IN THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

    
In the matter between: 
THE STATE 
and
BERNARD MUSSA SELESTIN

JUDGMENT

NGEWU, AJ

	

 Aggravating circumstances as defined in Section 1 of Act 51 of 1977 are present in that on the occasion during which the offence was committed, whether before or after the commission of the offence the accused inflicted grievous bodily harm to Bertus Schreuder, and that the provisions of Section 52 of Act 105 of 1997, the Criminal Law Amendment Act, are applicable in that there were aggravating circumstances involved as well as the taking of the motor vehicle.

He was in Cape Town on the afternoon of the murder, being 26 July 2005, [the murder which is now subject of dispute]. He received   a   telephone   call   from   one   Ebrahim   Gumba,   who persuaded him to look after the deceased's motor vehicle. He did not know that it was the deceased's car and he indicated to him that it was under his lawful custody and control. He knew many people in Muizenberg, Steenberg or Retreat area and often visited them at their houses.  He may have been to the deceased's house prior to the murder, although he did not recognise it from pictures contained in annexure A. A bundle of documents was tendered to the Court and also 220 admissions, with the leave of the accused.

	

	

When the fingerprint experts arrived and opened the car, they found the accused international driver's license on the floor of the car. The witness questioned the accused about the license at the police station and the accused said that he had lost it three months ago.   The accused was then arrested, the laptop cover was found in the neighbour's yard.

Martin Clive Marais testified that he was an inspector and was attached to the local Criminal Record Centre in Cape Town as a photographer.     He  had  received  training  in  photography and attended various courses, he also does videos and collects forensic evidence at the scenes. He was called to the scene at Chad Road, he photographed, videoed and collected various forensic exhibits and blood swabs from the blood splattered through the house, they were sampled and sealed.   He kept them in his possession until he handed them to the LCRC. The plate in photo 19 of the photo album was the only one left out of place, the house was neat. Food in it was relatively fresh, it had no mould. He also found a claw hammer as depicted in photo 51 of the photo album.   The hammer was forensically tested and was excluded. Inspector Flewin brought another hammer which was allegedly used in the commission of the crime. It was number 32/05 and was handed in with other exhibits at LCRC, Cape Town.

Captain Ulrich Knoetze testified that he was the reporting officer, he had DNA techniques qualifications and a BSC from UWC. He received the hammer that was properly sealed in an exhibit bag. Mr Mark Fassen testified that received two large bags containing smaller bags with exhibits, they were properly sealed, they would not accept unsealed bags for exhibits.

	

The State also handed in a portion of the bail proceedings. Mr Selestin testified in his own defence.   He told the Court that he was a Tanzanian national, he came to South Africa in 2003. He has performed various jobs. During the time of his arrest he stayed at No 12 Erica Road and had been there for not more than a year. His car was parked next to the window, anybody could have come to the premises any time because it was an open yard. Only one vehicle could park on the property. Mr Tango's wife would come to him, that is to his room, when they quarrelled, asking him to call the police. For that reason Tango accused him of having an affair with his wife. There was no washing machine anywhere in the yard.   Mr Tango would do his washing from a bucket. He knew nothing about the hammer. He did not know how the hammer got there. He'd never seen the hammer before.

The Court wishes to highlight that when cross-examined the accused told the Court that he got the card the day following the 5 visit of the choirmaster. Mussa was his other name, that he admitted. He never knew the address of this Ebrahim, all he knew is that he stayed at Site 5, Fish Hoek. He had had his telephone number but it got lost when he got arrested. He is not sure if he gave the police the number of Ebrahim.

That basically is the evidence that the Court has to weigh and balance. Most of the evidence, I must say, was not disputed by the accused. He does not dispute that his fingerprints were found in the plate in the house of the deceased.   He further does not dispute that a fingerprint of his was found inside the deceased's motor vehicle. He further does not dispute that the property of the deceased, other than the vehicle, were also found in his possession. He comes up with a certain Ebrahim who had given these items over to him.   The Court must state at this stage that
 during the State's evidence he failed to oppose the version by one of the officer's that they took the accused round to locate this Ebrahim and they could not come up with the details of Ebrahim. They   did   everything   to   locate   Ebrahim   but   there   was   no cooperation from the accused and there is nothing that they could have done.

 

NGEWU, AJ