S v Cloete

• Jurisdiction: South Africa
• Judge: E M Grosskopf JA
• Judgment Date: 17 March 1994
• Citation: 1994 (1) SACR 420 (A)
• Hearing Date: 15 February 1994
• Counsel: S J Redpath for the appellant at the request of the Court L S Moffit for the State
• Court: Appellate Division

E M Grosskopf JA:

The appellant, together with one Jansen ('the first accused'), was charged with murder and attempted robbery in the South-Eastern Cape Local Division sitting at Port Alfred. After a trial before Sutej J and assessors they were found guilty as charged by a E majority of the Court. One assessor dissented, holding that the two accused should, on the murder charge, have been convicted only as accessories after the fact. The appellant was sentenced to 13 years' imprisonment on the murder charge and four years' imprisonment on the charge of attempted robbery. The two sentences were ordered to run F concurrently. With the leave of the trial Judge the appellant now appeals against his conviction on the murder count.

The State evidence was briefly as follows. Constable Baatjies testified that on 6 December 1987 he was taken by an informant from the old Seaview road in Port Elizabeth to a point where he found the body of the deceased lying in the bushes. To reach this point he had to walk along a footpath G through the bushes leading to some small-holdings where the deceased had been living. He and his informant followed this path for about 100 metres. There he saw signs of a struggle on the ground and in the vegetation. From this point Baatjies and the informant left the footpath and had to traverse rough terrain for about another 100 metres before reaching the H spot where the corpse was. There were signs that something had been dragged through the bushes along this stretch. The corpse of the deceased was lying on its stomach. The lower part of the body was naked. The deceased's hands and feet were bound with strips of blue material. A piece of the same material was tied tightly around the deceased's mouth. This I blue material was clearly obtained from the deceased's overall, which he had been wearing on the day of his death. Baatjies had found further pieces of the overall while he was walking towards the spot where the body was found. Baatjies expressed the view that one person would not on his own have been able to drag the deceased from the footpath to the point where the corpse was found.

J An autopsy was performed by Dr I Lang, the Senior District Surgeon

E M Grosskopf JA

A of Port Elizabeth. His main findings were that there had been bleeding into the muscles of the neck and into the muscles of the pharynx, and that the deceased had sustained a fracture of the right horn of the hyoid bone. He concluded that death had been caused by the application of a constricting force to the neck. There was, however, he considered, also a B slight possibility that the cause of death was suffocation caused by the cloth tied around the deceased's mouth. Dr Lang also found a number of linear abrasions which were consistent with the deceased having been dragged along the ground before his death.

Gladys Ngabauena testified that on Friday, 4 December 1987, in the C morning, she saw the deceased and several other persons, including the appellant, drinking near her home. They left at about 13:00. The appellant and the deceased returned later and drank some more. At about 15:00 they left once again. At about 18:00 she visited a local shop, where she again saw the appellant and the deceased, this time accompanied by the first D accused. They were walking in the direction of the deceased's home.

This concluded the State evidence against the appellant. Further evidential material was found, however, in the appellant's explanation of his plea of not guilty in terms of s 115 of the Criminal Procedure Act 51 of 1977 ('the Act'), and in evidence given by the first accused. The E statement in terms of s 115 reads as follows:

'1.

Ek is 'n 33 jarige kleurlingman en beskuldigde nr 2 in bogenoemde saak.

2.

Op 4 Desember 1987 om ongeveer 8:00 is ek na 'n drinkplek (shebeen) in Seaview, in die distrik Port Elizabeth. Daar het ek F die oorledene ene Yali ontmoet. Ons het toe saam sit en drink. Ons het sherry en bier gemeng, gedrink. Ongeveer tussen 15:00 en 16:00 het ek gesê ek gaan loop en oorledene het gesê hy wil saam loop. Ons was albei dronk en het geslinger.

3.

Ons het saam gestap tot by 'n winkel, ongeveer 3 km vanaf die G laasgenoemde drinkplek. Ek en die oorledene het weer 'n paar kartonne bier saam gedrink. Daarna het beskuldigde 1 by ons aangesluit en saam met ons geloop. Beskuldigde 1 het nie by die winkel saam met ons gedrink nie. Hy was nugter.

4.

Soos ons aangestap het, het beskuldigde 1 my op 'n stadium H teruggeroep. Hy sê toe vir my 'n Bantoeman het gesê dat oorledene baie geld het en dat hy (beskuldigde 1) hom moet beroof. Beskuldigde 1 gryp toe die oorledene en hy trek hom die bosse in. Beskuldigde 1 het die oorledene toe begin wurg totdat, soos dit vir my gelyk het, die oorledene flou was. Beskuldigde 1 haal toe 'n Okapi-mes uit en beveel my om die oorledene se oorpak uit te I trek. Hy sê as ek dit nie doen nie, gaan hy my steek. Ek was dronk en bang. Ek kon, as gevolg van my toestand, nie die oorledene se oorpak uittrek nie. Beskuldigde 1 sny toe die bene van die oorpak af. Beskuldigde 1 beveel my toe om die oorledene se bene vas te hou. Terwyl ek dit uit vrees vir beskuldigde 1 gedoen het, het beskuldigde 1 eers die oorledene se bene en daarna sy arms met J stukke van die oorpak vasgebind. Beskuldigde 1 soek

E M Grosskopf JA

A toe die oorledene deur. Ek het nie gesien of hy geld by die oorledene gekry het nie. Beskuldigde 1 het oorledene toe gewurg en hom daarna in die bosse ingesleep. Beskuldigde 1 kom toe terug en sê as ek praat sal hy my keel af sny.

5.

Beskuldigde 1 het tydens die voorval wreed gelyk en ek het geglo B dat hy my sou steek as ek nie gedoen het wat hy my beveel het om te doen nie.'

The first accused's evidence was briefly to the following effect. On the C afternoon of Friday, 4 December 1987 he visited the shop to which Miss Ngabauena referred in her evidence. There he found various people, including the appellant, the deceased and Miss Ngabauena. Miss Nga-bauena told the appellant that the deceased had a lot of money, and that the appellant and the first accused should rob him. The appellant conveyed this suggestion to the first accused. The two of them therefore accompanied the deceased on his way home. Some distance along the footpath D they overpowered him, went through his pockets, dragged him into the bushes and tied him up. It is not necessary to consider what exact acts were, according to the first accused, performed by each of the assailants, since his evidence on these matters was contradictory and unreliable. For present purposes it suffices to say that the burden of his version was that there was a common purpose to rob the deceased and that both parties E willingly cooperated in performing the acts which led to the death of the deceased.

The appellant closed his case without giving evidence in his own defence or calling any witness.

The Court a quo accepted the evidence of Baatjies, Miss Ngabauena and Dr F Lang - indeed, the evidence of Dr Lang was undisputed. The first accused, the Court said, 'het 'n baie treurige indruk gelaat op die Hof as 'n getuie'. Later, when considering the force of the case against the appellant, the Court qualified its rejection of the first accused's evidence as follows: '. . . falsum in uno beteken nie falsum in omnibus nie en dit beteken ook nie dat 'n uiterste leuenaar kan miskien nie ook 'n...