S v Daniëls en 'n Ander

• Jurisdiction: South Africa
• Judge: Jansen AR, Trengove AR, Botha AR, Van Winsen Wn AR en Nicholas Wn AR
• Judgment Date: 31 March 1983
• Hearing Date: 05 November 1982
• Court: Appellate Division

Nicholas Wn AR:

The Swartrivier road joins the national road between Grabouw and Caledon at a point several kilometres on the Caledon side of Botrivier. On the afternoon of Tuesday 17 March 1981 the body of a man was found lying in the Swartrivier E road some kilometres from the junction. The body was that of Jacobus William Jacobs, a young man of 23 years, who was employed by his father as a taxi driver and who had earlier that day been seen driving a taxi, a Valiant motor car, out of Grabouw.

F That night three men were arrested at Greyton. Two of them were brothers, Andries and Samuel Daniëls, who were respectively 32 and 28 years old. The third was Joseph Muller, aged 21 years.

On 10 April 1981 the three men appeared before the magistrate at Caledon: Andries Daniëls as accused No 1, Samuel Daniëls as accused No 2, and Joseph Muller as accused No 3. They were charged with intentionally killing Jacobus William Jacobs on 17 G March 1981 at or next to the Swartrivier road by firing three shots with a pistol into his body. Each of them pleaded not guilty. The magistrate explained the provisions of s 115 of the Criminal Procedure Act 51 of 1977, and told them that they were not obliged to make a statement. Accused Nos 1 and 2 said that H they did not wish to make a statement. Accused No 3 elected to make a statement, in which he described in some detail the movements and actions of the trio on 17 March 1981. The magistrate then questioned accused Nos 1 and 2 in terms of ss (2) of s 115. The relevant portion of the record will be set out later in this judgment.

In February 1982 the three men appeared before LATEGAN J and assessors in the Cape Provincial Division of the Supreme Court. They were charged on four counts: murder (count 1); robbery with aggrava-

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vating circumstances (count 2); and with unlawful possession of a 7.65 Beretta pistol and ammunition therefor in contravention of provisions of the Arms and Ammunition Act 75 of 1969 (counts 3 and 4). At the outset counsel for the State withdrew all A charges against accused No 3 and he was released. Accused Nos 1 and 2 pleaded not guilty on all counts.

Both the accused were convicted on all four counts as charged. In regard to the murder conviction, the Court found that there were no extenuating circumstances. The same sentences were B passed on each of them: on each of the charges of murder and robbery with aggravating circumstances sentence of death was imposed; and on the charges of unlawful possession of the pistol and ammunition the sentence was imprisonment for one year.

The two accused now appeal, with leave, against the convictions and sentences.

C There was no dispute as to the following facts.

On Monday 16 March 1981 the three men came to look for work in Grabouw because they were dissatisfied with the wages they had been receiving from their employer in Botrivier. There was work available in Grabouw but they could not find accommodation D there. And so they decided to return to Botrivier.

At about noon on the Tuesday accused No 2 and Joseph Muller were waiting at the road bridge at Grabouw. Accused No 1 arrived there in a taxi driven by the deceased. The taxi stopped and No 2 and Muller got in and sat at the back. They drove along the national road. When they reached the turn-off E to Botrivier, the deceased was told to drive on. At the junction with Swartrivier road, the deceased was instructed to turn off along it. He did so and drove on it for some kilometres until he was told to stop. This he did. Number 1 got out of the car and so did the deceased. Some words passed between them. Number 1 produced a pistol. The deceased started F to run away in the direction from which they had come. Number 1 pursued him, firing three shots in quick succession as he did so. He was followed by No 2. When the deceased was about 100 metres from the car he fell down on the gravel surface of the road. After an interval another, single shot was fired.

Number 1 and No 2 returned to the car. Number 1 had the pistol G in his possession. Muller got into the back, and No 1 turned the vehicle in the direction from which they had come. At Botrivier petrol was put into the car for which No 1 paid. They drove on towards Greyton, but about one kilometre from the village the car overturned and was abandoned. Muller went to H his home in the Coloured area of Greyton. Number 1 and 2 spent the evening in the bar of an hotel there. In the course of it, accused No 1 sold a wrist-watch, which admittedly came from the possession of the deceased, to one Adams.

On the afternoon of 17 March 1981 Detective Warrant Officer Uys of the South African Police at Hermanus examined the body of the deceased where it was lying on the Swartrivier road. The body was prone, although the head was turned so that the left ear, which was full of blood, was facing upwards. There were two wounds in the back.

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The right arm was folded in under the head, and the left arm was stretched slightly forward. Uys looked for money on the deceased but he found only a 10c piece which was lying under the body. Uys picked up two cartridge cases. One was two paces, the other 18 paces from where the body was lying.

A On 18 March 1981 Uys questioned accused Nos 1 and 2 in his office. He asked them about a pistol. Number 1 said that he had had a pistol but had thrown it into the river at Greyton. Uys asked them about the suitcases they had had with them. They said that they had hidden the suitcases in the bush at Greyton. B At Uys' request they pointed them out in the bush about 50 metres from the place where the Valiant motor car had overturned. Lying under one of the suitcases was a pistol (exh 2), which had one round of ammunition in the barrel and two rounds in the magazine.

On the post mortem examination, Dr H C Barnard, the district surgeon of Hermanus, found that the deceased was 1,8 metres in C height and had a mass of 200 lbs. He was obese. He was obese. He had sustained three gunshot wounds - two in the back which entered the chest puncturing the lung and one in the left ear. There was haemothorax, and serious damage to the right temporal lobe of the brain. In Dr Barnard's opinion the D immediate cause of death was definitely the brain damage. The wounds in the back were potentially fatal injuries - if death had not supervened as a result of the brain damage, then in the absence of medical treatment the deceased would have died from the other injuries within the half hour.

Two bullets recovered by Dr Barnard from the body of the deceased and the two cartridge cases found by Uys at the scene E were handed to Warrant Officer A H du Plessis, a ballistics expert. He found that the cartridge cases had been fired from the pistol, exh 2. The bullets were too badly damaged for a positive identification to be made, but their calibre and weight were the same as the bullets found in exh 2 and they had similar grooving to bullets fired through that pistol.

F In my view it is an inescapable inference from the proved facts that accused No 1 had, before they left Grabouw, conceived a plan to rob the taxi driver.

On the Monday and Tuesday No 1 was, on his own evidence, desperately short of money. On the Tuesday he sold his radio for R7 in order to get money to buy wine and food. After the G deceased had been killed, No 1 spent R5 on petrol at Botrivier, and he then had nothing over. That was why he sold the deceased's watch to Adams. It was plain therefore that he was not in a position to pay the R10 or R12 which he said the deceased wanted as the fare to Botrivier. It was also the H evidence of No 2 that none of the three had sufficient money to pay for the taxi, and they had no hope of getting any.

It follows that No 1 could have had no intention of paying the taxi driver. He might have tried to bilk the deceased at their destination, but they did not go into Botrivier. In stead they turned down a lonely road when they had no legitimate reason to do so. Then the deceased was ordered to stop. Number 1 produced the pistol, and chased after the deceased when the latter ran away, and shot him down.

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The strong probability is that No 2 and Muller became privy to the plan at its inception. A man who plans a robbery does not take innocent spectators with him on his unlawful enterprise. When the taxi proceeded past the turn off to Botrivier, and A when it turned along the Swartrivier road, neither accused No 2 nor Muller raised any objection or question. The inference is that they knew what was afoot. When they drove to Botrivier and Greyton after the killing there was no discussion about what had happened. When the violence erupted No 2 got out of the car B and ran after No 1 and he and No 1 came back to the car together.

It might be argued that the fact that No 2 and Muller stayed in the car while No 1 and the deceased were talking outside it is inconsistent with their having been privy to the plan. I do not agree. A loaded pistol is a potent persuader, and the two of them could well have had the confident expectation that the deceased would not offer any resistance.

C The only three witnesses who were at the scene at the time of the shooting were Muller and the two accused. There were a number of important differences between the various accounts they gave. It is accordingly necessary to consider the D credibility of each of the three witnesses.

When calling Muller as a witness, counsel for the State informed the Court that according to the information at his disposal there was no reason to suspect that Muller was in any way an accomplice in regard to any of the charges, and said that for this reason he did not ask the Court to give him the E normal warning under the Criminal Procedure Act.

The Court...