mr Gouws.  We decided to go this weekend because during the weekend there is no workers on the farm, no movement, and only Mr Gouws and his mother who is very old.  We knew nobody was going to disturb us.  We planned to get masks because Mr Gouws knows me and Lusindiso.  We could not get any masks, so when going there I thought I was going to kill them after getting the money.  I don’t know if my friends planned the same.

Yesterday, the 15^th we left my place at about three o’clock.  It was myself, Sipho and Lusindiso.  We were all carrying knifes.  We left on foot to the farm of Mr Gouws, and reach the farm at about four o’clock.  I know that he is always feeding his chickens from three o’clock till five o’clock, because he used to call me to assist on the farm.  He was my teacher at school.  When we arrived there, we did not find Mr Gouws outside.  Lusindiso called him, pretending that he wanted to buy something from the spaza shop.  I was standing about 15m from the door when Mr Gouws came out.  Sipho was next to Lusindiso.

When Mr Gouws came out, Sipho and Lusindiso grabbed him.  Sipho stabbed him several times on the hands.  I got a piece of rope from a nearby shack and tied his hands behind his back.  We all asked for money but Mr Gouws denied that there was any money.  We took Mr Gouws inside the house, it is there where I tied his hands.

Sipho went further in the house and came back with the old lady.  All of us were in one room now, I think it was the dining room.  When Mr Gouws saw Sipho he show the safe keys to Lusindiso who took it and gave to Sipho.  Mr Gouws showed us the safe in the room next to dining room.  The old lady was scared and tried to hide under the table in dining room.

Sipho opened the safe and we all took money from the safe.  It was notes and coins.  I got four hundred rand.  I don’t know how much my two friends got.  We also took fire arms.  I took a long one and Lusindiso also took a long fire arm, Sipho took a short fire arm.  We took Mr Gouws back to the dining room and pushed him to fall.  Lusindiso took a scarf from the coach and me and Lusindiso strangled Mr Gouws with the scarf.  We wrapped it around his neck and each one pulling to a different direction until he stopped breathing.  It took about three minutes.  He was crying before we killed him.  While we were strangling Mr Gouws, Sipho was holding his legs.

We then went to the old lady who was still hiding under the table.  I pulled her out by the hands.  She was screaming.  Lusindiso took the scarf from her middle.  I was holding her legs, while Sipho and Lusindiso strangled her with the scarf, the same way as we killed Mr Gouws.

I forgot to say that after we got the money from the safe, Sipho was still not happy.  He asked for more money and stabbed Mr Gouws.  I think he only stabbed him several times on the back.  We did not get more money.

Sipho left first with the fire arm and money he stole.  Myself and Lusindiso stayed a while longer checking if the old lady was really dead.  We wanted to be sure before we left, because she knew all of us.  We left about five minutes later, it was passed five o’clock.  We walked through the field.  We hided the fire arms at the old school in the ceiling on the way home.  We then went to sleep at Lusindiso’s place.  The police arrested me at that place.  I changed my clothes there by Lusindiso.”   

[48] All three accused made identical admissions in terms of Section 220 of the Act in the following terms that:

“1.           The deceased, RUBEN JACOBUS GOUWS, was 65 years old at the time of his death.

2.             The deceased, HERMINA JACOBA GOUWS, was 88 years old at the time of death.

3.             The deceased sustained no further injuries from the time that their bodies were discovered in their home on 15 August 2015 until post mortem examinations were conducted on their bodies by Dr. Jwaqa.

4.             The items referred to in Annexure “A” in the indictment belonged to the deceased and were robbed from their home on 15 August 2015

5.             The 450/455 calibre revolver with serial no. 1485, Martini Henry 577 calibre rifle with serial no. WR 37521 and the Remington .22 calibre rifle with serial no. 24301 referred to in the indictment and which were placed before court during the course of the trial, are in fact firearms as defined in the Firearms Control Act, No 60 of 2000.

6.             The .223 and .22 calibre rounds referred to in the indictment and which were also placed before court are in fact ammunition as defined in the Firearms Control Act, No 60 of 2000.

7.             I do not have a license, permit or authorization to possess a firearm and ammunition”

[49] I may mention in passing that Christiaan Johannes Gouws, the son and brother of the deceased and Petrus Johannes Venter (Mr Venter), the son in law of the deceased Mrs Gouws, testified that the deceased always wore her wedding ring.  It was valuable to her because it was a substitute wedding ring which was bought by her husband on their 40^th wedding anniversary.  Mr Venter further identified the firearms, the laptop and camera as belonging to the deceased persons.

[50] The state case was closed.  Accused 1 elected not to testify and closed his case.  Accused 2 and 3 testified in their defence.

The defence case:

[51] Accused 2 testified that on 15 August 2015, he, accused 1 and accused 3 proceeded to buy tobacco from the deceaseds’ shop.  On arrival, accused 1 called out Mr Gouws and told him what he wanted.  Mr Gouws came out and stood at the steps in front of the house.  Accused 1 grabbed Mr Gouws from behind.  He and accused 3 joined, assisted accused 1 in grabbing Mr Gouws.  Mr Gouws resisted getting inside the house by holding onto the security gates.  Accused 1 took out a knife and stabbed him on the hands.  They managed to get inside the kitchen.  They tied Mr Gouws with a rope that they found in the house.

[52] They asked for money.  Mr Gouws said he did not have a lot of money at the house.  Accused 1 proceeded to other rooms and subsequently came back with Mrs Gouws.  They demanded money from her.  Mrs Gouws had a few coins.  They proceeded to search the other rooms.  Accused 1 demanded safe keys.  Mr Gouws directed him to where the keys were.  Accused 1 opened the safe.  They found two rifles and a few coins.  Accused 1 got on top of the safe, removed cardboard and took out a revolver.  At the time Mr Gouws was with them while Mrs Gouws was in the dining room.  The three of them left the house and half-way, accused 1 turned back, saying he had forgotten his hat in the farm house.  He and accused 3 proceeded to his home.  He was arrested early in the morning hiding in a wardrobe.

[53] Accused 2 further testified that Mr Gouws was only stabbed by accused 1.  He did not see anybody stabbing Mrs Gouws.  He stated that at the time they left both Mr and Mrs Gouws were still alive.  He left the house carrying a laptop only.  Accused 3 was carrying 2 rifles.  He admitted to making a statement to Captain Oelofse.  However, he denied that he killed the deceased.  Accused 2 alleged that he was not well when he admitted that he made the statement during trial within a trial.

[54] Under cross-examination by Mr Renaud, accused 2 denied that accused 3 also called out Mr Gouws on arrival at the farm as he stated in his plea explanation.  Accused 2 said the correct statement was that accused 3 did not call Mr Gouws.  He ascribed the contradiction to the fact he was not fine on the day he made the plea explanation.  Accused 2 admitted that Mr Gouws knew him and accused 3 because he taught them at Ida school.  He claimed that both Mr and Mrs Gouws knew accused 1 as well.  When pressed under cross examination by Mr Renaud, accused 2 could not explain on what basis he claimed that the deceased knew accused 1.  He chopped and changed alleging amongst other things that accused 1 also grew up in the area.  It became apparent that accused 2 was not sure whether the deceased knew accused 1. 

[55] Accused 2 contradicted himself under cross-examination by Mr Robinson.  It became apparent that accused 2 was lying in many respects.  I shall refer to a few instances where that became apparent.  Accused 2 in his evidence alleged that he, accused 1 and 3 went to the shop to buy tobacco.  In his plea explanation he said they went there to rob the deceased.  In his plea explanation, accused 2 stated further that because he was known to the deceased, he decided whilst they were on the way to the deceaseds’ farm that he would wear a balaclava.  When confronted with this explanation, accused 2 repeated that it was probable that he was not feeling right at the time he made and confirmed in court the contents of his plea explanation.  When asked what he meant, he started to starter alleging that he was struggling to answer those questions.  When asked why was he struggling to answer the questions, he could not proffer any reason.  Numerous contradictions between his evidence and plea explanation were brought to accused 2’s attention and he was asked to comment.  All he said was that he was “not right or well” at the time he made the plea explanation.

[56] Under further cross-examination accused 2 mentioned that accused 1 not only stabbed Mr Gouws on the hands but also at the back when the latter tried to escape.  He denied that he made a statement to Captain Oelofse despite his earlier admission during the trial within a trial.  He denied further that he stabbed and strangled the deceased with scarfs.  Accused 2 could not answer why his statement to Captain Oelofse, his plea explanation and that of accused 3 tallied as against his evidence in court differed. 

[57] In his statement to Oelofse and in his plea explanation, accused 2 stated that the robbery was pre-planned and they proceeded to the deceaseds’ farm to rob them.  But when I asked him about the contradiction in this respect, accused 2 changed to say the idea to rob came about on arrival at the deceaseds’ farm.

[58] As it can be gleaned from the summary of the evidence, accused 2 was a poor witness and lied on numerous occasions.  His evidence is characterised by numerous contradictions on crucial aspects of this case.

[59] Accused 3 testified that on 15 August 2015 he, accused 1 and 2 left for the shop of the deceased with the intent to rob them.  On arrival at the shop, accused 1 went round the shop and called out Mr Gouws.  Mr Gouws came out.  Accused 1 grabbed him and accused 2 joined and assisted accused 1 and forced Mr Gouws back to the house.  Mr Gouws resisted by holding onto the security gate.  Accused 1 drew out a knife and stabbed Mr Gouws on the hands prompting him to let go of the security gate.  They got Mr Gouws inside the house and tied his hands with a rope.  Accused 1 went to another room and came back with Mrs Gouws.  They asked for safe keys.  Mr Gouws directed them to the keys.  Accused 1 took them and opened the safe.

[60] Inside the safe they found two rifles, a revolver and money.  Accused 1 took the revolver, he took one rifle and accused 2 took the other.  Accused 1 stabbed Mr Gouws on his back demanding money.  After that they took scarfs and strangled the deceased.  Accused 1 grabbed suitcases which were protruding from the top of the safe.  He checked through them.  Thereafter, accused 1 ran away living him and accused 2.  At that time Mr Gouws showed no signs of movement while Mrs Gouws was making slight movements.  Him and accused 2 left immediately after accused 1 had left.  They went to the old school and hid the rifles in one of the classrooms.  On the way to the old school he was carrying a rifle and money and accused 2 was carrying another rifle.  They never met accused 1 again that evening.

[61] Accused 3 testified that he was arrested by the police that evening and led them to the old Ida school where they hid the rifles.  Mr Renaud, confronted accused 3 about what he allegedly said to Colonel Oranje during a pointing out of the scene of crime.  Accused 3 denied certain aspects of the notes to the pointing out.  Accused 3 denied that the statement/notes were read back to him.  Colonel Oranje and Warrant officer Toto, who served as an interpreter, were recalled and disputed what accused 3 said about them not properly recording his answers.  The notes of the pointing out were handed in as Exhibit H by consent between the parties.

[62] Mr Renaud highlighted instances which either corroborated accused 1’s evidence or contradicted that of accused 2 and accused 3.  For example the following appears:

“Photo 23: Point to where he and Siphosethu strangled the white lady.

.

.

.

Photo 26: Point to where they (me and Siphosethu strangled the white man and left here).  Sic”

[63] In spite of what appears on the pointing out notes, accused 3 insisted that accused 1 assisted them in strangling the deceased by holding and pulling the scarf on the other side.  Accused 3 further insisted that is how he told Toto and Colonel Oranje.

Argument:

[64] Mr Robinson argued for the conviction of accused 1 as charged.  He argued that though the confession of accused 2 is not admissible against accused 1, accused 2 when he testified he confirmed the truthfulness of the contents of the confession and thus testified in court implicating accused 1 in the commission of the murder.  He argued further that accused 3 implicated accused 1 in the strangulation of the deceased.  He also argued for the conviction of accused 2 and 3 as charged.

[65] Mr Renaud argued that accused 1 cannot be convicted of the counts of murder on two major grounds, as I understood his argument.  Firstly, he referred to the cause of death as testified to by Dr Jwaqa.  He argued that the immediate cause of death was strangulation and not stab wounds.  He submitted that the stab wounds were fatal but Dr Jwaqa could not testify how long after the infliction of such wounds and the blunt trauma injuries in respect of Mrs Gouws would the deceased have survived but for the strangulation.  Secondly, the reason why Mr Renaud approached his argument in this fashion is because he argued that accused 1 left the farm house first, leaving the deceased still alive.  Accused 1 did not take part in the strangulation of the deceased and did not know at what stage that took place because he left accused 2 and 3 behind.

[66] Mr Renaud argued that in the notes in respect of the pointing out, accused 2 does not mention that accused 1 took part in the strangulation.  Furthermore the notes conflict with his direct evidence in court.  He argued further that the evidence of accused 3 was so poor that it should not be believed especially where he implicates accused 1.

[67] In respect of the robbery of the bicycle i.e. count 7, Mr Renaud argued that at the time of the pointing of the firearm at L., accused 1 did not utter any words to the effect that L. must hand over or give him the bicycle.

[68] Mr Mqeke argued that nothing implicates accused 2 in respect of counts 5 and 6 as he was not found in possession of the firearms. 

Analysis:

[69] What is clear from the evidence is that at the time the three accused decided to rob the deceased, they were acting in common purpose.  They formulated an idea (whether at the place where they were drinking liquor or on the way to the farm of the deceased) to rob the deceased of their belongings.  They were aware at that stage that violence would be used in the furtherance of the robbery hence the discussion amongst them about who is known or not known by the deceased.  It is not in dispute that accused 1 was the person who lured Mr Gouws out of his house and the first to draw out a knife and stabbed him.  Accused 1 admits this in his plea explanation even though in a differing way when he said:

“. . . my co-accused attacked him.  I joined and we all stabbed him in various places on his body and forced him into the house.”

[70] He further stated in his plea explanation that:

“There was an old lady in the house, who was held at knife point.”

[71] The doctrine of common purpose is formulated as follows:

“if two or more persons collude in an understanding with an unlawful purpose, each is responsible for the acts which the other performed in furtherance of the common purpose if he or she:

(i)       Foresaw the possibility that the other could perform that act in the furtherance of their common purpose; and

(ii)     Was indifferent to such acts and their consequences.”[1]

[72] In S v Mgedezi & Others[2] dealing with common purpose where there has been no proof of prior agreement, Botha JA said:

“In the absence of proof of a prior agreement, accused no 6, who was not shown to have contributed causally to the killing or wounding of the occupants of room 12, can be held liable for those events, on the basis of the decision in S v Safatsa and Others 1988 (1) SA 868 (A), only if certain prerequisites are satisfied.  In the first place, he must have been present at the scene where the violence was being committed.  Secondly, he must have been aware of the assault on the inmates of room 12.  Thirdly, he must have intended to make common cause with those who were actually perpetrating the assault.  Fourthly, he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others.  Fifthly, he must have had the requisite mens rea; so, in respect of the killing of the deceased, he must have intended them to be killed, or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue.”

[73] In the matter at hand, accused 1 was present at the scene of crime, he started the attack on Mr Gouws by stabbing him and he was reckless as to whether death would ensue or not.  Therefore he meets the prerequisites set out above.  The argument therefore by Mr Renaud about accused 1 having left early or having not participated in the strangulation of the deceased must fail.  It cannot be viewed as an act of disassociation with accused 2 and 3.

[74] Accused 1 did not testify and therefore I do not know what his defence basically is.  The evidence of accused 2 and 3 which implicates him has been left unchallenged.  I say so bearing in mind that it was of such poor quality.  I do not have the version of accused 1.  Accused 1 did not dispute by way of evidence that he was found in possession of the revolver and one live round of .22 as testified by Warrant officer Swart.

[75] L. testified that accused 1 took the bicycle after pointing them with a firearm.  The argument by Mr Renaud in this regard should be rejected.  The circumstances preceding the taking of the bicycle speak for themselves.  The undisputed evidence of L. and M. is clear in this regard.

[76] M.and M. testified that accused 1 pointed them with a firearm when they caught up with him next to the old school.  When M.proceeded towards accused 1, in spite of the pointing of the firearm at him, accused 1 dropped it and ran away.  There is no evidence to gainsay this.  I accept their evidence.

[77] There is no evidence before me that accused 2 was found in possession of any of the 2 rifles before court.  The person who was in possession is accused 3 to an extent that he went to point them out.

Consequently, I find the accused guilty as follows:

Accused 1:

Count 1 – Murder;

Count 2 – Murder;

Count 3 – Robbery;

Count 5 - Unlawful possession of a .450/455 calibre revolver with serial no 1485;

Count 6 – Unlawful possession of ammunition i.e. one round;

Count 7 – Robbery with aggravating circumstances; and

Count 8 – Pointing of firearm.

 

Accused 2:

Count 1 – Murder;

Count 2 – Murder;

Count 3 – Robbery with aggravating circumstances.

 

Accused 2 is found not guilty in respect of counts 5 and 6.

Accused 3:

Count 1 – Murder;

Count 2 – Murder;

Count 3 – Robbery with aggravating circumstance;

Count 5 - Unlawful possession of firearm;

Count 6 – Unlawful possession of ammunition.

_________________________

M MAKAULA

JUDGE OF THE HIGH COURT  

 

Counsel for the State:                     Advocate Robinson

 

Counsel for the Accused 1:           Advocate Renaud

Counsel for the Accused 2:           Mr Mqeke

Counsel for the Accused 3:           Ms Mazibukwana

 

Heard on:                                          03-04 May 2016 30-31 May 2016, 1-3 June 2016 & 1, 2, 4 & 11 August 2016

Delivered on:                                    11 August 2016

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