S v Crossberg

• Jurisdiction: South Africa
• Judge: Navsa JA, Brand JA, Ponnan JA, Mlambo JA and Malan AJA
• Judgment Date: 20 March 2008
• Citation: 2008 (2) SACR 317 (SCA)
• Docket Number: 440/07
• Hearing Date: 21 November 2007
• Counsel: JG Cilliers SC (with JP Nel) for the appellant. HS Ngobeni for the respondent.
• Court: Supreme Court of Appeal

Navsa JA:

[1] On 5 April 2007 the appellant, Mr Jewell Crossberg, a farmer and A game lodge owner, was convicted in the Pretoria High Court (on circuit at Polokwane) of the murder of Mr Jealous Dube (the deceased), a farm worker. The conviction followed on the trial court's conclusion that on 21 June 2004, at Vogelenzang farm (the farm) in Musina, Limpopo, the B appellant had, at close range, intentionally shot and killed the deceased. The appellant was also convicted on four counts of attempted murder, in that, he had during the same incident, fired shots in the direction of four of the deceased's co-workers.

[2] The appellant was sentenced to 20 years' imprisonment on the C murder charge and five years' imprisonment on each of the four counts of attempted murder. The trial court ordered that the sentences run concurrently. Thus, the appellant was sentenced to an effective term of 20 years' imprisonment.

[3] The appellant appeals against his convictions with the leave of this D court. In heads of argument submitted on his behalf the appellant's principal ground of appeal was premised on a fundamental irregularity, namely, the destruction or loss of 13 witness statements in the police docket, as a result of which, so it was submitted, his right to a fair trial in terms of s 35(3) of the Constitution had been infringed. He contended that he had been deprived of the opportunity to make a full answer and E defence - that his right to adduce and challenge evidence fully had been fatally impaired. [1] This is an aspect to which I will return later in this judgment.

[4] The appellant contended further that, aside from this fundamental F irregularity, the convictions were in any event liable to be set aside on the basis that the State had, on each of the counts, failed to prove his guilt beyond a reasonable doubt. It is perhaps necessary at the outset to dispel the fundamental misconception that the appellant's defence was that he had mistaken the deceased for a baboon. The true nature of his defence, the evidence adduced by the appellant and the State and the legal issues G are dealt with hereafter.

Concession on behalf of appellant

[5] The appellant repeatedly and consistently admitted having fired two shots in the vicinity of where the deceased and his co-workers were present, stating that he had been unaware of their presence at the H relevant time. When the appellant first notified the police telephonically about the deceased's death, he immediately informed them of this fact. Captain Johan Boshoff, a policeman who testified in support of the

Navsa JA

A appellant's case, stated that, when he arrived at the scene on the day of the shooting, the appellant had handed over his revolver, confirmed that he had discharged two shots in the vicinity and informed him that someone had died. It appears that this version was repeated in a written 'warning' statement the appellant supplied to the police.Navsa JA

B [6] In amplification of his plea of not guilty to all the charges, the appellant admitted, yet again, that he had fired the two shots. He denied, however, having directed those shots at any person.

[7] The appellant testified that on the fateful day, whilst driving his motor vehicle on the farm and seated behind the steering wheel, he had C blindly (blindelings) fired two shots into the bush in an attempt to scare off baboons that had crossed his path. According to the appellant, the baboons were a nuisance and repeatedly caused damage to structures at the game lodge on the farm. He had fired the two shots shortly after sunrise whilst travelling eastwards and the sun had impaired his view.

D [8] From the outset the appellant did not contest that one of the shots fired by him had struck and killed the deceased. The appellant's revolver is a .38 calibre Smith & Wesson, which, according to an expert witness, Mr Lucas Visser, has an effective range of up to one kilometre. The shots admittedly fired by the appellant were discharged at a time when hunters and their guides were active on the farm. Furthermore, the shots were E fired whilst he was approximately 300 - 400 m away from a homestead and a workers' compound.

[9] The night before the shooting the appellant had warned 12 farm workers entrusted to him (to whom I shall refer for want of a better F expression as 'guest workers'), not to walk around on the farm unaccompanied, because hunters were in the vicinity and they (the workers) would be at risk of their lives. As will become clear later in this judgment, the appellant ought to have been aware of the presence on the farm of some of the workers who were not in his immediate presence at the time he fired the shots.

G [10] Significantly, counsel for the appellant informed us that before the commencement of the trial the appellant had unsuccessfully attempted to agree with the State to plead guilty to culpable homicide.

[11] Considering the cumulative effect of what is set out in the preceding paragraphs, counsel for the appellant conceded before us that, on the H appellant's own version, maintained consistently before and during the trial and on appeal, and thus not tainted in any way by the irregularities referred to earlier, he fell to be convicted of culpable homicide.

[12] For a proper appreciation of the concession and of the issues to be I determined in the present appeal it is necessary, at this stage, to deal with the State's versions of events.

The State's version of events

[13] As best as can be discerned from the evidence adduced by three eyewitnesses, discounting contradictions, the essence of the J State's version, is set out in the paragraphs that follow. The three witnesses, all

Navsa JA

farm workers who are Zimbabwean citizens, were Messrs Happias A Mpofa, Elia Ngulube and Kenneth Molambo.

[14] On Saturday 19 June 2004, their employer, Mr Titling, transported them to the farm because he managed an experimental State farm that could not be left unsupervised and because his attendance was required elsewhere for two weeks. They were taken to the farm to be employed by B the appellant, as guest workers, whilst Mr Titling was away. They were to be employed to unearth stones or tree stumps. The three witnesses were part of a total of 12 workers brought to the appellant's farm by Mr Titling.

[15] As indicated above, the appellant admitted that on Sunday C 20 June 2004 the 12 workers were warned by him not to move around unaccompanied on the farm because of the risks attendant upon hunting activities. According to the version proffered by two State witnesses the appellant threatened to shoot them should he find them walking around unaccompanied. Mr Ngulube went somewhat further. What the appellant threatened to do, he said, was to shoot them if they worked badly. D Moreover, Mr Ngulube testified, this threat had been issued in the most blatant and offensive racist terms - involving the use of what is euphemistically referred to as 'the k-word'. The warning was admitted by the appellant. The threats were denied - including the use of the racial epithet.

[16] On Monday 21 June 2004, at approximately 7h00, the appellant's E driver, who was referred to by witnesses only as Never, arrived in a motor vehicle at the workers' compound on the farm and instructed two of the guest workers, referred to only as Target and Mandla, to accompany him to a site where stones were to be unearthed. F

[17] Shortly after Never's departure the appellant arrived at the compound in his Land Cruiser motor vehicle. It was described as a Landcruiser 4x4 vehicle with a cab and an open back on which goods or people could be transported. Having ascertained that Never had already departed, the appellant instructed the remaining guest workers to board G the vehicle and sit in the back. Messrs Mpofa and Ngulube were two of five workers [2] who sat in the back. The remaining five workers, who were still in the process of gathering tools and wheelbarrows, were left behind. It does not appear that they were left behind deliberately, but rather that the appellant departed hastily, before everyone was on board. H

[18] The appellant drove a short distance before they encountered Never, whose vehicle had run out of petrol. The appellant was angry and ordered Never to leave the farm, together with his family and possessions. The appellant then drove to where the stones were supposed to have been unearthed. The appellant asked why there were no stones. The workers told him that they had been unable to find any. It seems I

Navsa JA

A that the workers had no experience in this regard and were more accustomed to unearthing tree stumps.

[19] The appellant turned his vehicle around and drove back in the direction of the compound. On the way there they drove past the spot where Never's vehicle had stalled. The appellant instructed Never to B board the vehicle. Never obeyed the instruction and they drove back towards the compound. The three State witnesses testified that along the way they encountered the five workers [3] who had been left behind, walking along the farm road with their tools and wheelbarrows. Upon the vehicle's approach, because of the narrowness of the road, the five C workers split into two groups; three went to the right and two to the left. According to Mr Molambo he was one of those on the right. Immediately before the workers split into two groups, they were approximately seven metres away from the vehicle.

D [20] The appellant brought the vehicle to a halt, pulled out his revolver, extended his arm through the open window and discharged at least five shots in the direction of the three workers on the right-hand side. They ran off into the bush.

[21] The two persons on the left-hand side were the deceased and a E worker referred to as Onisimo. The two of...