Your Counsel, Mr Isaacs, submitted that the State has failed to make out a prima facie case against you on all except the competent verdicts of being in possession of suspected stolen property; defeating and/or obstructing the course of justice; and being in possession of firearms without a licence and that, for that reason you ought to be discharged. Authority is against Mr Isaacs on this point. It was held in Attorney-General of Zimbabwe vs Mzizi, 1992(2) SACR, 582, (ZS) at 583F, (relying on South African authority) which is mentioned in the case:
“The Section therefore permits a discharge at the end of the State’s case when, and only when there is no evidence on which a reasonable man acting carefully might properly convict on the alternative or competent charge.”
The State proved the following: A substantial part of the goods stolen and transported from the farm Kareeboomvloer by Accused 2 and 3, were found either at the home of Accused 1 in Rehoboth or at his home at farm Areb. These goods were under his (Accused no. 1’s) direct control at the time. The firearms stolen from the farm and also used in the murders or the robberies, were found hidden at farm Areb. Accused 1 pointed them out to the police who the seized them.
The State also led evidence to the effect that Accused 1 admitted to the police that he suspected that the items brought to him by Accused 2 and 3 were stolen.
The State had also established that when Accused 2 and 3 left Kareeboomvloer, after the crimes were committed there, the first person they contacted by cellphone was Accused 1. The inference is irresistible therefore that the purpose was to meet with him in order to deposit with him the stolen items. As I already explained, the stolen items were found with Accused 1.
There is also the evidence that Accused 1 was visited by Accused 2 and 3 just before they left for farm Kareeboomvloer. Accused 4 knew (the evidence shows), and this much is clear from what accused 4 himself said under oath in his bail application, that accused 2 and 3 were going to some place to fetch livestock which would be brought to his farm. Of the items found at the farm Areb under the control of Accused 1, were livestock stolen from the farm Kareeboomvloer belonging to the deceased Erasmus couple, on his own admission stolen by Accused 2.
The law requires that a person moving livestock from one point to another must have a permit for that purpose. In terms of the Animal Diseases and Parasites Act, 13 of 1956, a person who moves livestock from one place to another, is required to obtain a veterinary services permit to move animals. Such permit identifies the person moving the livestock, the nature of the livestock to be moved, the particulars of the place from which such livestock is to be moved and the place to which it is to be moved.
If, as is common cause, Accused 1 was informed that Accused 2 and 3 were bringing livestock to his farm, it is only reasonable to assume, with the provisions of this law in mind, that he would have enquired about the nature of the stock, where it was coming from, and whether such permit had been obtained. If he did not do that, and it was established that he did not, it raises the inference that he was aware that accused 2 and 3 (or accused 2 at the very least) were not receiving the stock in a lawful way.
On the above uncontradicted facts there is a strong inference, therefore, although not the only one, that Accused 1 knew that (at the very least Accused 2) would be going to Kareeboomvloer to commit the crimes they are all charged with. It would be expecting too much to have expected the State to prove the state of mind of Accused 1, both before the crimes were committed and after. Thus, on the proven facts, the State submits that there was common purpose between Accused 1 and Accuseds 2 and 3. Only Accused 1 can explain if such an inference is justifiable in the circumstances considering that it relates to his state of mind and he might, when he testifies, supplement he State’s case that he acted in common purpose with accused 2 and 3.
The evidence shows further that Accused 1 was arrested late at night on the 6th of March at his home at farm Areb. He had, by then, not alerted any law enforcement agency or authority about his suspicion that stolen goods may have been deposited with him by Accused 2 and 3. That, in my view, is further prima facie and very strong circumstantial evidentiary material that he either knew that Accuseds 2 and 3 were going to engage in a criminal enterprise that weekend; or that he knowingly received goods which could reasonably be suspected to have been stolen, a competent verdict on the offence of theft charged in the indictment.
In S v Cooper and Others 1976(2) SA TPD 875F a case which Mr Isaacs, on behalf of Accused 1, suggested was wrongly decided, but which, after careful reflection I’m satisfied has been properly decided, it was held that:-
“When two or more persons are engaged in a common purpose, the acts and declarations of any of them in pursuance of that common enterprise are admissible against the other. It is immaterial whether the existence of the common enterprise or the participation of the persons therein, be proved first although either element is nugatory without the other.”
So, the inference of common purpose (at the very least between Accused no. 2 because of his admission to the offences at farm Kareeboomvloer) and accused 1, is not an unreasonable one and it may be supplemented when Accused 1 comes to testify on his own behalf.
The facts proved by the State so far also raise a very strong inference of accessory liability on the part of Accused 1. Section 257 of the Criminal Procedure Act states:-
“If the evidence in criminal proceedings does not prove the commission of the offence charged but proves that the Accused is guilty as an accessory after the fact of that offence or any other offence of which he may be convicted on the offence charged, the accused may be found guilty as an accessory after that offence, or as the case may be, such other offence, and shall, in the absence of any punishment expressly provided by law, be liable to punishment at the discretion of the court …”
As is stated in Burchell and Milton, Principles of Criminal Law, 2nd Ed., at page 419,
“An accessory after the facts is someone who unlawfully and intentionally after the completion of the crime associates himself or herself with the commission of the crime by helping the perpetrator or accomplice to evade justice.”
As I have already said, the Accused 1 at the time that he had been arrested had not reported his suspicion of possible criminal conduct by accused 2 and 3 to any person in position of authority. For all of the reasons I have given, Mr Neidel, your application in terms of Section 174 is refused.
Accused 2 informed the Court, through his Counsel, that he will testify in his own defence. Inspector Theron stated under oath at this trial that Accused 2 told him that Accused 4 contracted him to kill the latter’s parents. Accused 2 also testified at the trial-within-a-trial and there repeated that allegation against Accused 4. Mr Theron, on behalf of Accused 4, has conceded that for the purpose of considering the application in terms of Section 174, it would be competent for the Court to have regard to what Accused 2 said at the trial-within-a-trial.
I must therefore assume that Accused 2 will come and implicate Accused 4 in the commission of the offences. It is trite that the State may rely on the testimony of Accused persons implicating each other. I am conscious that Accused 2 had right from the start after his arrest, owned up to the killings at Kareeboomvloer and never implicated Accused 4. He had about five opportunities where he could implicate Accused 4 but never did so. Mr Theron places great store by this fact.
The evidence on record at this stage of the trial brought the following to the fore, amongst others:
Accused 4 knew that his parents went to Kareeboomvloer on 5 March 2004. He spoke to the mother before the parents left. He was to check on them if he had not heard from them by 19:00 in the evening. Not having heard from them, he took off alone for the farm in the evening. Sergeant Eimann who was the first police officer to whom Accused 4 reported the killing of his parents, testified that Accused 4 told him that he phoned the farm several times, did not get any answer and therefore decided to go to the farm. He went to the farm alone in circumstances where he it is reasonable to infer that he knew all was not well with the parents at the farm.
No suggestion was made through cross-examination that accused 4 had told anyone alive on this earth that he was going to the farm to check on his parents. This raises a reasonable inference that he knew what was going on at farm Kareeboomvloer.
The evidence on record also shows that the first people to have arrived at Kareeboomvloer after Accused 4 left the farm, were the police. The police found all the gates leading to the farm closed, including the gate to the farmhouse. Sergeant Joodt’s testimony remains unchallenged in this regard. This shows that after Accused 4 had left the farm he made sure that he closed all the gates. Is that consistent with the actions of someone who had just seen his parents brutally murdered and was leaving the farm in fear? Common sense and human experience teach otherwise.
There is also the report made by Accused 2 that he had been handed a firearm and a firearm licence by Accused 4 before the crimes were committed. Mr Theron has suggested that there is evidence to show that Accused 2 might have stolen the licence when he visited the farm some time before the crimes were committed, when he went to the farm to collect his tools. As I understand the evidence, that visit took place in the presence of late Mr Erasmus.
In my view, at this stage of the trial, it is possible to draw the inference (although not the only one) that Accused 2 was handed the firearm licence by Accused 4. These main factors and others to which at this stage I do not make specific reference, tend to corroborate the version that Accused 2 was procured by Accused 4 to kill his parents.
Although there is no direct evidence of a contract to kill, Accused 2 said there was such a contract and there is circumstantial evidence to support that allegation. Therefore, Accused 4, your application in terms of Section 174 is refused.
ON BEHALF OF THE STATE
OFFICE OF THE PROSECUTOR-GENERAL
ON BEHAL OF ACCUSED NO. 1
DIRECTORATE OF LEGAL AID
ON BEHAL OF ACCUSED NO. 4
DIRECTORATE OF LEGAL AID