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IN THE HIGH COURT OF SOUTH AFRICA

EASTERN CAPE DIVISION, GRAHAMSTOWN

Case no. CC 68/2018

Dates heard: 22-23/10/18; 29-30/10/18

Date delivered: 1/11/18

Not reportable

In the matter between:

THE STATE

and

SIPHAMANDLA PETSE                                                                                      Accused 1

BULELANI BAFO ZOZI                                                                                       Accused 2

 

JUDGMENT

 

Plasket J:

[1] The accused were each charged with the commission of five criminal offences. They are: housebreaking with intent to rob, which is count 1; robbery with aggravating circumstances, which is count 2; murder, which is count 3; the unlawful possession of a firearm, which is count 4; and the unlawful possession of ammunition, which is count 5.

[2] They both pleaded guilty to counts 1, 2, 4 and 5. In respect of count 3 – the murder charge – both pleaded not guilty to murder but guilty to assault with intent to do grievous bodily harm. The State did not accept the pleas of guilty with the result that pleas of not guilty were entered, but the admissions made in the plea explanations of the accused stand.

[3] The State’s case is that on 25 November 2017, the accused went to Fick’s Farm in the district of Alexandria where they broke into the house of the late Mr Riaan Scheepers, who I shall refer to as the deceased; robbed him of two cellphones, a cellphone charger, a motor vehicle, a firearm, ammunition and an airgun; assaulted him so severely that on 19 December 2017, he died as a result of complications arising from the blunt force trauma inflicted on him; and that after they left the scene of these offences they were in unlawful possession of the firearm and ammunition that they had stolen.

[4] Both accused admitted that on the night of 24 November 2017, they had been told by a friend, one Mr Vuyani Bhayeni, that his girlfriend who worked for the deceased had informed him that money was kept in a safe in the deceased’s farm house. An agreement was reached to go to the farm the next morning to steal the money. Mr Bhayeni drank too heavily that night with the result that he did not arrive at the appointed meeting place. The two accused set out for the farm on their own.

[5] When they arrived there, they entered a shed and waited there while observing the farm house. They saw the deceased leave the house and go to another part of the farm in his vehicle. They went to the house, which they entered. They began to search for the safe. While inside the house, they saw the deceased returning. When he entered the house, he was attacked, disarmed of his firearm and severely assaulted. Accused 2 took the firearm and followed an employee, Mr Lifi Breakfast, who had heard the gunshot and the deceased’s cries and was on his way to summon help. Accused 2 ordered Mr Breakfast into the house. Mr Breakfast said that the firearm was put to the back of his head in order to induce him to comply with accused 2’s instruction. Accused 2 denied that he pointed the firearm at Mr Breakfast.

[6] In the house, the deceased, in a severely injured state, was tied up, as was Mr Breakfast. The accused remained in the house vainly trying to force open the safe in an office and, according to Mr Breakfast, vainly trying to elicit from the deceased the whereabouts of the keys. The deceased was in no state to give the information as a result of the assault upon him.  After about an hour, they decided to leave. They left the deceased and Mr Breakfast trussed up in the house. They drove away in the deceased’s vehicle, taking with them the other items that they had stolen. They abandoned the vehicle near Kenton-on-Sea and hitch-hiked to their homes in Alexandria.

[7] In the meantime, Mr Breakfast had managed to free himself and had raised the alarm. The abandoned vehicle was found soon afterwards. The deceased was hospitalised and began to receive treatment for his injuries. Eventually, however, complications, in the form of pneumonia and sepsis, set in and he died.

[8] Captain Leon Els, the investigating officer, was able to track down accused 1 as a result of him having used the deceased’s cellphone that he had stolen. When his house was searched clothing with blood stains was found. The blood was later identified as the deceased’s blood. Blood stained clothing was also found at the house of accused 2 and linked to the deceased as well.

[9] I turn now to consider the pleas and the evidence of the accused. I am satisfied that both accused 1 and accused 2 have admitted all of the elements of the offences of robbery with aggravating circumstances, the unlawful possession of a firearm and the unlawful possession of ammunition.

[10] I shall now consider whether they have admitted their guilt in respect of housebreaking with intent to rob. Thereafter, I shall consider their pleas of guilty to assault with intent to do grievous bodily harm and whether the State has proved, instead, that they are guilty of murder.

[11] In his plea explanation, accused 1 admitted his guilt in respect of count 1 – housebreaking with intent to rob. In paragraphs 14 and 15 of the plea explanation, he had said that on the evening of 24 November 2017, Mr Bhayeni had suggested that they should all go to Fick’s Farm to commit robbery and that ‘[w]e all agreed that we should all go to the farm the following morning’.

[12] Despite this, when he testified, he said that his intention in breaking into the house was to steal, rather than to commit robbery. It was, he said, only when he and accused 2 could not find the keys to the safes that they decided to wait for the deceased to come back to his house, to assault him in order to subdue him and to force him to tell them where the keys to the safes were. In other words, his evidence appeared to be that the intention to rob was only formed when the accused had been in the house for some time.

[13] Accused 1’s attempt to back-track from his admission is, in my view, ill-conceived and ineffectual. He admitted in his plea explanation that he, accused 2 and Mr Bhayeni had planned to commit a robbery. No explanation, whether good, bad or indifferent was given by accused 1 for the change to his version.

[14] Furthermore, a number of factors point to it being overwhelmingly probable that accused 1’s intention, when he broke into the house, was to rob. First, he and accused 2 went to the farm in broad daylight on a Saturday morning when the deceased and his employees would be on the farm working. They thus foresaw the possibility of resistance and the need to overcome that resistance with force.

[15] Secondly, on accused 1’s version, accused 2 took with him a weapon in the form of a hammer (which was later used to assault the deceased). His explanation – that the hammer was a tool to break open the safes in anticipation that they would be made of glass – can safely be discarded as fanciful and false. The fact that the hammer was taken with them is indicative of foresight of the possibility of violence having to be used in order to succeed in stealing the money.

[16] Thirdly, accused 1 conceded in cross-examination that they were going to break into the house whether the deceased was there or not. Fourthly, he also conceded that even though they saw the deceased leave the house, he foresaw that there might have been someone else in the house, and that that person would have to be subdued in order for them to steal the money. Finally, not being able to open the safes with the tools at hand, they would have needed someone – probably the deceased – to tell them where the keys were and that would, of necessity, have involved the threat of infliction of physical harm at the very least.

[17] These factors point overwhelmingly to accused 1 either planning to find someone in the house or waiting for the deceased to return and then to take him by surprise in order to rob him of the money. I am consequently satisfied that the State has proved beyond reasonable doubt that accused 1 committed the offence of housebreaking with intent to rob.

[18] Accused 2 pleaded guilty unequivocally to housebreaking with the intent to rob. In his plea explanation he said that it had been suggested and agreed on 24 November 2017 that the accused and Mr Bhayeni would rob the deceased of his money on the following day. He confirmed this in his evidence. Indeed, he conceded that they needed someone to tell them where to find the keys to the safes and that they were going to use violence to persuade that person – ultimately the deceased – to furnish them with the information. I am satisfied that, apart from the factors that I have listed that established this intention in relation to accused 1, and which apply equally to accused 2, his admissions and evidence amount to a plea of guilty in respect of housebreaking with intent to rob.

[19] In respect of count 3, accused 1 pleaded guilty to assault with intent to do grievous bodily harm, rather than to murder. The basis of his plea was this:

‘In count 3, I only plead guilty to Assault with intent to do grievous bodily harm on the basis of common purpose, in that on the 25^th of November 2017 at Fick’s farm, Alexandria, I associated myself with the actions of Accused no 2, when he assaulted RIAAN SCHEEPERS with a steel bar. I therefore admit that I unlawfully and intentionally assaulted RIAAN SCHEEPERS with intent to cause him grievous bodily harm.’

[20] In his evidence, he said that accused 2 suggested waiting for the deceased to return to the house as they could not gain access to the safes without his assistance. The plan was to assault him as he entered the house. Accused 1 said that he agreed to this plan. He hid behind the front door when he and accused 2 saw the deceased returning to his house. As the deceased entered the house, accused 1 attacked him, they fell to the floor as they wrestled with each other, the deceased managed to draw his firearm and discharge a shot and accused 2 then struck the deceased twice on the head with an iron bar, rendering him unconscious.

[21] While this version does not accord with the objective evidence that I shall consider presently, it serves as an admission that, at the very least, accused 1 not only formed a common purpose with accused 2 to assault the deceased, but that he participated in the assault. Indeed, he later conceded that, in addition, he had kicked the deceased in the head twice, after he had been severely assaulted and was lying immobile on the floor in a pool of blood.

[22] Accused 2 also pleaded guilty to assault with intent to commit grievous bodily harm. His plea explanation reads as follows:

‘In count 3, I only plead guilty to assault with intent to commit grievous bodily harm on the basis of common purpose, in that on the date and place mentioned in count 1, I associated myself with the actions of accused 1, namely Siphamandla Petse, when he assaulted RIAAN SCHEEPERS with an object similar to a hammer. I therefore admit that I unlawfully and intentionally assaulted RIAAN SCHEEPERS with intent to cause him serious bodily harm.’

[23] He stated in his evidence that when they saw the deceased coming back to the house, accused 1 hid behind the front door while he hid in the nearby office. Accused 1 attacked the deceased as he entered and assaulted him with an object that he believed to be a hammer. The attack left the deceased unconscious and bleeding from the head. According to accused 2, he never assaulted the deceased at all. When accused 1 had disarmed the deceased he gave the deceased’s firearm to him and told him to bring Mr Breakfast into the house. Accused 2 complied with this instruction. When he returned, the two of them continued in their attempts to force open the safes before eventually giving up and leaving.

[24] Mr Johannes Scheepers, the brother of the deceased, testified that when he heard of the attack on his brother he had gone to the Port Alfred Hospital where his brother was being treated. He was unconscious. He took a series of photographs of his brother which show in shocking and graphic detail the severity of the assault to which he had been subjected. Mr Scheepers said that he counted 16 incised wounds on his brother’s head. In addition, his top lip was injured, his eyes were swollen and his front teeth were broken, leaving only stumps.

[25] Dr Celeste Herbst, a forensic pathologist employed by the Eastern Cape Department of Health, performed the post-mortem examination of the deceased after he died on 19 December 2017. Her observations of the external appearance of the body of the deceased were recorded in her affidavit and confirmed in her oral evidence as including: partially healed abrasions above the upper lip; three front teeth had been knocked out; a linear healed wound on the left eyebrow measuring 40 mm in length; slight blue-purple bruising around the right eye; healing abrasions at the top of the left ear and behind the left ear; sutured surgical wounds on the right front of the head; a U-shaped healed wound on the left front of the head measuring 40 mm in length, with a thick linear healing wound covered in thick dry blood below this, also measuring 40 mm in length; two partially healed half-moon shaped wounds on the back left of the skull, measuring 40 mm in length; a U-shaped wound in the same vicinity also measuring 40 mm in length; and a thick linear healing wound, covered by dry blood, over the back of the skull, measuring 60 mm by 15 mm.

[26] Dr Herbst’s examination of the deceased’s skull revealed deep bruising of the scalp, four depressed fractures and fracture lines running from them. The four fractures corresponded with the U-shaped or half-moon shaped injuries she had noted. It was her view that they had been caused by blows with a heavy blunt object with a roundish tip. In her experience, such wounds were usually caused by a hammer. The fracture lines that she observed were indicative of great force having been applied because they are caused by the ripple-effect of the force of the initial blows, radiating outward from the point of impact. They ran into the base of the skull.

[27] Dr Herbst described the death of the deceased as flowing directly from the blunt force trauma to the brain in the sense that, as a result of the severity of his injuries, it had been necessary to ventilate him to assist his breathing. Flowing from that, an environment had been created for pneumonia and infection to take hold. She concluded that the deceased had died as a result of ‘[c]omplications following blunt force trauma to the head’.

[28] It is clear from the evidence of Mr Scheepers and Dr Herbst that the attack on the deceased was extremely violent and a great deal of force was used. It is also apparent that more than one weapon was used. In addition to the hammer blows that caused the fractures of the skull, another blunt object was used to inflict the linear incisions that Mr Scheepers observed. Perhaps yet another type of blunt force was applied to the deceased’s upper lip, eyes and teeth. Furthermore, the deceased’s blood, in the form of splatters, rather than smears, was found on the clothes that both accused were wearing on the day of the attack.

[29] All of this objective evidence establishes an inference – and I am of the view that it is the only reasonable inference to draw – that both accused participated actively in a vicious, sustained and severe assault on the deceased with a hammer and one other object at least. Accused 1’s evidence that accused 2 struck the deceased twice with an iron bar is at odds with the objective evidence and cannot be true.

[30] Accused 2’s evidence that only accused 1 struck the deceased is similarly at odds with the objective evidence that I have outlined. Accused 2’s version is also improbable in the extreme. He took part, voluntarily, in the housebreaking and the initial search for the keys, but disavowed any involvement in the assault on the deceased, an attack designed to facilitate access to the keys (but for the excessive force applied to the deceased). Yet immediately after the deceased had been rendered unconscious through a vicious and sustained attack by accused 1 only, on his version, he continued where he had left off by forcing Mr Breakfast into the house at gun point, continuing to search the house, trying to force open the safes and taking the leading role in stealing the deceased’s vehicle. Given his admission that he had formed a common purpose with accused 1 to assault the deceased, it can be accepted that, at the very least, he never disassociated himself from the assault when he hid in the office.

[31] Neither version can explain the presence of the deceased’s blood on the clothes of both of the accused because both place themselves well away from the deceased at all relevant times. It is also clear from the places where the deceased’s blood can be seen in the photographs of the scene of the assault that the deceased was assaulted in at least three different places in the lounge of his house. The accuseds’ versions cannot account for this either.

[32] Both accused were extremely poor witnesses. They were evasive and their mendacity was patent as they attempted to shift the blame to each other. The evidence of Mr Scheepers and Dr Herbst, and the inferences that I have drawn from that evidence, as well as the evidence of Mr Breakfast, is to be preferred over the accuseds’ inadequate, obviously flawed and manufactured evidence.

[33] That leads me to the crux of the case, namely whether the State has proved beyond a reasonable doubt that the accused had the intention to kill the deceased. If so, they are guilty of murder; if not, they are guilty of assault with intent to do grievous bodily harm.

[34] In S v Sigwahla 1967 (4) SA 566 (A) at 570B-E, Holmes JA stated:

‘That, however, does not conclude the enquiry because the following propositions are well settled in this country:

1. The expression “intention to kill” does not, in law, necessarily require that the accused should have applied his will to compassing the death of the deceased. It is sufficient if the accused subjectively foresaw the possibility of his act causing death and was reckless of such result. This form of intention is known as dolus eventualis, as distinct from dolus directus.

2. The fact that objectively the accused ought reasonably have foreseen such possibility is not sufficient. The distinction must be observed between what actually went on in the mind of the accused and what would have gone on in the mind of a bonus paterfamilias in the position of the accused. In other words, the distinction between subjective foresight and objective foreseeability must not become blurred. The factum probandum is dolus, not culpa. These two different concepts never coincide.

3. Subjective foresight, like any other factual issue, may be proved by inference. To constitute proof beyond reasonable doubt the inference must be the only one which can reasonably be drawn. It cannot be so drawn if there is a reasonable possibility that subjectively the accused did not foresee, even if he ought reasonably to have done so, and even if he probably did do so.’

[35] Did the accused foresee that the assault on the deceased could possibly have led to his death? It is certainly clear from the facts that they should have, but as Holmes JA pointed out, that is not the test. In my view, the inference that they did indeed foresee death as a possible consequence of their actions is the only reasonable inference to draw from the fact that a hammer was used to assault the deceased repeatedly on the head, that another blunt object – probably a metal bar of some sort – was used to assault him on the head and that extreme force was used with these weapons. Given the nature of the weapons used, the target of their use, the sustained nature of the assault and the force applied, there exists no reasonable possibility that the accused did not foresee that their actions might lead to the death of the deceased. That being so, the State has, in relation to count 3 established beyond reasonable doubt that the accused had the necessary intention, in the form of dolus eventualis, to kill the deceased. They are thus both guilty of his murder.

[36] In conclusion, I find that the State has proved its case beyond reasonable doubt against both accused in relation to all five charges. My verdict is that both accused are guilty of the following:

(a) count 1 – housebreaking with intent to rob;

(b) count 2 – robbery with aggravating circumstances;

(c) count 3 – murder;

(d) count 4 – the unlawful possession of a firearm;

(e) count 5 – the unlawful possession of ammunition.

 

 

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C Plasket

Judge of the High Court

 

 

APPEARANCES

For the State: H Obermeyer

Director of Public Prosecutions, Grahamstown

For accused 1: V Mqeke

Mqeke Attorneys, Grahamstown

For accused 2: T Solani

Grahamstown Justice Centre

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