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Canterbury v S (A37/2010) [2011] ZAWCHC 133 (8 February 2011)

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JUDGMENT

MEER, J:

[1] On 21 August 2009 the three Appellants were convicted and thereafter sentenced on 18 September 2010 as follows:

First Appellant: Murder : 25 years; Unlicensed possession of a firearm: 3 years , Unlawful possession of ammunition :2 years; Defeating the ends of Justice: 3 years, sentences for the last three convictions to run concurrently. First Appellant was sentenced to an effective term of 28 years imprisonment.

Second Appellant: Murder: 15 years; Unlicensed possession of a firearm: 3 years; Unlawful possession of ammunition : 2 years, sentences for the the last two convictions to run concurrently. Second Appellant was sentenced to an effective term of 15 years imprisonment.

Third Appellant: Defeating the ends of Justice : 3 years.

[2] The charges and convictions emanated from the killing of Henry Stevens on the night of 28 September 2006 in Kuils River, Cape Town.

[3] With leave of the Court a quo Appellants appeal against their convictions only. The grounds of appeal in essence are that the court erred in finding that the state had proved its case beyond reasonable doubt.

[4] In respect of the First Appellant it is contended the Court misdirected itself in infer alia not treating the evidence of Chandre Pietersen, Jason Van der Ross, Ambrose Dudula and David Valentyn with the necessary caution as they were witnesses who testified in terms of Section 204 of Act 51 of 1977 (the Act). The Court erred also in not finding their evidence to be mutually destructive on material issues, and in not finding that they had committed perjury.

[5] In respect of the Second Appellant it is contended that the Court erred in finding that the evidence of Chandre Petersen and Jason Van der Ross was credible and could be relied upon insofar as it incriminated Second Appellant. It erred in rejecting Second Appellant's version as put to the witnesses that he had no foreknowledge of the shooting, It erred also in not treating the evidence of Petersen and Van der Ross with the necessary caution as required in terms of Section 204 of the Act, and in not finding their testimony to be contradictory on material issues.

[6] Similarly, in respect of the Third Appellant it is contended that the Court erred in accepting the evidence of Chandre Pietersen and Ambrose Dudula and in not attaching sufficient weight to the contradictions in their testimony especially with regard to the latter's identification of the Third Appellant.

[7] The Appellants, who were legally represented furnished plea explanations in terms of Section 115 of the Act and made certain admissions in terms of Section 220 thereof. First and Second Appellants admitted that the deceased was shot dead at the residence of First Appellant but denied that either of them had shot him or conspired to do so. The Third Appellant similarly denied any involvement in the murder or that he had buried the deceased.

|8] The Appellants were convicted primarily on the evidence of eight witnesses, four of whom were Section 204 witnesses, it is common cause that the deceased, Henry Stevens was shot dead at the house of First Appellant in Kuils River on the evening of Thursday 28 September 2006 and that First and Second Appellants and several others were there at the time. The eye witnesses to the shooting allege that the fatal shot was fired by one, Wimpie who himself died later that year. During the week which followed the fatal shooting the deceased was first buried on First Appellant's property in Kuils River, then exhumed, his body removed from the property and disposed of elsewhere. The State's case was that the deceased sold drugs for the First Appellant and arising out of a dispute pertaining thereto, the First Appellant planned and masterminded his killing. The Second Appellant, according to the State, was involved in the conspiracy of the killing and the Third Appellant had participated in the exhumation and disposal of the body. The facts and circumstances pertaining to these gory events appear from the evidence as set out hereunder.

Testimony of Chandre Petersen

[9] Chandre Petersen who was 18 at the time of the killing in September 2006, was the first Section 204 witness to testify and was given the requisite warning under the Section. Chandre was in the employ of the First Appellant and knew him well. Chandre was the brother in law of the deceased who was some years older than him. He had been acquainted with the Second and Third Appellants before the night of the shooting, having encountered them from time to time.

[10] From the evidence of Chandre the following account of the events emerged : Chandre was initially employed to do odd jobs for First Appellant predominantly, it would seem, at his house in Kuils River. He was later approached by the First Appellant to sell drugs for him and he agreed. The deceased, Henry Stevens and David Valentine, known also as Balla (hereafter referred to as Valentine), also sold drugs for First Appellant, with Chandre initially being in charge. This arrangement was later changed by First Appellant, and the Deceased was put in charge.

[11] Shortly before the shooting of the Deceased, Chandre had reported to First Appellant that there was a shortage of tik in the drug packets, and appeared to blame the Deceased for this. This, according to Chandre was the catalyst for what was to follow. An altercation had ensued on 27 September 2006 at First Appellant's house in Kuils River, during which at the instigation of First Appellant the deceased had beaten both Chandre and Valentine.

[12] On the following morning Thursday 28 September, 2006, the day of the killing, First Appellant fetched Chandre and brought him to work at his house. Chandre had worked all day and in the late afternoon, whilst driving with First Appellant, the latter informed Chandre that he had arranged for people to shoot Henry Stevens. Chandre went with First Appellant in the larter's vehicle to the home of Craig van der Merwe. First Appellant's friend. First Appellant asked Craig if he could borrow his bakkie as he needed to transport some people. Craig said he could not lend First Appellant the bakkie as it belonged to his employer, but he offered to do the transporting himself. First Appellant instructed Chandre to travel with Craig in his bakkie and they drove in convoy. First Appellant leading the way. Before they left. First appellant instructed Chandre to get his ( First Appellant's) gun from the boot of his car and keep it, as he, (First Appellant) had too many illegal goods on him. Chandre had done so, placing the loaded gun in his trousers.

[13] They stopped in Bishop Lavis where they met four men, namely. Second Appellant, known as Sniper, Wimpie, and two others described by Chandre as light skinned. It later emerged as common cause that these two were the Section 204 witness Jason Van der Ross, (also known as Boere) and Marco Cyster, (also known as Pitt). First Appellant summonsed Chandre who noted that First Appellant was speaking to the Deceased on his cell phone. First Appellant told Chandre he was going to fetch the deceased. He instructed Chandre to return to his house in Kuils River with Craig and the four men. Once there, Chandre should cover the windows of the kombi parked on the property and put on the compressor. Chandre then left for First Appellant's house with Craig, Wimpie, Second Appellant, Jason and Pitt, all of them travelling in Craig's bakkie. En route Chandre observed that Wimpie had a gun.

[14] When they reached First Appellant's house, they discovered that Deon, a mechanic also in the employ of First Appellant, was in the kombi with two women. Chandre asked them to leave as he suspected that Henry was going to be shot there. The two women left on seeing Wimpie's gun. Chandre and the rest of the group got into the kombi. covered the windows and switched on the compressor as instructed by First Appellant Wimpie had said he was going to shoot through a cushion but later changed his plan as he was afraid he would miss the target. Second Appellant had taken First Appellant's gun from Chandre and removed the ammunition.

[15] Whilst they were thus seated in the kombi the gate to the property opened and First Appellant drove in. The Deceased, Henry was in his vehicle. Wimpie said, "here comes the person" and prepared to shoot. The deceased approached the kombi and as he reached for the sliding door, Wimpie fired a shot and Henry fell. Wimpie and Second Appellant removed the body to a shed. Chandre threw oil over the blood alongside the kombi. Thereafter at First Appellant's behest Chandre opened the gate and saw Deon drive off as did First Appellant with Second Appellant and Wimpie. The other two men Jason and Pitt left just before, telling First Appellant they would meet him in the main road.

[16] First Appellant returned and instructed Chandre to switch off the driveway lights and the compressor. Chandre then left with First Appellant and they picked up the two men along the way. They went to a pub in Bishop Lavis, Little House on the Prairies where they met Wimpie and Second Appellant. The latter reported he had got people to dig a grave. They drove to Somerset West where Second Appellant had searched for these people but without success. There they met one, Monlas and First Appellant told him he had arranged for Henry to be shot. They returned to Kuils River with Montas, by which time it was sunrise.

[17] Back in Kuils River, so the evidence of Chandre continued, Monlas told Chandre to get a bucket of water. They then proceeded to remove the paved slabs in the back of the yard and started digging a grave. Montas said they should throw the body, which was still in the shed, in the grave. Chandre had refused, upon which First Appellant threatened to shoot him and throw him in the grave. Chandre and Montas had then thrown the body in the grave and First Appellant instructed two of his workers, Ambrose and Isaac who were working in the front of the property, to put cement in the hole. Later, First Appellant instructed Chandre to remove his clothes and shoes and gave him a change of clothing. First Appellant then went with Chandre and Montas to Bishop Lavis where the latter was dropped off. First Appellant threatened Chandre that should he talk, his family would be hurt.

[18) On the following day, First Appellant had once again fetched Chandre whereafter they had gone to fetched Third Appellant. Thereafter they borrowed a bakkie from First Appellant's uncle, fetched Ambrose and returned to First Appellant's house. The latter instructed them to dig a hole next to the slabs. He said he would get people to help, but returned with a person who said more help was needed. A foul smell emanated from the ground. First Appellant gave Chandre Stasoft and Jeyes Fluid to pour in the ground and left. At a stage Jason and Pitt arrived and tried to assist the group to get the body out but without success. The hole was closed up and First Appellant left with the two men. That night Chandre stayed at First Appellant's house, it would seem to guard the body.

[19] On the following day First Appellant took Chandre and Ambrose elsewhere to dig a grave, but their efforts were thwarted. Thereafter First Appellant brought Third Appellant to his house and with the latter's help the body was finally removed from the grave.

[20] The body, was wrapped in a blanket. Third Appellant smeared Stasoft on it whereafter Chandre and Third Appellant put it on the back of the bakkie, placing sacks covered in grass over it. First Appellant told Chandre to arrange the load so that it would appear as if they were transporting rubbish. First and Third Appellants together with Chandre drove with the body to Little House on the Prairies where Chandre and Third Appellant hastily removed the body. Chandre observed that Third Appellant at this stage had a gun which looked like the one the Deceased owned. Back at First Appellant's house on his instruction Chandre covered the grave, cleaning it first. Cement was once again thrown into the grave and Chandre was instructed to cover the area where the body had been.

[21] Later that night Chandre , Third Appellant and Ambrose returned to Little House on the Prairies and offloaded black bags. A person came out of the bush and spoke to Third Appellant. The Deceased's body was no longer there. Third Appellant told Chandre to tell First Appellant not to worry. Chandre and Ambrose returned to Kuils River and were ordered by First Appellant to clean the back of the bakkie, whereafter he took them home.

[22] First Appellant got Chandre to clean the interior of the kombi. A few days after the shooting the Deceased's sister arrived at First Appellant's house to enquire where her brother was. First Appellant had feigned ignorance as to his whereabouts, as did Chandre. Thereafter Chandre was arrested. After giving five false statements to the police Chandre had eventually come clean, agreed to be a section 204 witness and was taken into witness protection.

[23] Chandre's version withstood lengthy and vigorous cross examination. When asked why he had not run away but kept going back to First Appellant's house, he said because he feared he would be shot, he had wanted to run but had nowhere to go and feared he would be watched. When taken through his rive different statements to the police, he freely admitted that he had lied to the police, explaining he did not know who he could trust, lie mentioned also that he suspected one of the policmcn was in the pay of First Appellant. When referred to a statement by state witness Marco Cyster alias Pitt, to the effect that he, Chandre was the instigator of the murder, he responded that he knew that the three Accused, together with others had planned to put the blame on him. He moreover vehemently denied that he had instigated the murder because he was dissatisfied that the Deceased was put in charge of drug sales and had assaulted him the day before the killing. He denied also that the probabilities did not support his version that First Appellant would plan a murder at his house in the presence of the people there that night. He moreover refuted First Appellant's version that the latter was not involved in selling drugs and had lent him money to start a business. He denied also that on the evening of the murder there had been plans to go to a club called Stones and it was for that reason the group had gathered at First Appellant's house.

[24] Chandre further denied that Third Appellant was not involved as he had worked night shift. He denied also that he fabricated the evidence that Second Appellant had taken the gun from him to prevent the insinuation that he had a loaded gun with which he could shoot Henry.

The testimony of Craig Van der Merwe

[25] The evidence of Craig Van der Merwe corroborated that of Chandre concerning First Appellant's request to borrow Craig's bakkie. and arranging for Craig to transport the four people from Bishop Lavis to First Appellant's house at the latter's instruction. Craig too testified about the presence of the mechanic Deon there, about the arrival of First Appellant with the Deceased and the firing of a gun shot, the shock of which caused Craig to leave the scene. After the incident, he said he had not seen First Appellant again.

[26] Craig's testimony continued that at a later stage First Appellant, had phoned him and asked him to go to a lawyer and say he had made a statement under duress. Craig refused. Craig's version also withstood cross examination. In cross examination Craig denied that the night before the event he had also been asked for the loan of his bakkie and that he had driven Chandre and others to the Stellenbosch Arterial Road. He further denied that Second Appellant had been brought, not at the request of First Appellant, to the latter's house. He also denied that First Appellant had arrived before Craig.

Testimony of Nkosnathi Ambrose Dudula

[27] Ambrose Dudula (hereinafter Ambrose) testified as another Section 204 witness and was similarly warned that he could be charged with the obstruction of justice. Although the chronology of Ambrose's evidence was confusing, as was his recollection of exactly who precisely was where over the days after the shooting, his testimony in essence corroborated that of Chandre. From his testimony the following emerged:

[28] Ambrose started working as a gardener for First Appellant in September 2006 and he was paid R8 per hour. Chandre Pietersen was already working there and later three others were employed to do building work. Ambrose knew David Valentine and the Deceased. He corroborated Chandre's testimony concerning the assault of the latter and David Valentine on the day before the killing when they arrived at First Appellant's house in the company of the Deceased and First Appellant.

[29] He by and large corroborated the account Chandre gave of his (Ambrose's) role in the aftermath of the shooting. On the Friday after the shooting, Ambrose testified that he saw Chandre, Montas and three others digging a hole and that First Appellant had instructed him not to go there. First Appellant had moved in and out whilst the others were busy and at one stage had brought a five litre container of acid. First Appellant instructed him to mix concrete and throw it in the hole.

[30] Whilst giving Ambrose a lift home, First Appellant told him the Deceased had been shot on his property and enquired if Ambrose knew a place where the Deceased could be buried. Ambrose showed First Appellant a place near where he (Ambrose) lived. The following evening, being the Wednesday, First Appellant arrived with four men and Ambrose took them to the spot and First Appellant instructed them to dig. Their efforts were however thwarted by the arrival of the farm owner, which caused them to flee.

[31] Ambrose testified also about being at First Appellant's house when the latter arrived with the four men. Chandre was also present. First Appellant said they were to dig up the Deceased's body. Ambrose said he could not. First Appellant became cross and said if the body was not removed they would all be caught. In cross examination he said First Appellant had also threatened to kill him if he did not help and he had proceeded to help out of fear, but when he saw the Deceased's arm he refused to continue. First Appellant instructed him to get the jack from the vehicle in the driveway. A rope was tied around the arm of the deceased and they attempted to get it out with the jack but could not. They gave up trying to get the body out at that point and First Appellant instructed them all to leave. He gave Ambrose a lift home, telling him the body had to come out and that Ambrose should return the next day.

[32] On the next day Ambrose had worked at First Appellant's house. First Appellant left at about 5pm and returned with a bakkie. Chandre and Third Appellant were with him. There were branches, leaves and soil in plastic bags which First Appellant instructed Ambrose to put in the driveway. First Appellant then got Chandre and Third Appellant to load this on the bakkie and the bakkie drove off. First Appellant asked Ambrose to stay behind. Ambrose said he personally did not see the body, nor did he cover the body. He conceded this was different from the testimony of Chandre that he, Ambrose had covered the body. During cross examination he said First Appellant had told him the body was in the bakkie. First Appellant and Chandre, said Ambrose, returned about an hour later. First Appellant ordered Chandre and Ambrose to wash the bakkie. Ambrose saw drops of blood and dirt. First Appellant then took Ambrose home and paid him R350. Initially in evidence in chief, Ambrose, when asked if he could see Third Appellant in court, answered in the negative. However, during cross examination he changed his evidence insisting that the Third Appellant was the Third Accused in Court. He said that he had not recognized him initially because he was not wearing a cap, he had not seen him for a long time and his clothes were different. However when he saw him outside court with a cap on, he knew Third Appellant was Remo.

[33] Thereafter First Appellant told Ambrose that they had taken the body and burnt it. Ambrose was arrested at First Appellant's place. The police told him that Chandre had already informed them about all that had happened and was in witness protection. Ambrose too came clean. The police returned him to First Appellant's place. In response to an enquiry he told First Appellant he had told the police nothing. First Appellant had searched his body to check if the police had put anything on him. First Appellant instructed him to tell the police that Chandre "praat sulke dinge as Chandre getik is." When First Appellant took him home that day he gave him R150.

[34] During cross examination Ambrose admitted that he had lied in his statement to the police as he was scared, staling also First Appellant had threatened to kill him if he spoke. He said also thai when he had informed first Appellant that Chandre had told the police everything. First Appellant said he would shoot Chandre. When confronted with the fact that he had in his police statement said First Appellant informed him that the body had been burnt, but omitted this in his testimony, he denied he had been coached by the police.

[35] He conceded that there were some discrepancies between his evidence and Chandre's, He did not agree with Chandre's version that he had closed the hole. He also testified about an emotional conversation with First Appellant when the latter said he was scared for his child, if he was arrested he would be put away for 25 years, and he wanted the body out. Ambrose had informed First Appellant on that occasion that he did not want to be involved.

[36] He had identified the Third Appellant from photos shown to him by the police. He said of the photos he had been shown, the two that stayed in his mind were that of the Deceased and Third Appellant. When cross examined by Ms Nel for Second Appellant, initially he denied that Second Appellant had not been there when the body was dug up, but when told there were witnesses who would testify that Second Appellant had not been there at the time, he responded there were so many people there he was not sure if Second Appellant had been present.

[37] During cross examination on behalf of Third Appellant Ambrose said he could not remember the times and dates when people were present but all the people who were shown to him were there. He said he was certain Third Appellant was present when the body was taken away. He was however not certain about the other times he was there.

[38] He admitted he had been drinking on the day of the digging up but denied he had drunk so much that he could not recognise who was there.

Testimony of Jason Van der Ross

[39] Jason Van der Ross also testified as a Section 204 witness and was duly cautioned as such. His said he went by the nickname of Boere and that he had known Second Appellant, Sniper for two years. He also knew Third Appellant, Remo. Jason lived in Bishop Lavis and his circle of friends consisted of Sniper, Wimpie, Marco and Brent. They usually spent time at the corner of Green Street. First Appellant was also known to him. Jason testified that on the afternoon of the shooting, First Appellant approached them at their street comer and informed him. Marco Cyster/Pitt, Second Appellant and Wimpie that a man who sells drugs for him "has to be put right" because his money is always short. Wimpie said he would "put the person right", meaning he would shoot him. First Appellant told them his friend would fetch them later in a bakkie and bring them to his house, where he would arrive with the person who was to be shot.

[40] Corroborating the evidence of Chandre, Jason said later that evening they were picked up by a bakkie, driven by Craig, and Chandre was sealed in the front. They were taken to First Appellant's house where, as instructed by First Appellant, they sat in the kombi parked in the yard. On First Appellant's instructions the compressor was also put on. Wimpie pasted cardboard on the windscreen and then sat in the front passenger scat. The sliding door was open. Wimpie said that he would shoot the man when he approached the kombi. By this time it was dark.

[41] The Deceased arrived with First Appellant, walked to the kombi and when he put his head in through the sliding door Wimpie shot him. Jason, Second Appellant, Marco, Wimpie and Chandre dragged the body to a shed at the back and placed black bags over it. First Appellant then left with Wimpie and Marco and later gave Jason and Second Appellant a lift home. Unlike Chandre, Jason said they had not gone to Sir Lowry's Pass Village that night after the shooting to find a place to bury the body. He was unsure as to precisely when they had made this trip.

[42] On the following morning First Appellant brought Jason back to his house telling him the body was still there. He testified about seeing Chandre and Ambrose struggling to get the body out of the grave. These two did not want to dig. He, Jason said more manpower was required and he and First Appellant had gone and fetched Marco Cyster. When they still battled with the body they had decided to go in search of Sniper, Second Appellant. In cross examination he clarified that they had gone to Little House on the Prairies.

[43] When questioned about contradictions in his statements to the police. Jason said he had been confused. He denied First Appellant's version that they were meeting at the latter's house that night to go to Stones night club. He denied moreover that he was a hired hitman or that the events had any bearing on a gang war about perlemoen involving Wimpie in Gansbaai. Jason also denied Second Appellant's version that the latter was not with the group when first approached by First Appellant.

[44] During cross examination Jason said it was agreed to do the killing as a favour for First Appellant. The latter had only offered money, initially R500 and then R1000 to him and Marco to get the body out. He also said he became acquainted with First Appellant a week before the shooting, when he had come to see the group every day. He said he did not really think the Deceased would be killed. In explaining why he had got involved, given that he only knew First Appellant for a week at the time, he said he was "getik". During cross examination it emerged that Jason and Wimpie were members of the 28 gang.

[45] Whilst there were contradictions between the evidence of Jason and Chandre these cannot be characterised as material. For example Chandre said he had covered the kombi windows whilst Jason said Wimpie had. The two of them also differed as to precisely when the trip to Sir Lowry's Pass/ Somerset West had been made. Importantly Jason and Chandre corroborated each other on crucial aspects pertaining to the shooting and the digging up of the body.

Testimony of Jessica Rhode and Rene Koopman

[46] Jessica Rhode and Rene Koopman were the two women sitting in the kombi with Deon at First Appellant's house when the group arrived there prior to the shooting. Both women observed that one of the men had a gun. They had heard the shot. They too denied there were plans to go out that night.

Testimony of David Valentine

[47] David Valentine corroborated the evidence of Chandre concerning the arrangements for the sale of drugs for First Appellant and the complaint by Chandre about the shortage in the drug packets. His account of the assault by the Deceased on himself and Chandre, at the instigation of First Appellant accorded with that of Chandre. After the assault he had stayed at home for a few days as his body was sore. During this period First Appellant and Chandre fetched him to go to First Appellant's house. There he had helped Ambrose dig up slabs. During cross examination it was put to him that the Deceased had hit him and Chandre because of their internal problems which were unrelated to First Appellant. He did not agree.

Testimony of Dcslin Jonathan

[48] Deslin Jonathan, a friend of the Deceased said that on two occasions she had enquired from First Appellant where the deceased was, the first being on the day after the shooting. First Appellant had said that he had dropped the deceased off at a friend's place.

Testimony of First Appellant

[49] Of the three Appellant's only the First Appellant elected to testify. His testimony, in contrast to that of the state witnesses was as follows: Chandre began working for him in 2005 doing odd jobs. He knew Chandre used drugs. He also knew Brood, Jason Van der Ross (Boere), Second Appellant (Sniper), and Pitt. Similarly he was friendly with the Deceased, Henry' Stevens whose brother was married to Chandre's sister. Henry, Chandre and David Valentine sold drugs. He, First Appellant was not involved in drug sellng. In September 2006 First

Appellant had lent Chandre R5000 to start a business selling fruit and vegetables.

[50] On Tuesday 26 September 2006 Chandre phoned him in hysterics saying there were people who wanted to rob him, take his drugs and beat him up, even kill him. First Appellant said Chandre should look for Henry, the Deceased, it was not his problem. Later that evening he observed chandre, David Valentine and two others in a bakkie in Elsies River each of them armed, and pointing their guns at people who were running into their houses "and ducking". First Appellant walked back to his car as he did not want to be involved.

[51] However when Chandre phoned him at home later that night to say he was outside and First Appellant could even hear Chandre and others making a noise outside, he allowed Chandre, David Valentine and two others to come onto the property, albeit reluctantly. They went and sat in the kombi parked there. Chandre was drugged and very angry with Henry, the Deceased. He came up with a plan to kill Henry. He asked First Appellant to take them to Delfl on the Stellenbosch Arterial Road, drop them off fetch Henry from a house opposite, after which he would be shot. First Appellant thought the only way he could get this group of armed people out of his house was to play along. He drove with them to his friend Craig Van der Merwe who at First Appellant's request drove them all to Stcllnbosch Arterial Road. First Appellant went into a house where Henry was, whilst Craig and the others waited. He spoke to Henry for a few minutes, then returned and reported to the group that Henry was not there. After that First Appellant told Craig he could leave and First Appellant dropped the others off in Bishop Lavis.

[52] During cross examination about this incident First Appellant could not satisfactorily explain why he had let in four armed men into his house, given that he had not wanted anything to do with them earlier that evening. He was asked why he had not called the police instead. He said he had not gone to the police as he was not sufficiently scared. Nor could he explain why he needed to involve Craig, or why Craig without any explanation would agree to drive armed people at night. He said he did not know why Craig had not testified about this incident. He said it was his intention to explain all to Craig at a later stage. He could also not satisfactorily explain why, if on his version Chandre and Balla had a drug business, they needed to do odd jobs for him.

[53] First Appellant's account of Henry's assault on Chandre and David Valentine on Wednesday 27 September was as follows. That morning he dropped Chandre and Valentine at his house to do a casual job. He then fetched Henry and informed him about the previous night's plan to kill him. He took Henry to his house and asked him to confront Valentine and Chandre. First Appellant forced them to admit their plan to Henry and Henry beat them up. When cross examined about why it was necessary for him to bring Henry to his house to sort things out, his answer was that he needed Henry to teach them a lesson. Later that evening First Appellant discovered packets of tik in his gym. He phoned Chandre who admitted the drugs were his and asked him to remove them the next day. After the discovery he did not want to have anything more to do with Chandre.

[54] On Thursday 28 September, the day of the shooting, First Appellant reported that Chandre arrived at his house in the morning. First Appellant said he ordered him to take his things and leave.

However First Appellant observed that Chandre was still there at 2 pm. Ambrose and Deon, the mechanic were also there. Although Chandre said Deon would be taking him home later, Chandre continued to be there for the day and even asked First Appellant, apparently on Deon's instigation, to fetch Brendon as a trip to Stones Night Club was being arranged that evening. Chandre also asked First Appellant to invite Henry to Stones, surprisingly, given that Henry had assaulted Chandre the night before. First Appellant, surprisingly obliged.

[55] Even more surprisingly First Appellant said that he then took Chandre in his vehicle to Craig's house where he told the latter that Chandre and his friends were going to Stones, and asked Craig to transport them to his house from whence they would proceed to Stones. Craig agreed and they drove in convoy to Bishop Lavis where the group. Sniper, Wimpie, Jason Van der Ross and Pitt got into Craig's bakkie.

[56] First Appellant thereafter fetched Henry, the Deceased and brought him to his house in Kuils River. There Henry got out of the car and walked to the back of the property whilst First Appellant went to the front door. He heard a shot and saw Henry lying on the ground next to the kombi. According to First Appellant, Wimpie had shot him. Chandre, Jason, Pitt and Second Appellant jumped out of the kombi. Second Appellant and Chandre dragged the Deceased to the tool shed in the back and put black refuse bags over him. Wimpie told First Appellant that he should keep his mouth shut or he might kill his family.

[57] Next, Chandre told First Appellant to drive them to Sir Lowry's Pass where they would find a bakkie and return to remove the body. First Appellant obliged. On the way he picked up Second Appellant, Boere and Pitt. Wimpie directed him to Sir Lowry's Pass Village. They were unsuccessful in their mission and drove into a bush. First Appellant feared for his life and begged them not to shoot him, giving an assurance that he would not speak. He begged them to just remove the body from his house. Wimpie instructed him to drive to Bishop Lavis and drop them off, which he did. On his return home First Appellant discovered shovels in his boot, became anxious for his and his family's lives, thought of going to the police, but did not.

[58] First Appellant did not fare well during lengthy cross examination by Mr Van Wyk for the State about events on that fateful Thursday. To begin with he could not satisfactorily explain why he had allowed Chandre, about whose drugs possession he was so disapproving, and whom he supposedly wanted off his premises, to remain there all day. Nor could he satisfactorily explain why he would have agreed to go out with Chandre that night, and even arrange transport for his friends, given his resolve the previous night to have no more to do with Chandre. The best he could offer by way of explanation was that he had felt bad about Henry's assault on Chandre the previous day, and wanted to bury the hatchet. He could not explain why he needed Craig to provide extra transport when on his own version he did not know how many people needed lifts.

[59] Importantly he could not give a plausible explanation as to why he had to go in convoy with Craig to fetch the group in Bishop Lavis, This begs the question whether the reason for his going there was as per the version of Chandre and Jason van der Ross, namely to give instructions for the shooting. When it was brought to his attention that his version that Craig was invited to go to Stones and asked to transport people for that purpose, was not put to Craig, he blamed his counsel for the omission, saying he had informed him thereof. He could not explain why he had not gone to the Deceased's assistance after he was shot. Nor could he explain why, if it was Chandre's and Wimpie's plan to kill the Deceased, they had chosen to do so at his, first Appellant's house. When cross examined about why he had not gone to the police immediately after the shooting, but had instead driven with the perpetrators to Sir Lowry's Pass, he said Chandre and Wimpie were armed and he was scared for himself and his family. When pressed for an explanation as to what prevented him thereafter from going to the police, given that he was a person of means and could if needs be, have moved away to protect his family, he conceded that he had the financial means to move for his family's safety.

[60] The testimony of First Appellant about the aftermath of the shooting was as follows: On Friday 29 September Chandre and Montas arrived at his house. First Appellant asked Chandre to sort things out and left. On his return Ambrose who had been at work on the premises, told him Chandre and Montas had buried First Appellant's safe in the back yard. First Appellant then encountered Chandre who told him Henry was buried beneath the concrete but not deep and that he was waiting for help to remove the body. Later that afternoon First Appellant had become emotional and told Ambrose all that had happened. He asked Ambrose for a place to take the body to. Ambrose pointed out a place near the farm where he lived. Later First Appellant dropped Chandre, Montas and Ambrose nearby and the latter took them to this location. First Appellant himself waited at a police station nearby. He was phoned by Chandre and informed their efforts had been thwarted by the arrival of the police. During cross examination First Appellant curiously said he had not been concerned that Ambrose and the other workers on the property would find the body in the tool shed when they arrived for work on the morning after the shooting. He could not explain why, if he was not involved in the shooting, he had asked Ambrose to find a place for the body and had even driven the others to this location, especially as they had not even sought his help.

[61] On Saturday 30 September First Appellant said Chandre had arrived at his house and had spent the day there in a daze. First Appellant had left him there and gone to a braai at Craig Van der Merwe's house. There, he said he told Craig everything, a fact which had not been put to Craig when the latter testified. On his way home he fetched Ambrose but could not explain what for. Nor could he explain why he had simply allowed Chandre to remain at his house, dazed and confused all day, in his absence.

[62] First Appellant's testimony of events on Sunday 1 October 2006 was as follows: First appellant borrowed his uncle's bakkie and he and Chandre fetched Jason, Pitt and Ambrose. He took them home and ordered them to open the 'grave* as he did not believe that Henry was buried there. Ambrose was distressed and reported to First Appellant that he had seen an arm. Later that night all left except Chandre who said he would wait for Wimpie to come and help remove the body. First Appellant went to bed. On awaking the following morning he saw an empty hole. Chandre told him that he and Montas had removed the body during the night. First Appellant told Chandre to close the hole, leave his property and stay out of his life. Later rubble was offloaded. On the following Wednesday First Appellant received enquiries about the Deceased's whereabouts. He said he did not know where he was.

[63] During cross examination about the digging up of the body First Appellant could not explain why he had needed Ambrose there. He denied forcing Ambrose to dig up the body or indeed that he was the mastermind behind the shooting who had controlled the others. He also denied instructing Craig to tell the police he had made a statement under duress.

Assessment of the evidence in the Court a Quo

[64] The court a quo emphasised the necessity and importance of treating the evidence of the section 204 witnesses with extreme caution, especially in a case where the State relied heavily on their testimony. The Court found Chandre's explanation for his five contradictor)' statements, to be acceptable. The contradictory statements thus did not detract from his credibility. Chandre\s evidence was considered as being truthful, had withstood lengthy and rigorous cross examination, and was devoid of material contradictions. Chandre was accepted to have been under the control of First Appellant.The Court observed also and importantly that Chandre's evidence was corroborated in material respects not only by the Section 204 witnesses, Jason van der Ross, Ambrose Dudula and David Valentyn but also by that of Craig van der Merwe who was not a Section 204 witness. The Court pronounced the latter four also to be credible and reliable witnesses tabulating how each of them corroborated Chandre's version. There was high praise for the testimony of Craig van der Merwe. It was significant, the Court noted that it was not put to Craig that the reason he was requested to provide transport to the others that night was because they were all going to Stones. Jessica Rhode, Rene Koopman, Deselin Jonathan and Captain Christo Rossouw were similarly found to be credible witnesses.

[65] In contrast the following aspects of First Appellant's evidence were not found to be reasonably possibly true:

1. that he would have lent Chandre R5000, given the latter's addiction to drugs;

2. the account of the Stellenbosch Arterial incident which did not accord at all with the evidence of Craig van der Merwe. It was farfetched that First Appellant would have been involved in such an incident knowing that the persons were armed and especially as he had avoided them earlier that evening when on his version he had seen them pointing guns at the public.

First Appellant's explanation that the reason the group had gathered at his house on September 28, 2006 was because they were to be transported to Stones nightclub, a piece of information, which, as aforementioned was not put to Craig. It was not explained why the group had not been transported to Stones directly. It was also unlikely that the Court found. First Appellant would have invited the Deceased along, given that on First Appellant's version Chandre had threatened to kill the deceased;

[66] The Court concluded that First Appellant had arranged for the group to be in readiness at his house for the shooting of the Deceased on arrival there with him. It was also unlikely that if First Appellant wanted to extricate himself from Chandre that he would have sought him out continuously to bring him to his house to perform tasks and arrange to go to the nightclub with.

[67] The Court observed significantly that after the shooting First Appellant was more interested in Wimpie than in ascertaining the condition of the Deceased. That First Appellant did not report the incident to the police, was found to be indicative of his involvement in the shooting. The fact that he had sought help in removing the body also pointed to his involvement. His evidence that he was not certain the body was buried on his property did not accord with his enquiry with Ambrose about a place to bury it. The conduct of First Appellant and his going backward and forward to get people to help remove the body, did not accord, the Court found with someone uninvolved in the event.

[68] On account of the above First Appellant's version was found not to be reasonably possibly true. With regard to Second and Third Appellants the Court commented that the direct evidence against them required an explanation which was not forthcoming given their election not to testify. From the evidence it was clear that whilst Second Appellant did not fire the shot, he was present and associated himself with the execution of the shooting and the preparation therefor. In respect of Third Appellant the evidence of Chandre and Ambrose involved him in the steps to remove the body and make it disappear. In the absence of a credible version on the part of Second and Third Appellants, the testimony against them must stand.

On appeal

[69] I find myself unable on appeal to fault the Court a quo's assessment of the evidence, much of which was echoed in our consideration of the evidence earlier on. The principles applicable to the assessment of accomplice evidence were succinctly set out by Leon J in S v Van Vreden 1969 (2) SA 524 (N) at 531, as follows:

(1) "Caution in dealing with the evidence of an accomplice is imperative even when the requirements of sec. 257 have been satisfied.

(2) An accomplice is a person with a possible motive to tell lies about an innocent accused, for example to shield some other person or to obtain immunity for himself.

(3) Corroboration not implicating the accused but merely in regard to the details of the crime is no guarantee of the truthtulness of the accomplice, the very fact of him being an accomplice enables him to furnish the court with details of the crime which is apt to give the court, if unwary, the impression that he is in all respects a satisfactory witness.

(4) Accordingly, to satisfy the cautionary rule, if corroboration is sought it must be corroboration directly implicating the accused in the commission of the offence.

(5) Such corroboration may, however, be found in the evidence of another accomplice provided that the latter is a reliable witness.

(6) Where the corroboration of an accomplice is offered by another accomplice, the latter remains an accomplice and the court is not relieved of its duty to also examine his evidence with caution. He, like the other accomplice, has a possible motive to tell lies. He, like the other accomplice, because he is an accomplice is in a position to furnish the court with details of the crime which is apt to give the court, if unwary, the impression that he is a satisfactory witness in all respects.

(7) Where there is no such corroboration there must be some other assurance that the evidence of the accomplice is reliable.

(8) Thai assurance may be found, inter alia, where the accused is a lying witness or does not give evidence.

(9) In the absence of the aforementioned features it is competent for a court to convict on the evidence of an accomplice only where the court understands the peculiar danger inherent in accomplice evidence and appreciates that acceptance of the accomplice and rejection of the accused is only permissible where the merits of the accomplice and the demerits of the accused are beyond question.

(10) When it is said that the merits of an accomplice as a witness must be "beyond question" in order to be accepted as sufficient for a conviction, this does not mean that his evidence must be free from any defects."

[70] In the instant case, the corroborative testimony of the Section 204 witness implicated the Appellants. The reliability of such evidence is buttressed by the First Appellant's version not being reasonably possibly true in the light of all the evidence. The same applies in respect of the Second and Third Appellants in the absence of any evidence from them. The merits of the accomplice evidence and the demerits the Appellants' version can be said to be beyond question. There is accordingly in my view no basis to find that the Court erred in accepting the evidence of the section 204 witnesses, that such evidence was not treated with requisite caution or for a finding that their evidence contained material contradictions or was materially destructive.

[71] The contradictions between the testimony of the Section 204 witnesses cannot be characterized as material. For example as between the testimony of Chandre and Jason, the former said he had covered the kombi windows whilst Jason said Wimpie had. The two of them also differed as to precisely when the trip to Sir Lowry's Pass Village/Somerset West had been made. Importantly Jason and Chandre corroborated each other on the crucial aspects pertaining to the shooting and the digging up of the body.

[72] Whilst the version of Ambrose Dudula was not always easy in the telling, it indeed corroborated the testimony of Chandre in all material respects He admitted freely to being confused about who was where and precisely when, an aspect not unusual for a witness testifying some time after events which involved so many role players.

[73] The fact that Ambrose did not initially recognize Third Appellant in court does not detract from his earlier identification of him in the photo I D before the police. It must also be remembered that the so called dock identification happened some years after the event, that Third Appellant was not well known to Ambrose, whom from the evidence it would seem he had only met during the removal of the body, and a mistake in the circumstances is plausible. Too much store ought not in the circumstances to be placed on the initial mistake in the dock ID. Ambrose was resolute during cross examination that Third Appellant was there. This and the corroborative evidence of Chandre counts against the version of Third Appellant. In the absence of an alibi witness as to Third Appellant's whereabouts the probabilities favour the version that he participated in the removal of the body. The initial mistaken dock identification does not detract from this.

[74] I note that the discrepancies between Chandre's and Ambrose's evidence, namely as to whether the latter covered the body, or closed up the hole, are not material. Of crucial significance is their corroborative evidence about the digging up and disposal of the body and of First Appellant's role as person in command and of the role played by Third Appellant in disposing of the body.

[75] What was evident, is that Chandre was unwaveringly under the control of the First Appellant to the point of following the latter's every instruction. It was the First Appellant who planned and orchestrated the murder of the deceased, and such was the sway of the First Appellant over him that he went along, aided and abetted. The same can be said in respect of Ambrose's participation in the period immediately after the shooting.

[76] Nor can it be said that the Section 204 witnesses committed perjury at the trial. Those of them who had lied in statements to the police admitted freely to having done so and provided plausible explanations therefor. They did not seek to minimise their dastardly roles in the gruesome and ghoulish deeds. Their versions stood the test of lengthy, gruelling and relentless cross examination over many days and was checked over and over again. But for non material contradictions and non materia] discrepancies they did not waver. It was put several times to Chandre by his able cross examiners that he was trying to put the blame elsewhere in his capacity as a Section 204 witness to save his own skin, but he stood firm.

[77] I endorse the Court a quo's reasons for finding First Appellant's version not to be reasonably possibly true. I note moreover that it is improbable as per First Appellant's version that after deciding on the Wednesday evening that he wanted nothing more to do with Chandre, that he would arrange an outing to a night club the very next evening with him. It is further extremely improbable that First Appellant would want to go socialising with the very people he had experienced as dangerous the night before. It is also improbable that First appellant would have gone in convoy with Craig to fetch the group in Bishop Lavis on the evening of the shooting if his agenda was not to instruct them about the shooting. Improbable also, is First Appellant's version of Chandre as the dangerous, feared mastermind of the shooting, in the light of his tolerance of Chandre's constant presence in his house.

[78] The Court a quo correctly accepted the version of Jason Van der Ross and Chandre that Second Appellant and the group he was with were appraised of the plans to shoot the Deceased and were transported to First Appellant's house for that purpose. It correctly rejected First Appellant's version on this aspect. This being so and in the absence of any evidence to support Second Appellant's version that he was an innocent bystander, the probabilities cannot favour his version and a finding in that respect could not have been made. Second Appellant's association with the agreement on the killing, his moving with the group as a unit to where the Deceased would be killed, his association as part of the group with the setting of the scene and his immediate participation in the moving of the body and events later that night, bring him well within the ambit of common purpose to the murder.

[79] It is so that this was a surprisingly widely publicised and indiscreet killing in the planning, and execution, and on the First Appellant's property to boot. It is also so that the aftermath of the shooting was goulish, bizarre and even amateurish - the digging up, and recovering of the hole the struggle to bring out the body, the use of cement, jeyes fluid and stasoft, the eventual removal of the body with a jack and its final disappearance, presumed burnt. This however does not detract from the evidence as a whole when weighed up, its strengths and weaknesses, probabilities and improbabilities being weighed so heavily against the Appellants as to point to their guilt beyond reasonable doubt.

In light of all of the above I would accordingly dismiss the appeal against the convictions.

MEER, J.

I agree and it is so ordered.

ZONDI, J

I agree and it is so ordered.

BAARTMAN, J