IN THE HIGH COURT OF SOUTH AFRICA (WESTERN CAPE HIGH COURT, CAPE TOWN)
Case No:    A29/2008
In the matter between:

Versus

JUDGMENT DELIVERED ON 13 NOVEMBER 2009

Allie, J

[1] The appellant was convicted on 1 June 2007 in the Knysna Regional Court of murder and sentenced on 16 October 2007 to 10 years imprisonment.

[2] The state alleged that on 10 March 2001 in the Knysna Police cells, the appellant murdered a 15 year old youth, one Richard Stephanus Armoed by beating him to death. The state alleged that a police officer, Mr Rein encountered the appellant outside a night club. The appellant insisted that Rein should give him an affidavit so that he could be allowed into the night club. It was Rein's testimony that the appellant was intoxicated and aggressive so he arrested him for being under the influence of liquor in a public place.

[3] At the police station the appellant repeatedly invited Rein to beat him saying he wanted to then press charges against Rein if he beat him. The appellant allegedly refused to give his name, age and other personal information to the police. Rein alleged that the appellant twice jumped over the counter in the Police Service Centre.

[4] The appellant allegedly resisted being taken to the police cells by holding onto the door frame and by throwing himself onto the floor. Rein estimated that the appellant could be 16 or 17 years old and decided to place him in a juvenile cell. The deceased was sleeping in the front part of the cell at the time. He was lying on the right side in the lobby of the cell. When Rein asked the deceased if everything was in order, he moved slightly.

[5] Constable Grootboom accompanied Rein when he took the appellant to the cell. Rein testified that the appellant had sustained some injuries because he resisted being placed in the cell and he tried to escape while he was in the Service Centre. The injuries were described as minor.

[6] Rein then continued to patrol the area. When Constable Grootboom and Inspector Terblanche later placed another person, one Isak Campher, in the adult cell for being drunk in a public place, they did a cell inspection.

[7] At 2h15am they did a cell inspection and told the appellant to stop banging on the bars of the cell gate. Close to 3am Inspector Terblanche and Constable Grootboom did a further cell inspection. They saw blood spatter against the wall of the juvenile cell. They found the bloodied body of the deceased in the front part of the cell. The felt for a pulse but there was none.
[8] When they asked the appellant, who was laying further inside the cell, what happened, he did not answer them. Inspector Terblanche went to call Inspector Palmer, the station commander, while Constable Grootboom waited outside the cell gate.

[9] Inspector Palmer contacted the ambulance service, the station commissioner, the stand by officer and Inspector Rein. Inspector Rein arrived and went to check the body of the deceased for a pulse. He asked the appellant what he had done to the child. According to Rein, the appellant was wet at the time. The appellant then alleged that Rein had come into the cells earlier, had beaten the appellant and killed the deceased.

[10] The clothing of both Rein and the appellant were then forensically tested and analysed. When a luminol reagent was applied to parts of the clothing of the appellant, it revealed blood stains.

[11] The pathologist found that the deceased died as a result of severe head injuries. She found that the deceased's head must have been banged against the wall and/or other surfaces to cause the haemorrhaging, swelling and lacerations. She said that "the whole scalp was just one massive haemorrhage."

[12] The district surgeon testified that the sleeves of the T-shirt of the appellant and the lower line of his pants were damp. Appellant also told Dr Greve that Rein murdered the deceased.   He could see no blood on his clothes.   He observed a small amount of blood on the right shoe of the appellant. The doctor found him to be agitated. The doctor found that his pupils were dilated and responded poorly to light and he smelt of alcohol, therefore he concluded that the appellant consumed alcohol. He took scrapings from underneath the nails of the appellant. The doctor noted small multiple abrasions on the face and neck of the appellant and recent, red abrasions on his back.

[13] Ms Sender was held in the female cell next to the cell in which the appellant and the deceased were kept. She heard the appellant shout and make a noise against the bars of his cell's gate. She heard a second voice, which she later discovered was the voice of the deceased, shouting and crying. She then heard the appellant rudely telling the deceased to keep quiet. She heard a banging and it sounded like the deceased was crying in pain. She said that the appellant swore at the deceased and at the police. She became frightened. After a long while she no longer heard the deceased crying. The banging also stopped and the appellant stopped shouting and swearing. The Section 220 admission made on behalf of the appellant was handed in as Exhibit I. In it the appellant admitted the results of the forensic tests and the cause of death of the deceased.

[14] The forensic report revealed that blood that matched that of the deceased were found on the shoes, pants, shirt and underpants of the accused. The blood of the appellant was found on the clothes of Inspector Rein.

[15] The appellant was interviewed by Captain Coerecius of the internal investigation branch. The appellant told Captain Coerecius that he had not alleged that Inspector Rein had assaulted the deceased.

[16] The appellant testified that he approached Inspector Rein who was in a police van and asked for a lift to the police station. At the community service centre he decided to obtain an affidavit from the police stating who he was as he had lost his identity document and he wanted to use the affidavit when he applied for employment. As he left the service centre, Rein assaulted him and took him to the police cell. He confirmed that the deceased was lying in the front lobby of the cell. He claimed that Rein then instructed him to go into the back part of the cell, and locked the gate. At that point he said that the deceased tried to run out of the cell. He said that Rein chased the deceased and assaulted him. Thereafter Rein unlocked the inner cell gate.

[17] After Rein left, the appellant said that he found the deceased lying in a pool of blood and he was unconscious. The appellant said that he turned the head of the deceased to the side to ease his breathing as he was lying face down. He had blood on him and decided to wash it off for fear of being infected with HIV/Aids. Despite Constable A.J. Hugo testifying about the appellant's aggressive behaviour the appellant himself denied that he was an aggressive person.

[18] It is clear that the appellant was angry at being locked in the police cell. The evidence of Inspector Rein, Inspector Terblanche, Inspector Palmer, Constable Grootboom and Ms Sender all corroborate that allegation. The circumstantial evidence all point to the only reasonable inference being that the appellant assaulted the deceased to the point where the latter succumbed to his injuries and died.

[19] The version of the appellant is not reconcilable with the probabilities nor doe's it point to a reasonable explanation for the death of the deceased and accordingly does not cast reasonable doubt on the state's case.

[20]   I can accordingly find no basis for interfering with the conviction.

[21] When considering the brutality of the offence and the youthfulness of the deceased who clearly was no threat to the appellant against the youthfulness of the appellant and the fact that he has been a troubled young man, an appropriate punishment would have to be a period of direct imprisonment.

[22] To the extent that the appellant is capable of appreciating the wrongfulness of his conduct, he should suffer the consequences of his brutal and unjustified anti social behaviour. There is no misdirection in the conduct of the trial in the court a quo in the judgment of that court. The sentence does not induce a sense of shock nor is it startlingly inappropriate. There is accordingly no basis for interfering with the sentence.

I would accordingly dismiss the appeal.

ALLIE , J
I agree and it is so ordered
VELDHUIZEN,