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[2016] ZAWCHC 75
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Van Der Merwe v S (A 439/2015) [2016] ZAWCHC 75 (22 June 2016)
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THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: A 439/2015
DATE:
22 JUNE 2016
Reportable
In
the matter between:
MORNĖ
VAN DER
MERWE
..................................................................................................
Appellant
And
THE
STATE
............................................................................................................................
Respondent
Coram:
Bozalek et Boqwana JJ
Delivered:
22 June 2016
JUDGMENT
BOQWANA J
Introduction
[1]
The facts of this case are quite
tragic. A young man, André Lubbe, (‘the deceased’)
met his death after being
struck by a motor vehicle in the early
hours of the morning of 14 July 2010, whilst pushing his VW Golf
motor vehicle with his
friend, Andries de Villiers (‘De
Villiers’) to the garage after having run out of fuel. The
motor vehicle that collided
with them sped off without stopping. This
incident took place in Giel Basson Avenue in Parow. Extraordinary
events, which I deal
with later, followed, which linked a silver BMW
belonging to the appellant to this tragic incident.
[2]
The appellant appeared before the
Parow Regional Court on charges of defeating the ends of justice
(count 1), fraud (count 2), culpable
homicide (count 3) and
contravening section 61 (1) (a) to (d) read with sections 69 and 89
of the National Road Traffic Act, No.
93 of 1996 (‘the National
Road Traffic Act’) (count 4). He pleaded not guilty to all the
charges. He was convicted
in respect of all counts on 20 March 2015.
On 13 August 2015, he was sentenced to a fine of R2 000 or twelve
(12) months imprisonment
in respect of count 1; to a fine of R3 000
or 3 years imprisonment and a further three years which was wholly
suspended in respect
of count 2; three years imprisonment in terms of
s 276(1)(h) of the Criminal Procedure Act 51 of 1977 (‘the
Criminal Procedure Act&rsquo
;) with certain specified conditions
including house arrest and community service in respect of count 3,
and to a fine of R2000
or twelve (12) months imprisonment, which was
wholly suspended, for contravening
section 61
(1) the
National Road
Traffic Act. With
the leave of the magistrate, the appellant appeals
against his conviction.
[3]
Most of the facts are common cause
as the appellant admitted numerous written statements of the state
witnesses in terms of
s 220
of the
Criminal Procedure Act, which
led
to the state not calling most of those witnesses. I will only
highlight those statements that become important in the analysis
of
the evidence.
[4]
The appellant submitted a plea
explanation together with his
s 220
admissions. In his plea
explanation he denied that he was involved in the motor vehicle
collision which was the subject of the
trial. He, however, admitted
that a motor vehicle collision occurred in Giel Basson Avenue, Parow
which led to the death of the
deceased.
[5]
The principal issue in dispute is
accordingly whether or not the BMW vehicle belonging to the appellant
was involved in the collision
that caused the death of the deceased
on 14 July 2010 at Giel Basson and whether the appellant was the
driver of that vehicle.
Evidence
[6]
The state called Mr Deon Lubbe
(‘Lubbe’), the deceased’s brother, Mr Jerome
Pretorius (‘Pretorius’),
a manager of a panel beater
where the appellant’s vehicle had been taken for repairs and
Lieutenant Colonel Getruida van
Huyssteen (‘van Huyssteen’),
an expert who testified on paint samples, as witnesses. The appellant
did not testify
nor lead any evidence. Upon the closing of the
state’s and the defence cases, the magistrate called an expert
witness in
terms of
s 186
of the
Criminal Procedure Act. I
return to that issue later in the judgment.
[7]
Lubbe testified that on 14 July 2010
before 05h00 in the morning, he received a telephone call from his
mother Mrs Nola Lubbe (‘Mrs
Lubbe’), informing him of his
brother’s, (the deceased) accident. He proceeded to the
scene of the accident.
On his way there, he received a further
telephone call informing him that his brother had passed away. When
he arrived at the scene
he saw police vehicles, his mother, as well
as his brother’s friend, De Villiers. His brother’s body
was lying on the
ground and everyone was in shock. There were
lot of objects lying around. After the police had finished with
their
work he and his mother asked for permission, which was given by
the police, to pick up some of the items that were lying around.
These included pieces of grille and parts of the deceased’s
vehicle. They removed these items as well as articles that were
in
the deceased vehicle’s boot and put all these items in his
(Lubbe’s) vehicle.
[8]
The deceased’s vehicle was
then towed to the police station. Lubbe went home with his vehicle.
On his way home, his mother
phoned looking for the deceased’s
identity document (‘ID’). When he got home he opened the
boot of his vehicle
and started unpacking the items which they had
collected at the scene of the accident. He found the deceased’s
ID and also
noticed a silver mirror amongst the items. He
thought this strange because the deceased’s vehicle was a white
Golf.
He concluded that the mirror was from the other vehicle that
was involved in the accident. The mirror had a sock cover in the
colours
of a South African flag, as was commonplace during the soccer
world cup. There was also blood and tissue around the mirror
which he thought were his brother’s. He then asked De Villiers
about the type of vehicle that was involved in the accident.
De
Villiers made it clear that it was a BMW. The prosecutor informed
Lubbe that De Villiers never mentioned a BMW in his written
statement
but simply referred to a ‘
silver
coloured biggish sedan
’. His
response was that he did not know what made him think that the mirror
he had in his possession was that of a BMW.
[9]
Later that day, Lubbe gave the
mirror to Constable Eugene Human (‘Human’), the
investigating officer. He also put a
notice in many newspapers and
contacted radio stations regarding a motor vehicle that he was
looking for which was damaged on the
left front side. He phoned
all local police stations and asked them to be on the lookout for
anyone reporting such a motor-vehicle.
He also notified
insurance companies. The reports were published in newspapers the
following day and such reports continued for
about three days.
[10]
In cross examination, he testified
that he handed the mirror and the holder as one unit to the police.
He was shown three
separate items in photos 3 and 4 and conceded that
the items in those photos did not look like what he handed in. He
further conceded
that he did not see the mirror on the scene of the
accident.
[11]
The mirror was in fact picked up by
Mrs Lubbe from the scene of accident as appears from her written
statement. She placed it in
the boot of the deceased’s vehicle.
When her son, Deon Lubbe, arrived at the scene of the accident, she
cleared the deceased’s
Golf and put all the items in his
vehicle.
[12]
The next witness, Pretorius,
testified that he worked as a manager of the workshop at a
panelbeating firm in the Maitland area.
On 14 July 2010, at
approximately 07h30 in the morning, the appellant phoned him advising
him that he had been involved in an accident
and requested him to
arrange a courtesy vehicle. The appellant later arrived at
Pretorius’ workshop at approximately
11h30 with a silver BMW.
The appellant showed Pretorius the damage and asked for a quote.
The damage was on the left
hand side of the vehicle. Pretorius
noticed that the left hand side mirror was missing and there were a
few dents in the other
panels. He wrote down all the details
and emailed the quotation to the appellant the following day of 15
July 2010.
On Friday, 16 July 2010, he read a report in the
newspaper of an incident which had happened and that a request was
made to workshops
and panel beaters, amongst others, to be on the
lookout for a vehicle with a missing mirror.
[13]
In view of the fact that the
description in the newspaper report corresponded exactly with the
damage on the vehicle brought in
by the appellant, he phoned and
asked him if the vehicle described in the newspaper was his, to which
the appellant said ‘no’.
At approximately 15h30,
the appellant arrived at Pretorius’s office and they looked at
the newspaper report together. The
appellant said it could not be
him. A couple of minutes later, the appellant phoned him to ask which
newspaper contained the article
and Pretorius told him.
[14]
On Monday 19 July 2010 an insurance
assessor arrived and assessed the vehicle brought by the appellant.
The panel beaters did not
immediately work on the vehicle as they
were waiting for an instruction from the assessor’s office. On
Saturday, the assessor
phoned and told him not to continue with the
work on the appellant’s vehicle. The assessor gave no
reason. The panel
beaters did not work on the vehicle and Pretorius
did not contact the appellant any further. The vehicle stood at
their premises
until two policemen came to fetch it. He did not
phone the police and did not know why they removed the vehicle.
[15]
In cross examination, Pretorius
testified that the vehicle did not look as if it had collided with
something solid or that it was
involved in a head-on collision
situation. It could have either hit a pole, a barrier or
perhaps a pedestrian but he was
not sure.
[16]
The next witness, Lieutenant-Colonel
van Huyssteen, testified that she was employed by the SAPS in the
Forensic Science Laboratory.
She worked there for 18 years and
in their paint division for 10 years. She had received paint
samples in respect of a BMW
and a Golf vehicle in this case and was
requested to examine the paint samples that came from the two motor
vehicles to see whether
the samples from one vehicle matched the
paint samples from the other vehicle.
[17]
She opened each of the samples and
looked at them under a microscope for maximum enlargement. Stereo
microscopy is used to compare
morphological and topographical
properties of substances such as form, size and colour. Both the
process and the interpretation
of the results required knowledge of
microscopy.
[18]
The paint layer sequences of
exhibits relating to the Golf and the BMW that she examined were the
same and therefore comparable.
She testified that the paint layer
sequence in the exhibits relating to the paint samples of the Golf
and the BMW were comparable
and could have come from the same
vehicles. By comparable she meant the paint, the colour and the
texture.
[19]
In cross-examination, she conceded
that the paint samples she analysed could have come from countless
BMWs and that her report was
not conclusive as to the identity of any
vehicle involved, unlike a fingerprint. That concluded the list
of witnesses called
by the state. It is important to highlight some
of the admitted statements as they are crucial to this appeal.
[20]
The set of statements that follow
deal with the issue of the mirror. The investigating officer, Human,
confirmed in his written
statements, that he consulted with Lubbe on
16 July 2010 and received from him items that were found on the scene
of the accident
which he handed in as an exhibit to an SAPS 13 clerk,
Warrant Officer Jameson (‘Jameson’). A mirror frame that
was
removed from a silver BMW with registration number CA230996, by
Warrant Officer Marais (‘Marais’) was also handed in
to
Jameson as an exhibit. These items were photographed by Warrant
Officer Janklaas (‘Janklaas’) as handed to
him by Marais.
Janklaas then handed in those exhibits. Human collected those
exhibits from Jameson, re-sealed them in a forensic
bag serial no:
FSD-393340 and took them to Macassar for analysis. I deal with this
evidence later in the judgment.
[21]
What follows is a statement by
Sergeant Phumela Langa (‘Langa’). Langa stated in her
affidavit that she was employed
by the SAPS and attached to the
ballistic section of the Forensic Science Laboratory, Western Cape.
She is an examiner of forensic
ballistic related cases. She has
received training in forensic ballistics and holds a BSc in
Biochemistry and Microbology and BSc
Honours degrees from the
University of the Western Cape. On 12 August 2010 she received a
sealed evidence bag with number FSD-393340
(note that this is the
same forensic bag with the number that Human sealed and sent to
Macassar on 06 August 2010 for analysis)
from Case Administration of
the ballistic section containing one black and silver side mirror
which she marked 133743/10A and one
black mirror frame which she
marked 137743/10B. The side mirror and mirror frame showed unique
breakage patterns which indicated
they were previously a unit. Her
conclusions were arrived at by means of an examination and a process
which require knowledge and
skill in ballistics. On 23 August 2010,
she sealed these exhibits in an evidence bag with number FSD-668349
and handed it over
to case administration of the ballistic section.
During the period of examination the exhibits were kept in her
custody under lock
and key from 12 August 2010 to 23 August 2010.
[22]
As regards paint samples, Human
stated that on Monday 29 November 2010, he booked out item 1 of
SAP 13/1479/2010 to draft
a letter to the forensic department in
Delft to analyse paint samples and to make certain comparisons. A
letter was filed as per
B22 and exhibits were sealed in a forensic
bag with serial no. FSB-892687. The exhibits were delivered the same
day and a receipt
was received and filed.
[23]
The next set of statements deal with
reports made by the appellant to an insurance company and to the
police regarding his involvement
in an accident that took place on 14
July 2010 and action taken by Human pursuant thereto.
[24]
On 14 July 2010 at 12h15 the
appellant telephoned an insurance company called Indwe Risk Services
(‘Indwe’) and spoke
to Elizabeth Brand (‘Brand’),
an employee of that company. He reported an accident that he said had
been involved in
and in respect of which he wanted to lodge a claim.
He told Brand that he drove into a barrier and that no one else was
involved
in the incident.
[25]
Later that day, the appellant went
to a police station in Pinelands to report an accident he was
involved in. According to the statement
of Dumisani Makuleni
(‘Makuleni’) a constable with SAPS Flying squad, who was
on duty at Pinelands police station on
14 July 2010, he was
approached by a gentleman who became known to him as the appellant at
approximately 17h30 to report an accident.
He assisted the appellant
to complete an accident form. The appellant informed him that the
accident occurred on the bend of Jan
Smuts Avenue in Pinelands. The
appellant drew a plan, wrote the description of how the accident
happened and signed it. On the
accident report the date and time of
the accident are recorded as 14 July 2010 at 11h20. The description
of the accident given
by the appellant is recorded on the form as:
‘
Turning around the bend went of
(sic)
the
road and hit the barrier
.’
Details of his vehicle are stated as CA230996, Silver BMW 2001. The
vehicle is reported to be the only vehicle that was
involved in the
accident. The appellant is named as the driver of the vehicle in the
accident report. The damage to the vehicle
is noted as left mid front
and left front.
[26]
In his statement of 09 September
2010, Human stated that on 19 July 2010 he received a telephone call
from a Mr Joe Weber who informed
Human that he was an attorney
representing a person whom he was looking for in connection with a
culpable homicide case in which
the suspect drove off without
stopping. Mr Weber told him that the person that Human was looking
for was a Mr Morné van
der Merwe (the appellant). He also
informed him that his client was willing to give his full
co-operation and that he would come
in with his attorney. Mr Weber
later phoned him to inform him about where the vehicle involved in
the accident was located.
[27]
On the same day, Human went to a
panel beater in Ndabeni where he spoke to the manager Pretorius who
pointed out a BMW with registration
number CA230996 and submitted a
statement as to how the BMW got there. Pretorius also submitted a
quotation for the damage to be
repaired. Pretorius informed him that
the BMW only had body damages and could be driven. Warrant Officer CJ
Smit then drove the
vehicle to Parow SAPS where it was handed in as
SAPS 13/1458/2010. Human then arranged for the vehicle to be
photographed and have
it checked for paint deposits.
[28]
On 20 July 2010, the appellant went
to see Human with his attorney. Human took a warning statement from
the appellant wherein he
mentioned that he would have a fully
detailed statement drafted regarding the incident in question but
that he needed to consult
with his attorney first. All this evidence
was admitted by the appellant.
[29]
Before the state closed its case, Mr
Liddell, who represented the appellant at the trial, submitted that
there appeared to be confusion
regarding what was fitted and matched
by Langa. Langa referred to a mirror frame and a mirror while
other witnesses referred
to brackets that were removed from a
vehicle. He stated that he wished to place on record that it was
never intended to admit that
any part removed from the BMW vehicle
had matched any part found at the scene of the accident and that may
have broken off the
vehicle involved in the accident. What was
admitted, according to him, was that a mirror fitted into a mirror
frame. He further
advised that the defence wished to have access to
the exhibits and had asked the state to be in contact with his
instructing attorney
in regard to such arrangements. It appears that
the matter was postponed in order for the defence to secure an
expert. Upon resumption
of the proceedings, the defence closed its
case without leading any evidence.
[30]
After the closing addresses of both
the state and the defence, it became clear in the court’s view
that the defence argument
hinged on the question of whether there was
proof that the mirror found at the scene matched the mirror bracket
later removed from
the BMW vehicle by the police. The defence
contended that on proper interpretation of Langa’s evidence and
the defence admissions
as clarified, there was no such proof. The
magistrate then asked the defence to provide it with the name of the
expert witness
they had intended to call. The name offered by Mr
Liddell was of a certain Mr Johan Joubert (‘Joubert’). It
appears
that the court asked the state to subpoena the witness on its
behalf. The magistrate further mentioned that both parties would
thereafter be given an opportunity to re-open their cases. She stated
that her reason for calling the expert witness was to understand
the
position relating to Langa’s affidavit which was the very
affidavit that the defence submitted created confusion. The
court
found it to be in the interests of justice that the witness be
called. In the result, Joubert was not called as a witness.
From the
record it appears that when he was approached pursuant to a subpoena
he indicated that he had no expertise in metal fractures
and
recommended that a Dr Roediger be approached. So it happened that Dr
Arthur Roediger (‘Roediger’), was called as
an expert in
terms of
s 186
of the
Criminal Procedure Act. The
defence objected to
the calling of this witness on the basis that his name was not
mentioned by any of the parties during the trial
and that allowing
him to testify would amount to a gross irregularity. After some
debate, the court called Roediger as its own
witness in terms of
s
186
of the
Criminal Procedure Act.
[31
]
Roediger testified that he had a PhD
in Chemistry and was self-employed. He owned an analytical laboratory
which undertook any type
of chemical or physical analysis. He was
requested to compare two exhibits (two parts) being one silver mirror
cover and one black
and cream part, a mirror bracket (mounting arm).
He dismantled the bracket slightly, and compared the two parts
visually.
He used a microscope which magnified certain sections
of each of the pieces. In his report and evidence, he indicated that
the
mirror bracket and mirror housing showed identical fracture
patterns which indicated that the two sections were once a single
unit.
Further microscopic pictures of the fracture patterns were
recorded to show identical fracture patterns on the two sections
proving
that they were once a unit and were in fact matching fracture
patterns.
[32]
His conclusion was thus that the two
separate pieces matched and were at one stage a unit. The defence
chose not to cross-examine
this witness. The report drafted by the
witness was handed in as an exhibit.
[33]
Having regard to all the evidence
presented before her, the magistrate convicted the appellant on all
counts.
[34]
The appeal is based on the following
grounds:
a)
The State relied on hearsay and
circumstantial evidence in an attempt to prove that the appellant had
been the driver of the vehicle
and that he was involved in a fatal
collision with the deceased.
b)
There were discrepancies between Lubbe’s
statements to the police. In one statement he stated that he handed
over three items
(including a mirror) on 10 June whereas in another
statement he mentioned that he handed the mirror to Human on 16 July
2010. Furthermore,
Lubbe stated in cross examination that the mirror
he handed in to Human was part of a holder and formed a unit, whereas
the exhibit
that was analysed by experts was stated to be a mirror
and a frame handed in as two parts. Also, Lubbe only saw the
mirror
for the first time at his home hours after the accident;
c)
From Pretorius’ observations, it was
not apparent from the damages on the BMW with what precisely it
collided.
d)
Van Huyssteen conceded under
cross-examination that the paint layer sequence, which matched and
appeared to connect the vehicles,
could have come from a multitude of
silver BMWs and could not be conclusive.
e)
The appellant had placed in dispute during
the trial Langa’s findings that a black silver mirror and black
frame showed unique
breaking patterns indicating that they were once
a unit. He had also placed on record that what was admitted in
Langa’s statement
was that a mirror found by Mrs Lubbe fitted
the frame. He had submitted that it was never intended to be admitted
that the mirror
fitted a mounting bracket removed from the
appellant’s vehicle. Despite the fact that this issue was
placed in dispute, no
evidence was led by the state on this aspect.
f)
The magistrate committed a gross
irregularity by calling her own expert witness which rendered the
trial unfair. In any event, Roediger’s
evidence fell short in
three aspects, namely that: (i) the state never proved that the
mirror found at the scene by Mrs Lubbe belonged
to a BMW. The state’s
evidence in this respect was hearsay, which was admitted on condition
that an expert was called to
confirm that it was in fact a BMW
mirror. This was never done and evidence to this effect stood
to be excluded as inadmissible;
(ii) there was a contradiction in the
state’s evidence in that the mirror found on the scene and that
which was analysed
were not of the same colour; (iii) the state of
the mirror analysed by Roediger was not preserved.
g)
The state failed to prove the required
chain evidence pertaining to the preservation of the mounting bracket
from the appellant’s
vehicle. There was no evidence about
what happened to the exhibit after it was removed, neither was there
any trace of it
in the SAPS Parow exhibits register.
h)
The state failed to prove that the
appellant was not involved in the accident at the place alleged by
the appellant.
[35]
Mr Avontuur, who represented the
appellant on appeal, sought to advance a new ground of appeal during
oral argument, namely, that
Roediger did not place any evidence
qualifying him as an expert to examine the exhibits and therefore his
evidence should be disregarded.
Analysis
[36]
As can be seen from the evidence
outlined above, there were several pieces of evidence which had to be
considered in answering the
question of whether the appellant’s
BMW was involved in the collision that caused the death of the
deceased on 14 July 2010
in Giel Basson Avenue and whether the
appellant was the driver of that vehicle.
[37]
Principles on how circumstantial
evidence should be approached are trite and constitute, firstly, the
two cardinal rules of logic
for the drawing of inferences set out in
R v Blom
1939 AD 188
at 202 and 203, which have been distilled and followed in
many cases. The first rule is that the inference sought to be drawn
must
be consistent with all the proved facts. If it is not, the
inference cannot be drawn. Secondly, the proved facts should be such
that they exclude every reasonable inference from them save the one
sought to be drawn. If they do not exclude other reasonable
inferences, then there must be doubt whether the inference sought to
be drawn is correct. The second principle is that circumstantial
evidence should not be approached on a piece-meal basis but should be
considered in its totality (
S v Reddy
1996 (2) SACR 1
(A) 8 C-D).
[38]
Circumstantial evidence is no less
cogent than direct evidence. It can in many instances be more
compelling. As the authors
of
The
South African Law of Evidence
,
Zeffert DT, Paizes AP, St. Q Skeen A, Lexis Nexis Butterworths, 2003
at page 94 put it:
‘
Circumstantial
evidence is popularly supposed by laymen to be less cogent than
direct evidence. This is, of course, not true as
a general
proposition. In some cases, as the courts have pointed out,
circumstantial evidence may be the more convincing form of
evidence.
Circumstantial identification by a fingerprint will, for instance,
tend to be more reliable than the direct evidence
of a witness who
identifies the accused as the person he or she saw. But obviously
there are cases in which the inferences will
be less compelling and
direct evidence more trustworthy. It is therefore impossible to lay
down any general rule in this regard.
All one can do is to keep in
mind the different sources of potential error that are presented by
the two forms of evidence and
attempt, as far as this is possible, to
evaluate and guard against the dangers they raise.’
[39]
Therefore, any suggestion from the
appellant that reliance could not be placed on circumstantial
evidence is misplaced. The submission
that the state relied on
hearsay evidence to prove its case is unsubstantiated.
[40]
It is so that no witnesses
identified the BMW with registration number CA 230 996 driven by
the appellant at the scene of the
accident and that De Villiers only
remembered a silver sedan motor vehicle that was driving fast and
never stopped. A witness who
was one of the first people on the
scene, Mr Grant Cornellissen (‘Cornellissen’) testified
that after having gone to
look for a damaged vehicle he returned to
the scene again and noticed a part lying around belonging to a BMW.
Cornellissen’s
statement was admitted by the defence.
[41]
Mr Avontuur submitted that it was
never proven by experts that the mirror belonged to the appellant’s
vehicle as was undertaken
by the state during the trial. While no
particular expert evidence was led to that effect, the body of
evidence, which I return
to later, when put together suggests that
the mirror that was found was that from the vehicle driven by the
appellant which happened
to be a silver BMW. It is convenient
to start with the preservation of the exhibits as well as the
examination of the mirror
by the experts as these are amongst the
most contentious points in this appeal.
The issue of the
mirror
[42]
The issue raised on behalf of the
appellant is whether the mirror picked up by Mrs Lubbe and later
handed in by Deon Lubbe, was
the same as that which was examined by
the experts, i.e. Langa and later Roediger; secondly, whether Langa
and Roediger tested
the same components of the mirror. The challenge
is based on the contention that there was no evidence that such
exhibits were
preserved and there was a possibility that the mirror
picked up at the scene of crime was not the same as the one tested.
Secondly,
it was contended, doubt was also created by Lubbe in his
testimony when he stated that he handed in a mirror as a unit but the
photos showed three separate exhibits.
[43]
The chain evidence regarding the
preservation of the mirror from when it was handed to Human by Lubbe
is not neatly presented in
the record. In order for the appellant’s
submission to succeed, however, there must be evidence that the
mirror was tampered
with. At first blush the evidence regarding the
mirror seems to be filled with gaps. A closer look at the sequence of
evidence,
however, indicates preservation of the exhibits.
[44]
Mrs Lubbe instinctively picked up a
mirror covered with a South African flag covering thinking it
belonged to the deceased’s
vehicle and put it inside the boot
of the deceased’s Golf. When Lubbe arrived this item was
placed in his boot with
other items. A little later Lubbe noticed the
odd silver mirror which he then handed to Human as a unit. Human
confirmed in his
statement that he received items that were found on
the scene of the accident from Lubbe on 16 July 2010 which he handed
in at
Parow SAPS 13/1419/2010. It is important to note the exhibit
number SAPS 13/1419/2010 as it is the exhibit containing the mirror
handed by Lubbe to Human. The other exhibit was SAPS 13/1479/2010
containing items which were removed from the BMW vehicle, [CA…..],
by Marais, which included a mounting bracket that normally attaches
the mirror to the left front door of the vehicle. Both of these
exhibits were handed in by Human and Janklaas to the SAPS 13 clerk
Jameson respectively. Jameson, confirmed that he received the
respective exhibits on 16 July 2010 and on 22 July 2010. These
exhibits were kept safe by Jameson until they were collected by
Human
on 06 August 2010. Of crucial importance is Human’s statement
that he collected exhibits which were marked SAPS 13/1419/2010
from
the SAPS 13 clerk, Jameson, as well as what he termed as a ‘mirror
frame’ that was removed from a silver BMW with
registration
number [CA……] by Marais. Jameson also referred to a
metal frame that Human removed from SAPS 13/1479/2010
with forensic
bag number FSE-56046.
[45]
Human confirmed that he ‘broke’
the seal of the forensic bag with serial no: FSE-56046 and removed
exhibit no. 2 from
SAPS 13/1479/2010 and handed the broken sealed bag
and remaining exhibit to Jameson. It appears then that Human took the
mirror
handed in by Lubbe (SAPS 13/1419/2010) and the mirror frame
(bracket) which he removed from SAPS 13/1479/2010 and resealed them
in a forensic bag serial no: FSD-393340. He then drafted a
letter to have the exhibits analysed and took them to Macassar
to be
analysed where they were received and an acknowledgement was filed as
per B22 on 06 August 2010.
[46]
Langa received a sealed evidence bag
with number FSD-393340 from Case Administration of the ballistic
section containing one black
and silver side mirror which she marked
133743/10A and one black mirror frame which she marked 137743/10B on
12 August 2010. The
side mirror and mirror frame showed unique
patterns that indicated they were previously a unit.
[47]
Based on the sequence of evidence
outlined above there appears to be no evidence of tampering with the
mirror received by Human
from the time it was handed in by Lubbe to
its examination by the experts together with the mounting bracket
that was removed from
the BMW by Marais. It is also clear that the
mirror frame referred to in Langa’s affidavit was in fact the
mounting bracket
that was removed by Marais from the BMW. I say this
because Human referred to a mirror frame removed from the BMW in his
statement
exhibit NN, which he collected from the SAP13 clerk
together with the mirror he received from Lubbe prior to taking it
for forensic
analysis. Jameson also stated that Human removed a metal
frame (which was on SAPS 13/1479/2010) and returned exhibit SAP
13/1479/2010.
It seems as though that exhibit bag SAPS 13/1478/2010
contained other items that were removed from the BMW. Human collected
this
‘metal frame’ with the exhibit SAP 13/1419/2010 he
received from Lubbe and re-sealed those in a forensic bag with serial
no. FSD-393340 which were both examined by Langa.
[48]
This analysis clarifies that the
mirror frame that Langa referred to in her statement was the mounting
bracket that was removed
from the BMW by Marais. The confusion
in terminology for the mirror exhibits which has bedevilled this
matter might have
originated from Human who sent these exhibits for
examination.
[49]
Furthermore, those were the same
exhibits that were analysed by Roediger in my view. The only
difference is that when they were
sent to Roediger they were referred
to as one silver mirror cover and one black and grey part of mirror
bracket. Crucially, the
forensic bag depicted on the photos in
Roediger’s report refers to reference type as: SAPS
13/1419/2010 and SAPS 13/1479/
respectively.
[50]
Ultimately, whilst the chain of
evidence was not elegantly presented, a careful analysis of the
evidence shows that the mirror found
on the scene of the crime by Mrs
Lubbe was the same mirror which was analysed initially by Langa and
later by Roediger, together
with the mounting bracket removed from
the BMW motor vehicle belonging to the appellant. These items were
found to once have been
a unit. I do agree, however, that calling
Human and perhaps Langa might have clarified the confusion and made
the evidence much
easier to understand.
[51]
However, even if one puts mirror
evidence to one side, I am of the view that, the remaining evidence
overwhelmingly links the appellant
to the accident in Giel Basson
Avenue. The mirror evidence simply completes the picture and puts the
matter beyond any shadow of
doubt.
[52]
The magistrate was correct in
exercising her discretion to call an expert witness to help her
clarify an issue that was not clear
in her mind regarding Langa’s
evidence. In the first place, the confusion over this aspect began
when the defence sought
at a late stage to withdraw an admission it
appeared to have made regarding the scope of Langa’s evidence.
Furthermore, the
defence indicated that it intended to call an expert
witness to dispute Langa’s evidence but ultimately did not do
so. Such
evidence ultimately clarified the issue. I disagree
therefore with the proposition that the magistrate acted irregularly
and shored
up a weak state case.
[53]
Section 186
of the
Criminal
Procedure Act permits
a court to subpoena a witness, (a) at any stage
of criminal proceedings and (b) to subpoena a witness if the evidence
of such witness
appears to the court essential to the just decision
of the case. A judicial officer is there to see that justice is done.
As it
was put by Curlewis JA in
R v
Hepworth
1928 AD at 277 ‘A
criminal trial is not a game where one side is entitled to claim the
benefit of any omission or mistake
made by the other side, and a
judge’s position in a criminal trial is not merely that of an
umpire to see that the rules
of the game are observed by both sides.
A judge is an administrator of justice, he is not merely a
figurehead, he has not only
to direct and control the proceedings
according to recognised rules but to see that the justice is done.’
[54]
A conviction may well be set aside
if a court calls a witness in circumstances where the record does not
disclose that an offence
has been committed and convicts on the
strength of the evidence of that witness (See Du Toit et al,
Commentary on the
Criminal Procedure Act
at
23-12C). That is however not the case in the present matter. In
this case, the record shows that at the close of the state’s
case various offences had been committed.
[55]
Moreover, even if the magistrate did
not call Roediger as a witness, as I have already outlined, Langa’s
evidence was reasonably
clear when viewed together with other
evidence, especially that which emerged out of the written statements
made by Human and Jameson.
Roediger’s evidence echoed Langa’s
findings at the end of the day.
[56]
As to Roediger not placing his
proper qualifications on record, whilst he did not provide the kind
of detail that is normally given,
he did state that he owned an
analytical laboratory which investigates any type of chemical and
physical analyses. At no stage
during the trial did the defence
indicate that they did not consider him suitably qualified. The
submission that his evidence should
be disregarded on that basis is
without merit.
Paint evidence
[57]
The paint evidence is also
compelling when considered together with other evidence. The paint
samples from the Golf and the BMW
found independently on both
vehicles, were found to be comparable. Van Huyssteen was correct in
conceding that her findings standing
alone could not be conclusive.
Her conclusions added to the body of evidence that the appellant’s
BMW was the vehicle involved
in the fatal collision. Not only
that, the parts where the respective vehicles were damaged increased
the likelihood that
the collision took place between them.
Appellant’s
actions
[58]
The appellant’s actions on 14
July 2010 and the days following are telling. He informed the police
that the accident he was
involved in on Jan Smuts Drive took place at
11h20 on 14 July 2010. However, it was not disputed that the
appellant contacted Pretorius
at 07h30 that morning reporting his
involvement in an accident. How could he have called Pretorius at
07h30 if the accident only
happened at 11h20 that day? The
inescapable conclusion to be drawn from this inconsistency is that
the appellant was not telling
the truth. He attempted to quell the
chances of being caught by arranging for his vehicle to be fixed as
soon as possible and by
giving false information to the insurance
company and to the police.
[59]
The telephone call from Mr Weber to
the investigating officer is critical and it was unchallenged. If the
appellant disputed Mr
Weber’s telephone call and what was told
to Human, he would not have admitted it. Mr Weber gave the name of
the appellant
to Human unsolicited and offered that his client would
co-operate with the police. Up to this stage the police had no
knowledge
of any BMW vehicle standing in a panelbeating shop. A
day after that the appellant and his attorney visited the
investigating
officer and gave a warning statement. The question is
why the appellant would come forward and for what purpose would he
surrender
himself to the police if he was not involved in the
accident that led to the deceased’s death?
[60]
The picture created by the
appellant’s actions, the information contained in the witness
statements as well as the evidence
of the witnesses who testified in
court, cannot be dismissed as a simple co-incidence. The linkages and
similarities between the
accidents reported by the appellant to the
insurance company and the police and that which took place at Giel
Basson Avenue are
too numerous and too striking. The accident the
appellant reported was on the same date as the one in Giel Basson
Avenue, the colour
of the vehicle that sped off in that accident was
reportedly silver as was the appellant’s vehicle; the damage to
that vehicle
must have been on the left hand and the left front side,
which coincides with how the deceased must have been struck by a
vehicle.
When the BMW vehicle was taken for repairs to the panel
beaters, according to Pretorius, the left hand wing mirror was
missing.
Marais confirmed that only the mounting bracket was in place
when he removed it. Damningly, the silver left hand wing mirror of
a
motor vehicle found at the scene of the accident in Giel Basson
Avenue had fracture patterns which indicated that the mirror
and the
mounting bracket removed from the silver BMW belonging to the
appellant were once a unit.
[61]
In the face of all this evidence,
the appellant chose not to testify. Clearly, if the accident which he
reported to the police actually
occurred in the manner he claimed,
nothing stopped him from placing that version before court and
testifying. This version was
not even put to the state witnesses.
Instead there was an attempt to blame his legal representatives for
failing to do so.
[62]
In a case like this, the appellant
could ill afford to leave the evidence of the state witnesses
unanswered. His failure to testify
was bound to strengthen the
state’s case. In this regard see DT Zeffert et al,
The
South African Law of Evidence
(2003) p
127, Lexis Nexis, Butterworths,).
[63]
It was held in
S
v Chabalala
2003 (1) SACR 134
(SCA) at
para 21:
‘…
[t]here
can be no acceptable explanation for him not rising to the challenge.
If he was innocent appellant must have ascertained
his own
whereabouts and activities on 29 May and been able to vouch for his
non-participation ….To have remained silent
in the face of
evidence was damning. He thereby left the prima facie case to speak
for itself. One is bound to conclude that the
totality of the
evidence taken in conjunction with his silence excluded any
reasonable doubt about his guilt.
’
See also the oft
quoted decision of
S v Boesak
[2000] ZACC 25
;
2001 (1) SACR 1
(CC) at para 24.
[64]
In the circumstances, the magistrate
correctly found that in the absence of any other evidence, the only
reasonable inference that
could be drawn from the proven facts was
that it was the appellant’s BMW vehicle which collided with the
deceased’s
Golf and it was driven by the appellant. There was
no evidence that the appellant’s vehicle was driven by anyone
else on
that day. The vehicle was travelling at a high speed and
collided with a vehicle that was being pushed in the yellow lane by
the
deceased and De Villiers, killing the deceased. The Golf vehicle
probably had its hazard lights on at the time of the collision.
Sergeant CP Segolela found in her examination that the filament of
the globe removed from the hazard light on the right hand side
of the
VW Golf indicated that it was functional at the time of the
collision. Cornelissen confirmed that the vehicle stood
in the
yellow lane when he arrived. De Villiers stated that the hazard
lights on the Golf were on at the time of the fatal collision.
The
police also found the vehicle stationary in the yellow lane as
depicted by the photos. According to Constable Van Schalkwyk,
at that
time of the morning, Giel Basson Avenue was well lit, visibility on
the road was clear, traffic flow was quiet and the
road was dry
although it was overcast. It only started to rain later when he
arrived at the scene. The only inference that can
be drawn is that
the appellant drove recklessly and negligently in colliding with the
deceased either in not keeping a proper look-out,
driving too fast,
or both, and that his negligence caused the deceased’s death.
The magistrate was therefore correct in finding
him guilty of
culpable homicide.
[65]
Having been found to be the driver
of the BMW motor vehicle, it follows that the appellant was correctly
found guilty of the other
counts.
[66]
The appellant defeated the ends of
justice by reporting to the police that he was involved in an
accident in Jan Smuts Drive which
was false. He also contravened the
National Road Traffic Act by
failing to stop at the scene of the
accident and act in accordance with the duty placed on him as a
driver of a vehicle which was
involved in an accident on a public
road.
[67]
An issue of whether an element of
prejudice was satisfied on the charge of fraud was raised with the
parties on appeal. For a crime
of fraud to be proven, the following
requirements must be present, namely: (1) unlawfulness; (2)
misrepresentation; (3) prejudice
or potential prejudice; and (4)
intention. (
See Criminal Law
,
CR Synman, Sixth Edition, Lexis Nexis, 2014 at 523).
[68]
Misrepresentation entails a
deception by means of falsehood. X must in other words represent to Y
that a fact or set of facts exist(s)
which in truth do(es) not exist
(See
CR Snyman supra
at 524). It is not disputed that the appellant in this case
misrepresented the facts to Brand by stating that he hit a barrier
when he was involved in an accident, which was not the case.
[69]
A charge of fraud must however be
supported by prejudice but in the present matter the charge sheet did
not indicate precisely what
prejudice was suffered by any party and
no evidence was placed before the court in this regard. It has been
held that mere lying
is not punishable as fraud; harm is punishable
if it brings some sort of harm to another (See
Principles
of Criminal Law
, Jonathan Burchell,
Fourth Edition at p 728).
[70]
In
S v
Kruger and Another
1961 (4) SA 816
(A)
at 828 it was held that ‘[
t
]
he
mere circumstance that the defrauded party might ultimately have
sustained the same loss will not avail the representor, for
the
eventual position of the representee is not necessarily a relevant
consideration.’
The court went
further to state that it was not necessary to prove the actual
prejudice, but it is sufficient to show that the act
was done with
the intent to deceive and in the ordinary course of things was
calculated in the sense of likely to prejudice, some
persons. ‘Likely
to prejudice’, according to
CR
Snyman supra
at 528, does not mean that
there should be a probability of prejudice but only that there should
be a possibility of prejudice.
[71]
Wessels CJ observed in
R
v Dyonta & another
1935 AD 32l
at
57, that ‘[t]he law looks at the matter from the point of view
of the deceiver. If he intended to deceive, it is immaterial
whether
the person to be deceived is actually deceived or whether his
prejudice is only potential.’
[72]
This approach was followed in the
Supreme Court of Appeal decision of
S v
Mngqibisa
2008 (1) SACR 92
(SCA).
The appellant in the
Mngqibisa
case made a false representation to the employee of an insurance
company by stating that he was the driver of an insured vehicle
that
was involved in a collision and later corrected the facts to state
that his wife was the driver. It was argued on behalf of
the
appellant that it made no difference whether the appellant or his
wife was the driver in that they were both designated as
drivers in
terms of the insurance policy and that in the event of the vehicle
being damaged whilst driven by any of them, the insurance
would pay.
The wife in this case was a holder of a learner driver’s
licence. The Court at para 11 dismissed that argument
on the basis
that it foundered ‘
on the simple
fact that a higher excess was payable if the driver of the Uno at the
time of the collision was in
possession
of a learner driver’s only
.’
It was held to be of no consequence that the appellant finally told
the truth.
[73]
Mlambo JA at para 9 quoted with
approval the findings of the court in
R
v Kruse
1946 AD 524
at 533 where the
court held that:
“…
if
the false representation is of such a nature as, in the ordinary
course of things, to be likely to prejudice the complainant,
the
accused cannot successfully contend that the crime of fraud is not
established because the Crown has failed to prove that the
false
representation induced the complainant to part with his property.”
[74]
It is clear from the
Mngqibisa
case above that payment on behalf of an insured of a lower excess
amounted to prejudice to the insurer. Therefore, the lie had
prejudicial consequences.
[75]
In the present case, the intention
to deceive was proved. The appellant misrepresented the facts
regarding how the accident occurred.
The appellant’s
false representation was calculated to prejudice. What insurer, one
might ask, would not want to know that
another vehicle had been
involved in the accident or that someone had been fatally injured? If
nothing else such information would
be material to its risk
assessment of the insured. Even though Brand’s written
statement and the transcript of the phone
call she had with the
appellant made no reference to the terms and conditions of the
insurance policy and the appellant’s
BMW vehicle was
unquestionably damaged, some risk of harm must have been caused by
the appellant’s deception and such harm
was neither fanciful
nor remote.
[76]
Therefore, even though the terms and
conditions of the insurance policy were not placed before the court
in the present matter,
it is reasonable to conclude that had the
appellant told the truth about the incident either his claim might
have been disallowed
by his insurer or, at the very least, his risk
profile would have been affected. The appellant lied to his insurer
because he was
alive to the possibility of these consequences. In
these circumstances, prejudice has been proven.
[77]
In the result, for these reasons,
the appeal against conviction is dismissed and the convictions and
sentences on all counts are
confirmed.
N
P BOQWANA
Judge
of the High Court
I
agree
L
J BOZALEK
Judge
of the High Court