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Joubert v S (A652/2010) [2011] ZAWCHC 129 (4 February 2011)

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JUD G M E N T

ZONDI, J

The appellant, who was legally represented, appeared in the George Regional Court on a charge of murder. The charge sheet alleges that on or about 17 April 2008, he murdered Marcellino Hendricks ("the deceased") by setting him alight. The appellant pleaded not guilty to the charge, but after the trial he was convicted and sentenced to 12 years imprisonment. With the leave of the court a quo he now appeals to this court against conviction and sentence

It is common cause that the deceased sustained 60% burns on 17 April 2008 and from which he subsequently died on 19 May 2008 What was in dispute is whether the appellant was the cause of the fire which caused the deceased to sustain burns, which resulted in his death. In the plea-explanation which the appellant made pursuant to the provisions of section 115 of the Criminal Procedure Act 51 of 1977, the appellant, inter alia, admitted first, that he had caused the deceased, who was indebted to him, to be locked inside the toilet and secondly, that he told one Denver Petersen to pour petrol into the toilet in which the deceased was kept captive.

The evidence which forms the basis of the appellant's conviction and sentence was briefly as follows. Alfonso Bredenkamp and the deceased went to see the appellant at the latter's request on 17 April 2008 at about 11 o'clock in the morning. The appellant had sent Denver Petersen to call them. On his arrival at the appellant's place, he found the appellant, Llewllyn. The deceased was already at the scene when Alfonso arrived. The appellant wanted to know who had taken his money. He told the appellant it was not htm. The appellant got angry. The deceased also denied to have taken the appellant's money.

The discussion took place on the street next to the outside toilet on the appellant's property. The appellant told Denver to get him an empty bottle, which he did. The appellant held the deceased, then hit him on the lip with the bottle. The bottle slipped off his hands and the appellant told Denver to pick it up for him. The deceased told the appellant that it was not him who took his money. The witness did no stop the assault on the deceased as he did not want to get involved, as he was afraid of the appellant.

Denver assisted the appellant to push the deceased into the toilet and the appellant locked it. While the deceased was locked inside the toilet, the appellant sent Llewllyn to buy petrol. Llewllyn returned with petrol, the appellant took it and poured it inside the toilet under the door. At that stage the witness, who was standing some 12 metres away from the toilet, as he wanted to distance himself away from the occurrence and Denver and Llewllyn watched on. The witness happened to have on him a box of matches The appellant, after pouring petrol inside the toilet, asked for matches. The witness took out a matchbox which contained about six matchsticks and handed it to the appellant. The appellant lit a matchstick and thereafter threw it inside the toilet in which the deceased was. The petrol ignited. The appellant thereafter ran away.

He returned later. When he heard the deceased screaming, the appellant told the witness to go get the toilet keys which he did. He tried to open the lock, but as at that stage the door handle was too hot to handle and he stepped back. Eventually someone was able to open the toilet and rescued the deceased. The deceased got out and went home while the witness, the appellant and others remained behind and smoked TIK. During cross-examination he denied that he helped appellant push the deceased into the toilet. He also denied that they smoked pipe after Denver had poured petrol into the toilet on the appellant's instruction.

Denver Petersen confirmed that on the day in question he was asked by the appellant to call Alfonso and the deceased in order to confront them about some money that went missing. Present at the scene were him, Alfonso, the deceased and Llewllyn. Alfonso and the deceased denied that they had anything to do with the missing money. The appellant was angry and he asked him to get him an empty bottle, which he did. The appellant hit the deceased with an empty bottle According to the witness nobody assisted the appellant to push the deceased into the toilet. After forcing the deceased into the toilet, the appellant sent the witness to go fetch a padlock from the appellant's house, which he did. The appellant took the padlock and locked the toilet with the deceased inside.

The witness went home when Llewllyn returned with the petrol. He went back to the scene about three minutes later, that is after the burning of the deceased He suspected that the appellant was going to use petrol to set the toilet alight in which the deceased was being held captive. He denied that he is the one who poured petrol into the toilet. He also denied that they were smoking pipe when petrol was poured into the toilet. He said they only smoked pipe after the deceased was set alight. According to the witness, Llewllyn did not stay with them after bringing petrol, he went home to clean his bike The appellant had on him keys to the toilet. He denied that Alfonso had keys on him, but he admitted that he went to fetch a padlock and the keys from the appellant's house on the appellant's instruction He was afraid of the appellant. Thereafter the state closed its case and so did the defence.

The court a quo accepted the evidence of the three state witnesses whom it found to have been honest and reliable. It also found that there were no inherent improbabilities in their testimony. It, therefore, concluded that there was reliable evidence which implicated the appellant and which called for an answer. The court a quo concluded that the state had proved beyond reasonable doubt that the appellant had a requisite intent in the form of dolus eventualis to murder the deceased and proceeded to convict him of murder.

Mr Burger, who appeared for the appellant, submitted that the court erred in finding that the state had proved its case beyond reasonable doubt and in convicting the appellant of murder, as it was not clear whether he had a requisite intent to murder the deceased. In support of the submission, it is indicated in the appellant's heads that the appellant should have been convicted of culpable homicide, because Llewllyn and Petersen, upon whose evidence the court a quo relied to convict the appellant, were accomplices and their evidence should have been approached with caution and there is no indication that that was done.

In the heads, it is argued that because the evidence was not properly treated, it was wrong for the court a quo to rely upon it in convicting the appellant and for that proposition reliance was placed on various decisions such as R v Ncanana 1984 (4) SA 399 AD and S v Van Vreden 1969 (2) SA 524 (NPD). These cases set out the approach to be adopted by a court faced with the testimony of an accomplice.

It may be so that Alfonso and Denver were accomplices to the extent that either the one or the other might have abated the appellant in either pouring petrol inside the toilet or forcing the deceased into the toilet, or providing matches with which to ignite petrol. Even if they were accomplices, as suggested by the appellant, I am in agreement with the trial court's treatment of their evidence and its findings arising therefrom. The trial court which had an advantage to observe Alfonso and Denver when they testified, commented favourably on their demeanour Even if Alfonso and Denver were accomplices as suggested by the appellant, in my view their evidence met the requirements of the cautionary rule.

Denver corroborated Alfonso's evidence insofar as he explained the motive for the attack on the deceased by the appellant. The picture which emerged from their evidence is that the appellant masterminded the death of the deceased and he did so with a requisite intent.

It was also submitted by the appellant that the court a quo erred in finding that the state witnesses' evidence was truthful and reliable, because they contradicted each other on various material respects.

It is correct that Alfonso and Petersen contradicted each other regarding who assisted the appellant to force the deceased into the toilet and who actually ignited petrol. According to Alfonso, Denver Petersen assisted the appellant to force the deceased into the toilet. This is denied by Denver Petersen. According to Alfonso, it is the appellant who ignited the petrol and when that happened, Denver was watching on. Denver said he left the scene immediately after the delivery of petrol by Llewllyn and he later returned to the scene after the release of the deceased from the toilet. He did not see who ignited petrol. But they both denied that after the pouring in of petrol into the toilet, they lit a pipe and that petrol could have been ignited accidentally. They both said the lighting and smoking of pipe occurred after the burning of the deceased.

It is clear to me that the witnesses, despite the contradictions, corroborated each other on material issues which were in dispute The contradictions are not material. In the circumstances I agree with the court a guo's finding that there was credible and reliable evidence implicating the appellant at the end of the state's case and which called for an answer and failure by the appellant to testify, strengthened the state's case against him. See in this regard S v Boesak [2000] ZACC 25; 2001 (1) SACR 1 (CC) at 24.

After the release of the deceased from the burning toilet, the appellant told him that he could go to the police. He would wait for them. It could thus be inferred from the appellant's conduct, both before and after the burning of the deceased, that the appellant had an intent in the form of dolus eventualis to murder the deceased.

As regards the sentence, it was submitted on behalf of the appellant that the court a quo did not attach sufficient weight to the circumstances which were in his favour and that its failure to do so, resulted in the court a quo imposing an unduly harsh sentence. I disagree with the appellant's contention. The sentence of 12 years imprisonment is not excessively harsh to induce a sense of shock. The deceased was assaulted and forced into a toilet which was thereafter locked. Petrol was poured into the toilet. It was thereafter ignited and the deceased burnt.

According to the medico-legal report, the deceased suffered 60% burns. The wounds extended over the face, the neck, the flexor, extensor surfaces of both arms, the posterior and anterior aspects of both legs, the dorsal aspects of both feet and the plantar aspect of the right foot. He later died in hospital from these wounds. The crime with which the appellant was charged, was subject to the provision of the Minimum Sentence Act, which means that upon conviction he faced the prospect of being sentenced to 15 years imprisonment in the absence of there being substantial and compelling circumstances.

The court a quo investigated this aspect. It considered the fact that he had an intent in the form of dolus eventualis and that he had, to a certain extent, admitted his role in the killing of the deceased to constitute substantial and compelling circumstances. In my view, having regard to the personal circumstances of the appellant, the nature of the offence and the interest of the community, the sentence imposed cannot be said to be unduly harsh. For these reasons, there is no reason for this court to interfere with it.

In the result, I WOULD DISMISS AN APPEAL AGAINST BOTH CONVICTION AND SENTENCE

LE GRANGE. J: I agree.

LE GRANGE. J

ZONDI, J: So it is ordered.

ZONDI, J