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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION)

CASE NO: CC50/2008

DATE HEARD: 9-11/6/08

DATE DELIVERED:12/6/08

NOT REPORTABLE

In the matter between:

THE STATE

and

THAMSANQA KOLITI ACCUSED 1

ANDRÉ WINDVOGEL ACCUSED 2

JUDGMENT

PLASKET J

[1] The accused are charged with three counts. The first is a charge of housebreaking with intent to rob and robbery with aggravating circumstances. The second and third are charges of murder. The State alleges that, on 9 June 2007, the accused kicked open the front door of the house of Siswe Reuben Zono and Nosipho Catherine Nelo (whom I shall refer to as the deceased), entered the house, assaulted the deceased and stole a number of items. The murder charges arise as a result of the assaults upon the deceased with an axe, a knife and a panga, both of them dying as a result of sharp force to the head.

[2] Both accused pleaded not guilty to all of the charges. Accused no.1 gave a detailed plea explanation to the effect that, on the evening of 9 June 2007, he and accused no. 2 were in each others company, that they had decided to rob the deceased but that he did not enter the house. He stated that he heard the deceased in count 3 screaming and it was only thereafter that he entered the house on accused no. 2’s invitation. He saw the deceased lying on the floor, their bodies covered with clothes. He took eight beers from the fridge and went back to his house. Accused no. 2 joined him there a while later. He had a television set and speakers. They drank the beers together. He claimed to have been afraid of accused no. 2 when the suggestion was made that they rob the deceased and he stated that he had no part in the murder of the deceased, he did not know that accused no. 2 was going to break into the house and that he never knew that the deceased were to be murdered.

[3] Accused no. 2’s defence was disclosed to be an alibi, it emerging in the cross-examination of one of the State witnesses that he would say that he had been playing cards with his step brother at the time the offences were committed. He later chose not to give evidence or to call any witnesses.

[4] The evidence of Dr Stuart Dwyer, the Chief Forensic Medical Officer for Grahamstown, was not placed in dispute. It was to the effect that the male deceased had endured large head wounds, caused by sharp force, two fractures of the skull under two of the wounds and intracranial bleeding. The female deceased endured multiple head wounds caused by the application of sharp force, four fractures of the skull under some of these wounds and intracranial bleeding. An axe and panga – exhibits 1 and 2 -- were found on the scene close to the bodies of the deceased.

[5] The photographs taken by the police of the house of the deceased depict the following: first, that a locked door had been forcibly opened, as the door and doorframe are damaged, the locking mechanism is in the locked position and the door stood open; secondly, the house had been ransacked; thirdly, that the bodies of the deceased had been covered with clothes apparently pulled out of a cupboard; and fourthly, that judging from the proximity of the deceased to the bed and their attire, they were probably in bed when they were attacked.

[6] The State’s case rested principally on the evidence of three witnesses, Ms Viginia Israel, Ms Nontsikelelo Jonas and Ms Elizabeth Stevens, bolstered by largely formal evidence of two policemen and a neighbour and certain admissions made by the accused.

[7] The admissions of significance are that the deceased died on 9 June 2007 as a result of head injuries caused by sharp force; that the injuries recorded in Dr Dwyer’s post mortem reports ‘were inflicted during an incident on 9 June 2007 leading to the death of the two deceased’; that the contents of the post mortem reports and the photographs taken at the scene ‘are admitted as correct’; and that the items recovered by the police ‘are the property of the deceased’.

[8] Ms Israel is the girlfriend of accused no. 1. She testified that she, accused no. 1 and her nine year old son lived in a room behind the house of accused no. 2 who is well-known to her and a relative of hers.

[9] On the evening of Saturday 9 June 2007, she, accused no. 1 and her son had gone to bed when accused no. 2 arrived. He told them, as she put it, that ‘hy soek geld en hy smaak drank’. He invited accused no. 1 to go with him. He did so. Before the two of them left, however, accused no. 2 took a knife with a yellow handle from one of the drawers, saying that he cannot go out without a knife.

[10] She went back to sleep but was woken up a while later when the two of them returned. Accused no. 1 carried five quart bottles of beer and accused no. 2 carried nothing. The three of them drank four of the five beers. The two accused left again. Accused no. 1 returned shortly thereafter and got into bed. Accused no. 2 then returned carrying a portable television set and three small speakers. (These items were exhibits 3 and 4 and were admitted by the accused to have been the property of the deceased.) They were placed in the room. When she asked accused no. 2 where these items had come from, he said that they had taken them from where the people selling liquor had been killed. She assumed that he was referring to the deceased, who sold liquor in the area. They drank the fifth beer and all went to sleep in the room.

[11] The next morning Ms Israel asked accused no. 2 where her knife was. He said that he had used it to stab someone and, in so doing, had broken it. Accused no. 2 then left, leaving the television set and speakers in the room. When she asked accused no. 1 what had happened in relation to the acquisition of these items, he refused to tell her. On that afternoon, after the bodies of the deceased had been found, accused no. 2 instructed accused no. 1 to remove the items from the room and hide them. He hid them in the veld.

[12] She was asked about whether a fight had occurred on the afternoon of Saturday 9 June 2007 in which accused no. 2 had stabbed accused no. 1, as he had alleged in his plea explanation. She denied that this had happened but said in cross-examination that she and accused no. 1 had fought that afternoon. She said that she was responsible for his wounds. She acknowledged in cross-examination that she had consumed about 2 ½ litres of sorghum beer during that Saturday, having shared 5 litres of it with accused no.1, and that she was under the influence of alcohol when accused no. 2 arrived that evening. She denied that she was so drunk that she could not remember what had happened.

[13] Ms Nontsikelelo Jonas testified that on the evening of Saturday 9 June 2007 she found herself outside the house of the deceased. She was looking for her friends. She noticed someone peeping through one of the windows of the house. The person came out of a side door and she thought this was one of her friends. She swore at the person but he jumped over the back fence. She went around to the street he had entered and recognised accused no. 2 as he passed her at a distance of one metre. She was able to identify him by the light of a street light. She knows accused no. 2 as he is a friend of her boyfriend. Accused no. 2 carried a knife in his hand. It was, she said, similar to the panga that was exhibit 2.

[14] Ms Elizabeth Stevens testified that in the early hours of 10 June 2007, accused no. 2 woke her and her boyfriend at their house. He carried a case of beers and asked them to keep it for him. They agreed to do so. He left but returned at 08h00 and asked for two of the beers. He also had a DVD player which he offered to Ms Stevens. She took it, placed it in a black plastic bag and put it away under a bed. Later that day accused no. 2 ‘s sister came and collected the rest of the beers. Later still, she discovered two speakers in a plastic bag outside in her yard.

[15] That afternoon, she stopped at a shop on her way to visit a friend. She heard people talking about an incident in which people had been robbed and murdered. She went to accused no. 2 and told him to take his goods but he said that it was still too early to do that. A while later she reported what had happened to members of the Street Committee. The police were called and they collected the items from Ms Stevens. (These items were exhibits 5 and 6 and were admitted by the accused to have been the property of the deceased.) Ms Stevens accompanied the police to arrest accused no. 2. He tried to run away but was caught nonetheless. She knew accused no. 2 well and has known him for a long time.

[16] Accused no. 1 testified that he and his girlfriend, Ms Israel, had consumed 5 litres of sorghum beer during the course of Saturday 9 June 2007. When they drink, they often fight, and that day was no different. In this fight, however, accused no. 2 got involved and stabbed accused no. 1 on the neck and on the finger. He was stabbed with the knife with the yellow handle that belonged to Ms Israel.

[17] He later went to bed. When he awoke, accused no. 2 was in the room. He apologised for having injured accused no. 1 earlier. Accused no. 2 invited accused no. 1 to share a few beers with him saying that he had two beers at No. 14 Ngcuka Street, the house of the deceased. He got dressed and went with accused no. 2.

[18] When they approached the house, accused no. 2 suggested that they rob the deceased. Accused no. 1 said that they know him and would identify him. Accused no. 2, he says, appeared to be angry and said that he would force them to cover their faces so they would not be able to identify accused no. 1, whose task would be to take items of property from the house.

[19] Accused no. 1 said that he decided not to argue. They jumped over the gate and entered the yard. He claimed to have done this out of fear for accused no. 2. He was scared of the knife that accused no. 2 carried and thought of the incident earlier that day when accused no. 2 stabbed him. He stood at one of the back corners of the house while accused no. 2 went to the back door. Accused no. 2 He first knocked on the door and listened for a while. He then kicked the door open and entered the house. After a while, he heard the screams of the female deceased. Accused no. 2 came out and gestured for him to enter the house, which he did. Having done so, he peeped through the curtain that separated the bedroom part of the house form the rest of it. He saw a person lying on the floor, and assumed it was the female deceased. Her body had clothes strewn on top of it. He went to the fridge and took eight quarts of beer. He proceeded to his home. As he left, accused no. 2 was disconnecting the DVD player.

[20] When he arrived home, he began to drink the beers. A while later accused no. 2 entered. He was carrying the television set and the three small speakers – exhibits 3 and 4. Both accused and Ms Israel drank the beers. They then all slept in the room. Accused no. 1 denied having gone out again as alleged by Ms Israel.

[21] When he awoke the following morning, accused no. 2 had left the room and was in the main house. He decided to go to his parental home to eat. On the way, he heard of the death of the deceased. He confronted accused no. 2 who said that the cause of the problem was the male deceased who had woken up and resisted with an axe. He also asked accused no. 2 to take the television set and speakers. He handed them over a fence to accused no. 2.

[22] Accused no. 1 claims that he had not part in the killing of the deceased, that he did not know that accused no. 2 was going to kill them and that he did not foresee that he would.

[23] Having set out the evidence of the main witnesses, I shall proceed to assess the evidence of the State witnesses before turning to a more detailed analysis of accused no. 1’s evidence.

[24] Ms Israel’s evidence was subjected to criticism by Mr De Jager, who appeared for accused no. 1, on account of the fact that she was drunk and that, on that account, her evidence was unreliable. It is noteworthy that Ms Israel was forthright in admitting to having consumed a fair amount of sorghum beer, and some beer when the accused returned from robbing the deceased. She stated, however, that she did not consider herself to be very drunk. All that accused no. 1 said of her state of sobriety was that after they had consumed the sorghum beer (which was, he said ‘very early that day’) both of them were drunk. He did not attempt to quantify how drunk they were. Later when the accused returned from robbing the deceased, he said that Ms Israel did not appear to be drunk. On this basis, it appears to me that Ms Israel’s evidence can be accepted that from the time when accused no. 2 arrived until both accused and her went to bed, she was not so drunk that she would not have been able to remember what happened.

[25] In any event, I was impressed with Ms Israel as a witness. She gave her evidence in a forthright and logical manner. She made concessions when she had to and was willing to admit mistakes when they were pointed out to her. She stated that she still considers accused no. 1 to be her boyfriend and no cogent reason was advanced why she would want to falsely implicate him or her relative accused no. 2 in the offences with which they are charged.

[26] To a large extent, in my view, the criticisms of her evidence relate to issues that are not particularly significant and the differences between her evidence and that of accused no. 1, when the evidence as a whole is considered, also not material: for instance, when the evidence is viewed holistically, it is of little moment that accused no. 2 may have inflicted two minor wounds on accused no. 1 when intervening on Ms Israel’s behalf in the fight between her and accused no. 1, if one accepts accused no. 1’s version of events. I shall deal more fully with this aspect when I analyse the evidence of accused no. 1.

[27] My conclusion in respect of Ms Israel is that she was a satisfactory witness whose evidence I accept.

[28] Ms Jonas testified to seeing accused no. 2 as he left the house of the deceased on the evening of 9 June 2007. In my view little can be said against her as a witness. Her evidence is straight forward. I can see no merit in the argument of Mr Renaud, who appeared for accused no. 2, that her evidence is so improbable that it ought to be rejected. She knows accused no. 2, she was outside the deceased house looking for her friends and she saw accused no. 2 from a distance of a metre in an area illuminated by a street light. In my view, Ms Jonas was a good witness and her identification of accused no. 2 was reliable. I accept her evidence in its totality.

[29] Ms Stevens also impressed me as a witness. No serious criticism of her evidence can be made and the suggestion that she was party to a conspiracy to falsely implicate accused no. 2 can safely be rejected, being devoid of any evidentiary foundation and being improbable in the extreme. Such a conspiracy would have required the complicity of all of the State witnesses, including the investigating officer, and this was never suggested to them. It would also have required Ms Stevens to substitute the identity of the person who brought the DVD player to her for that of accused no. 2 for no reason at all.

[30] That brings me to accused no. 1. I have set out what he said in his evidence in chief but it was his cross-examination that was far more significant. He had testified that all that he saw when he entered the house of the deceased was the legs of the female deceased. Implicit in this was that he did not know that the deceased had been killed by accused no. 2. He also testified that he only heard that the deceased were dead when he went to his parental home on Sunday morning. When it was pointed out to him by Mr Renaud that the bodies of the deceased were only found during the afternoon, he got himself into all sorts of problems explaining away his earlier evidence. His attempt to do so was far from convincing.

[31] When he was cross-examined on the stabbing incident he was unable to suggest a reason why his girlfriend would deny that accused no. 2 had stabbed him, but admit instead that she had done so. He could not explain why it had not been put to Ms Israel when she was cross-examined that she had punched him on the nose, as he had alleged

[32] The next aspect on which accused no. 1 experienced difficulty was his failure to mention to anyone that he had been coerced to take part in the robbery. One would have expected him to have told his girlfriend at the earliest opportunity. He had no rational explanation for his failure to do so. He was arrested on Monday 11 June 2007 and made a warning statement the next day. He admitted that he made no mention in it of being coerced by accused no. 2. Once again, he was not able to offer an explanation of any substance. Thirdly, he said that he contacted the investigating officer and made a statement to him in March 2008 in which he also made no mention of having been coerced to take part in the robbery. While I do not suggest that accused no. 1 does not have a right to silence, it appears to me to be strange in the extreme that if he had been coerced by accused no. 2 he would have maintained his silence on this through thick and thin – and spend a year in prison awaiting trial.

[33] I turn now to accused no. 1’s cross-examination on what happened at the house of the deceased. He conceded that after accused no. 2 had told him that the plan was to kick open the door and rob the deceased he jumped over the fence into the yard of the house with accused no. 2 and that he was not forced to do this. He knew that accused no. 2 was armed with a knife. Once in the yard he expressed a reservation: it was that he was concerned that the deceased would recognise him. At this point he claimed that accused no. 2’s face changed but all that he said was that he should not worry because he – accused no. 2 – would go in, grab the people in the house and threaten them with the knife.

[34] He further conceded that he knew that the deceased would resist any attempt to steal from them and would try to raise the alarm. He realized that force would have to be used to overcome resistance, going on to say that no one will simply give away their possessions and that force would be necessary to take them.

[35] Then, after hearing the screams of the female deceased, he entered the house to take beers. He claimed to have peeped through the curtain into the bedroom to see if the deceased had been neutralised, so to speak, only seeing the legs of the female deceased where she lay on the floor under a pile of clothes. He claims not to have seen the male deceased. He got himself into some difficulty on these aspects. First, he was unable to explain, if he did not know that the deceased had been killed, why he entered the house openly and only peeped through the curtain once he was inside. He was constrained to change his version and insist that all along he had said that he had peeped in at the door and again through the curtain once inside. Secondly, when he testified to only seeing one of the deceased, he stated that he thought the other deceased was also under the pile of clothes. This belief on his part, and having seen the legs of one of the deceased on the floor, is simply inconsistent with a belief that they were still alive.

[36] Accused no. 1 was a poor witness. As I have indicated in my summary of his cross-examination, he was evasive on a number of occasions, he changed his version when it suited him and he was unable to explain crucial aspects of his version on a rational basis.

[37] I am of the view that his version that he was coerced into participating in the offences is false beyond reasonable doubt and must be rejected. This version is inconsistent with Ms Israel’s evidence concerning the events prior to the commission of the offences and both her evidence and his subsequent to the commission of the offences. He was unable to explain satisfactorily why he never disassociated himself by running away or reporting to the police when accused no. 2 entered the house. His failure thereafter to inform anyone of the alleged coercion is telling.

[38] Instead, on his own version, he entered the yard of the deceased voluntarily knowing of the plan to break into the house and rob the deceased and knowing that accused no. 2 was armed with a knife. After accused no. 2 had attacked the deceased, he entered the house when accused no. 2 beckoned that he should do so, and proceeded to steal beers. He displayed no signs of being anything but a voluntary participant throughout.

[39] It is significant, in my view, that accused no. 1 does not rely on an express threat on the part of accused no. 2 to force him to participate. Instead, he relied on accused no. 2’s face changing, and he thought of having been stabbed by accused no. 2 earlier. In my view, given the poor quality of his evidence, the generally satisfactory quality of Ms Israel’s evidence and the general probabilities, it is my view that his version that he was stabbed by accused no. 2 is false beyond reasonable doubt. But even if it was to be accepted, it cannot logically serve as the foundation for the alleged coercion for two reasons: first, it occurred in the context of a domestic quarrel in which accused no. 2 would have come to the assistance of Ms Israel and secondly, it was a thing of the past as accused no. 2 came to accused no. 1’s room, apologised and invited him out for a drink.

[40] In my view, the evidence of accused no. 1 does not establish his defence of coercion: it falls short of establishing that he was threatened to take part in the commission of the offences and it fails too to establish that participation in the offences was a reasonable means of averting the alleged danger to himself. (See Burchell Principles of Criminal Law (3 ed), 259-266.) That being so, it is now necessary to turn to whether the evidence established the guilt of the accused beyond reasonable doubt and, if so, in relation to which offences. I shall deal with the position of accused no. 2 first.

[41] The evidence against accused no. 2 is overwhelming and he has given no evidence that can gainsay the evidence of the State witnesses and accused no. 1. I accept the evidence of Ms Israel that accused no. 2 armed himself with a knife before leaving her room with accused no. 1 and that he returned with the television set and small speakers, property that is admitted to belong to the deceased. I also accept her evidence that accused no. 2 admitted that these items were taken from the deceased’s house and that he mentioned at an early stage – on the Sunday morning – that the deceased had been killed. This was at a stage when their bodies had not been discovered yet.

[42] I accept the evidence of Ms Jonas that she saw accused no. 2 exiting the house of the deceased on the evening of 9 June 2007, and that he was armed with a knife. I accept too the evidence of Ms Stevens that accused no. 2 brought a DVD player stolen from the deceased to her house on the morning of 10 June 2007. I accept as the only reasonable inference to be drawn that he placed the bag containing two speakers in her yard.

[43] While I have criticised the quality of accused no. 1’s evidence, I am in agreement with the submission of Mr Coetzee who appeared for the State that it should be accepted to the extent that it is not in conflict with the evidence of the State witnesses or improbable. On this basis, I accept his evidence that accused no. 2 kicked open the door to the house of the deceased, that he entered the house, murdered both the deceased and stole the television set, the various speakers and the DVD player.

[44] In the face of this overwhelming weight of evidence, and bearing in mind that accused no. 2 did not testify or call witnesses, his defence of an alibi cannot be reasonably possibly true and is rejected. I am of the view that the State has proved the guilt of accused no. 2 in respect of all three charges and that from the nature, location and seriousness of the wounds he inflicted on the deceased, he must have had a direct intention to kill them.

[45] I turn now to accused no. 1. On his own version, he is guilty of housebreaking with intent to rob and robbery with aggravating circumstances in that he associated with accused no. 2’s plan to commit this offence and took part in it by stealing the beers.

[46] Whether he is also guilty of the murder of the deceased depends on whether the requirements for liability based on the doctrine of common purpose have been established. In the circumstances of this case, where there was no prior agreement to kill and no causal connection between accused no. 1’s conduct and the killing of the deceased, the following must be present in order to impute the conduct of accused no. 2 to accused no. 1 on the basis of the doctrine of common purpose: that he was present; that he was aware of the assaults on the deceased; that he intended to make common cause with accused no. 2 in him perpetrating the assaults; that he manifested his sharing of a common purpose by performing an act of association; and that he had the requisite mens rea in the form of either a direct intention ‘or he must have foreseen that the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue’ See S v Mgedezi and others 1989 (1) SA 687 (A), 705I-706B.

[47] In S v Madlala 1969 (2) SA 637 (A), Holmes JA discussed the situation where more than one accused are involved in the commission of an offence and the circumstances in which criminal liability can be imputed to them. He held, at 640F-H:

QUOTE

[48] In this case, accused no. 1 was present at the scene of the murders of the deceased and he was aware of the assaults on the deceased. He knew that accused no. 2 was going to overcome their resistance by force, and that he was armed with a knife. He heard the screams of the female deceased. He made common cause with accused no. 2 in the perpetration of the assaults in that the forceful overcoming of resistance was part of their plan, and part of the motivation for the attack on the deceased was to prevent them from identifying him. He performed an act of association in that he was party to the plan to rob, entered the yard of the deceased and stood outside until he was beckoned in to carry off the beers. The only reasonable inference to draw from these facts is that accused no. 1 kept watch outside while accused no. 2 attacked the deceased, overcame their resistance and made it safe for him to enter. Finally, from the concessions made by accused no. 1 in cross-examination, he foresaw the possibility of the deceased being killed in the execution of the robbery but he remained associated with the execution of the plan reckless of those fatal consequences. He is thus, in my view, guilty of the murder of the deceased on the basis of the doctrine of common purpose. The form that his intention took was dolus eventualis.

[49] In this case, the horrific crimes of the accused were exposed quickly by the actions of various members of the community in which they lived. They were brought to book because those people took prompt and lawful action. They called the police, gave the police the necessary information and also rendered assistance when necessary. Members of the community gave evidence that led to the conviction of the accused. All of these people are to be commended for their moral courage in taking steps to ensure that justice was done. It is only when people are prepared to speak out – to stand up to be counted – that the scourge of criminality may be brought under control and criminals deterred from committing crimes. I would echo the words of Chaskalson P in S v Makwanyane and another [1995] ZACC 3; 1995 (3) SA 391 (CC), at paragraph 122 when he said that ‘[t]he greatest deterrent to crime is the likelihood that offenders will be apprehended, convicted and punished’.

[50] Finally, for the reasons that I have set out in this judgment, I find both accused guilty as charged.

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C. PLASKET

JUDGE OF THE HIGH COURT

APPEARANCES:

For the State: Mr Buks Coetzee of the office of the Director of Public Prosecutions, Grahamstown

For Accused No. 1: Mr Alan De Jager of the Justice Centre, Grahamstown

For Accused No.2: Mr Craig Renaud, instructed by the Legal Aid Board

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