S v Le Grange and Others

• Jurisdiction: South Africa
• Judge: Mpati P, Brand JA, Ponnan JA, Cachalia JA and Mhlantla AJA
• Judgment Date: 18 September 2008
• Citation: 2009 (2) SA 434 (SCA)
• Docket Number: 40/2008
• Hearing Date: 21 August 2008
• Counsel: BC Bredenkamp SC for the appellants. JJ Cloete for the State.
• Court: Supreme Court of Appeal

Ponnan JA:

G [1] The first appellant, his son - the third appellant, and the latter's friend, the second appellant, were indicted before the Kimberley High Court (per Kgomo JP), on one count of murder. The first appellant, who was convicted as charged, was sentenced to imprisonment for a term of 24 years. The remaining two appellants were convicted of being accessories H after the fact to murder and were sentenced to imprisonment for terms of eight and seven years respectively, a period of two years of which in each instance was conditionally suspended. The effective sentence imposed on the second and third appellants was thus imprisonment for terms of six and five years, respectively. Leave to appeal was granted by the trial court to the first appellant solely in respect of the I sentence imposed on him. This court, on petition to it, extended the scope of the appeal to encompass all of the convictions as well as the sentences imposed pursuant thereto in respect of all of the appellants.

[2] The deceased, 13-year-old Biron Phetlo, had spent the greater part of Sunday, 24 March 2004, at the Prieska Golf Course in the company J of his two friends, 14-year-old Curtis Maritz and 17-year-old Jaco Botha.

Ponnan JA

Two of the three had managed to secure work as caddies. At the end of A the day, they made their way on foot to the city centre. Once in the city centre, Jaco entered the Prieska Cafe to purchase refreshments, whilst the other two made their way to a sports shop in Stewart Street. Having arrived at the sports shop, which was closed for trade, Curtis and the deceased seated themselves on the front steps. At about that time the B defence witness Emmanuel Bosman, who was referred to in the evidence as Bolla, was on his way into what he described as the Chinese shop, when he observed the deceased and Curtis who both appeared to him to be normal. That was no longer the case when Bolla emerged from the shop.

[3] Whilst seated on the steps, it would appear that one of the youths C attempted to fish goods out of the sports store through a hole in the front glass door. They were observed however by the appellants who were at that stage out for a walk on the opposite side of the street. The appellants made their way across the street to the two boys. The interaction between the three appellants and the two boys on the stairs of the sports D shop lasted no more than two minutes, for that is how long Bolla's excursion into the shop lasted during which time he purchased a cold drink.

[4] According to Curtis, he knew the first appellant or 'the oupa', as he put it, as the husband of Annelise of Pep Store, and his son, the third E appellant. Curtis testified that the third appellant accused them of having previously stolen from a certain greengrocer. The deceased tried to flee but he was prevented from doing so by the first appellant who pinned him back with his walking stick or rather what came to be described in the evidence as a sword cane. The first appellant then succeeded in F unsheathing the blade of his sword cane and stabbed the deceased three times in quick succession. Curtis tried to get away to alert the police, but he was prevented from doing so by the second appellant. The three appellants then quickly departed from the scene. Once they had done so, Curtis summoned Jaco and reported to him that the deceased had been stabbed. When Curtis returned with Jaco, the deceased was lying some G 11 m from the stairs of the sports store. According to Jaco, his examination of the deceased revealed a chest wound from which blood was bubbling. Angered by what he saw, Jaco removed his T-shirt and discarded his sandals and thereafter set off in what Curtis had claimed was the direction taken by the deceased's assailants. When Jaco first H came upon the appellants, according to him, they were running. The third appellant asked him what he wanted and picked up a stone which was thrown at Jaco. In response, Jaco told them that they could run away now as he had seen them. Like Curtis, he also knew the first and third appellants. By the time Jaco returned to the deceased, the police were already in attendance and the deceased was thereafter removed to I the hospital.

[5] The appellants on their version had left the home of the first appellant at approximately 17:45 that evening, with the intention of visiting the latter's grandson who was reportedly ill. As the first appellant's daughter was not at home, the three appellants decided to J

Ponnan JA

A take a walk. En route, they came upon the deceased and Curtis who were endeavouring to steal from the sports shop. The appellants approached the youths, both of whom attempted to flee when confronted by the appellants. The second appellant physically restrained Curtis, whilst the first appellant utilised his walking stick with which he prodded the B deceased to prevent the latter from getting to his feet. When the appellants had departed the scene, the two boys were sitting injury-free on the steps as they had found them. En route, they observed a bare-chested youth who appeared to be pursuing them. The second appellant enquired what he wanted and the youth turned around and left. They then proceeded to the home of the in-laws of the first C appellant's daughter and, after having satisfied themselves that first appellant's grandson was well, the three then set off for the home of the first appellant.

[6] Later that evening, having been informed that the deceased had died D in hospital, Detective Francois Schutte interviewed Jaco and Curtis. On the strength of information furnished by them, he visited the home of the first appellant. After examining the dozen or so walking sticks in the appellant's home and not finding any that fitted the description furnished by Curtis, he arrested the first appellant. He then requested the second and third appellants to furnish him with statements which in due E course they did via their attorney.

[7] The chief findings of Dr George Isaacs, who performed the post- mortem examination on the body of the deceased, were a:

(1)

2 x 1 cm wound on the left front of the chest, penetrating the fifth F rib and ending in the heart;

(2)

1 x 1 cm wound on the right wrist; and

(3)

1,5 x 1 cm wound on the back of the right hand.

According to Dr Isaacs the first wound was 4 cm deep, whilst the other two, which he described as defensive wounds, were each 1 cm deep. He G concluded that the cause of death was cardiac tamponade due to a stab wound of the heart.

[8] From this brief summary it will be apparent that the issue of guilt was essentially one of credibility. In resolving it Kgomo JP believed the State witnesses and rejected the evidence of the appellants and their witnesses. H He accordingly convicted the first appellant of murder and the other two appellants of being accessories after the fact to murder.

[9] When the trial was well on its way, a substantive application for the Judge President's recusal was launched. The application was refused. I What triggered the application for recusal in this case, was the questioning of the first appellant by the learned Judge President at the end of his testimony. The allegation was that while the first appellant was testifying in his defence, the learned judge questioned him in a manner that, having regard to his judicial functions, was impermissible or excessive. Although the alleged irregular questioning of the first appellant J prompted the application, it did not stand alone.

Ponnan JA

[10] The first ground was that the Judge President interrupted or A curtailed the cross-examination by Mr Van Heerden (who represented all of the appellants) of State witnesses on important aspects. Reliance in this regard was placed on the following as illustrative of such conduct:

First, apropos the cross-examination of Curtis Maritz: B

Mnr Van Heerden: Was dit 'n koeëlronde gat of het die gat skerp punte gehad? - Hy was koeël Mister maar hy het so 'n bietjie skerp punte.

Hoe het Biron die draad daar ingesteek? - So ingesteek Mister toe trek hy die goeters af.

Hof: Mnr Van Heerden ek weet nie, hy sê hulle het dit gedoen en hulle C was stout en alles, so nou waar lei ons heen? Hulle wou steel, hulle het nie daarin geslaag nie, nou weet ons, maar ek weet nie waarheen lei die vrae nie. Ek het gewag, 'n vraag moet 'n doel hê, nou ek dink u moet nou 'n bietjie punt afkom. Ek wil nie hê elke keer moet ek sê waarom vra u die vraag nie maar as hy dit nog ontken het of as u nog vir hom gaan sê nee maar julle het dit nie D gedoen nie, of julle het dit so gedoen, dan moet dit nou uitkom asseblief.

Mnr Van Heerden: Soos die hof behaag. Het Biron sy hand seergemaak toe hy daar by die gat met die draad gekrap het? - Nee Mister.

So volgens u was Biron se hand nie beseer gewees nie? - Nee. E

Kan u vir my 'n afstand uitwys wat beskuldigde 1 gehardloop het? Nee daar waar u staan, kan u vir ons wys hy het sê nou maar gehardloop tot agter die hof, dit wat u gesien het, of hy het gehardloop tot hier by mnr Cloete? - Nee Mister hier is die pad nou, toe kom hulle so om, toe loer hy, daardie een met die geelkop, F toe hol hy hier om net so om die hoek, ek weet nie waarnatoe hy gaan in nie, toe hol hulle twee, toe 'charge' Jakes vir hulle reeds, ek weet nie tot waar toe 'charge' Jakes vir hulle nie.

Hof: Het u gesien tot waar hulle gehardloop het? - Nee Mister, ek het net gesien daar hol hulle, ek het nie nog gekyk waar hol hulle nie, G toe loop roep ek vir Jakes.

Hoekom kon u nie sien tot waar hulle gehardloop het nie? - Hulle is om die hoek Mister.

Hulle is om die hoek? - Ja.

Nou u is seker beskuldigde 1 het ook gehardloop? - Ja Mister. H

Want ek [this has to be Mr Van Heerden and not the court] wil dit aan u stel en as dit nodig is sal ek die getuienis roep, dat beskuldigde 1 kan as...