S v Fillieks

• Jurisdiction: South Africa
• Judge: Griesel J, Meer J and Samela J
• Judgment Date: 11 February 2014
• Docket Number: A330/13
• Court: Western Cape High Court, Cape Town
• Hearing Date: 27 January 2014
• Citation: 2014 JDR 0521 (WCC)

Samela J:

[1]

The appellant (as the erstwhile accused 2) and two co-accused appeared in the Worcester Regional Court on charges of murder, rape and indecent assault. They all pleaded not guilty. After evidence was led, they were all found guilty of murder, whereas accused no 3 was also convicted of indecent assault. The matter was thereupon referred to the High Court for sentencing in terms of s 52(1) of Act 105 of 1977, where

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Samela J

the convictions were confirmed by Hlophe JP. The appellant was sentenced to 18 years imprisonment. With the leave of the court a quo, he now appeals against his conviction.

Factual background

[2]

From the record of the regional court proceedings, the following facts are common cause: During the evening of the 24 February 2004, the appellant was a passenger in a motor vehicle driven by accused 1. In the motor vehicle there were also accused 3, one Jerome (accused 1's cousin) and three females. The female passengers were the deceased, Elaine Wilschut and Janine Arendse, both of whom became State witnesses.

[3]

The motor vehicle was driven to a deserted area on the outskirts of Worcester where accused 1 informed the others that they were looking for dagga, which had been hidden there on a previous occasion. The motor vehicle was stopped in the vicinity of a dam where they all got out. The appellant together with his two co-accused walked up the dam wall where they stood talking for approximately 5 to 10 minutes. They returned to the vehicle. Accused 3 called the deceased, put his arm around her neck and she willingly accompanied him in the direction of the dam. Approximately five minutes later, the appellant followed them. These three were out of sight, whilst the rest of the group waited at the motor vehicle.

[4]

After approximately 15 to 20 minutes, the group at the vehicle heard the deceased calling in distress: 'Eina, my kop!' She also called accused 1's name, 'Niel, Niel, Niel'. Accused 1 got out of the motor

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Samela J

vehicle and walked in the direction of the dam. After approximately 10 to 15 minutes he returned to the motor vehicle. His clothes were wet. A short while later, the appellant and accused 3 also returned to the motor vehicle. Their clothes were also wet ('sopnat'). The deceased did not return to the motor vehicle. The group thereupon left the scene and drove back to Worcester. When one of the females enquired as to the whereabouts of the deceased, accused 1 abruptly informed them: 'enigeen wat praat, gaan ook verdwyn'.

[5]

Some two weeks later the body of the deceased was discovered in the dam amongst the reeds after Elaine Wilschut had reported the matter to the police and pointed out the scene to them. There was a 7cm gaping wound on the left of the neck, posterior, with maggot infestation. Due to decomposition of the body, Dr Erasmus, the pathologist who conducted the post-mortem, was...