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[2020] ZAWCHC 88
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Lottering v S (A329/2019) [2020] ZAWCHC 88; 2020 (2) SACR 629 (WCC) (31 August 2020)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
Case
number: A329/2019
Before: Mr Justice Binns-Ward
and
Mr
Acting Justice Hockey
Hearing: Appeal disposed of in terms
s 19(a)
of
the
Superior Courts Act 10 of 2013
.
Judgment:
31 August 2020
In
the matter between:
JACO
LOTTERING
Appellant
and
THE
STATE
Respondent
JUDGMENT
(Delivered
by email to the parties’ legal representatives and release to
SAFLII)
BINNS-WARD
J, (HOCKEY AJ concurring):
[1]
In this matter, the appellant, who was
accused no. 1 in the trial, appeals against his conviction on a
charge of armed robbery.
The offence was allegedly committed
sometime between 05h00 and 05h30 on Sunday, 27 July 2014.
The prescribed minimum
sentence in respect of the offence of which
the appellant was convicted is 15 years’ imprisonment, but the
regional magistrate
found that there were substantial and compelling
circumstances permitting a deviation from the prescribed punishment,
and the appellant
was sentenced to 12 years’ imprisonment.
The appeal, which comes to this court with leave granted by the trial
court,
is also against the sentence. With consent by the
parties’ legal representatives, the appeal was adjudicated on
the
basis of the court’s consideration of the record of the
trial proceedings and the written heads of argument without an oral
hearing, as provided for in
s 19(a)
of the
Superior Courts Act
10 of 2013
.
[2]
Accused no. 2 at the trial (Sergeant
Koikanyang) was a fellow policeman who, it was common cause, had been
on patrol with the appellant
at the relevant time. The
appellant’s co-accused was acquitted because he could not be
identified by the state witnesses
as having been at the scene of the
robbery or as having been one of the two perpetrators of the attack
on the complainant and his
brother in the course of which the robbery
was committed.
[3]
Much of the material evidence was not in
dispute. The validity of the conviction depends on whether the
appellant was reliably
identified as the perpetrator. The
complainant was a single witness as to identifying his attacker.
His evidence was
not given in a vacuum, however. It was
susceptible to evaluation in the context established by the other
evidence adduced
at the trial. That is significant because the
courts traditionally approach evidence on identification with
caution, mindful
of the vulnerability of human powers of observation
to honest mistakenness. It was for that reason that Holmes JA,
in
S v Mthetwa
1972
(3) SA 766
(A) at 768A-C, made the point that it is not enough for
the identifying witness to be honest. The reliability of his
observation
must also be tested. The learned judge of appeal
listed a non-exhaustive range of factors that could be relevant,
depending
on the circumstances of the particular case, such as the
witness’s opportunity for observation, the accused’s
dress,
voice, gait, build, corroboration, ‘and, of course, the
evidence by and on behalf of the accused’. The judge
summed up his remarks by saying ‘
These
factors, or such of them as are applicable in a particular case, are
not individually decisive, but must be weighed one against
the other,
in the light of the totality of the evidence, and the probabilities;
see cases such as
R v Masemang
,
1950 (2) SA 488
(A.D.);
R v
Dladla and Others
,
1962 (1) SA
307
(A.D.) at p. 310C;
S v
Mehlape
,
1963 (2) SA 29
(A.D).
’
[4]
As to the consideration that the primarily
inculpatory evidence against the appellant was that of a single
witness, the applicable
principles are clear. The competence of
conviction on the basis of the satisfactory evidence of a single
witness is expressly
provided for by
s 208
of the
Criminal
Procedure Act 51 of 1977
. Referring to that provision,
Diemont JA held in
S v Sauls
and Others
1981 (3) SA 172
(A) at
180E-G, in a passage that has consistently been endorsed as
definitive on the issue, ‘
There is
no rule of thumb test or formula to apply when it comes to a
consideration of the credibility of a single witness ... .
The trial
Judge will weigh his evidence, will consider its merits and demerits,
and having done so, will decide whether it is trustworthy
and
whether, despite the fact that there are shortcomings or defects or
contradictions in the testimony, he is satisfied that the
truth has
been told.
’
[5]
It is with the aforementioned principles in
view that we have approached the adjudication of this appeal; mindful
also, that an
appellate court should not lightly interfere with a
trial court’s findings on matters of fact and credibility, and
should
intervene only if it is convinced on its own consideration of
the record that they were wrong. In this matter, somewhat
unusually,
we must also consider whether the evidence heard by the
magistrate after the appellant had been convicted and sentenced gave
rise,
in the context of all of the evidence, to a reasonable doubt
whether the appellant was guilty.
[6]
The uncontested evidence of the complainant
was that he had gone to an ATM in the town of Saldanha before 05h00
to draw money to
give to his daughter who was due to travel somewhere
later that day. He was accompanied by his brother. They
went to
the ATM before sunrise because the transport that his
daughter was due to take was scheduled to leave early, and his
attempt to
draw money on the previous day had been unsuccessful
because the payment deposit he had been expecting did not yet reflect
in his
account. The copy of the statement of account by the
complainant’s bank that was put in evidence at the trial bore
out his evidence that he had made two withdrawals one after the
other, and that a total of R2900 had been withdrawn from his account
just before 5 o’clock on the morning in question.
[7]
It was common ground that shortly after the
complainant had made the withdrawals from his bank account, and while
he and his brother
were walking back towards the local township, they
encountered a marked police vehicle. The complainant and his
brother both
testified that the occupants of the police van had
spoken to them and had asked whether they were not aware that there
were persons
in the vicinity who had been stopping people and robbing
them. They also testified that they had asked the policemen if
they
could give them a lift because it had been raining. Their
evidence in those respects was not disputed.
[8]
The appellant and his co-accused admitted
that they had been in the police vehicle, and that they had spoken to
the complainant
and his brother. That there had been mention of
robberies being committed in the vicinity was confirmed in the
appellant’s
pocketbook. The accused also conceded that
they had been asked for a lift by the complainant and his brother.
According
to the state’s version, the appellant’s
co-accused had demanded money in return for agreeing to assist the
complainant
and his brother with transport; whilst the appellant
maintained that the complainant and his companion were informed that
they
could not be given a lift because the police were engaged with
their duties.
[9]
There was also a conflict between the
evidence of the prosecution witnesses and the defence witnesses as to
who had been the driver
of the police vehicle at the time. The
state witnesses testified that accused 2 had been the driver, and
that the appellant
had been seated in the front passenger seat.
The complainant testified that the appellant had emerged from the
vehicle to
speak him, while accused 2 had remained seated behind the
steering wheel. He described how the latter had wound down his
side window to speak to the him when the question of a lift was being
discussed, and that it was from that position that accused
2 had
asked for R20 to give them a lift; and had declined their offer of
R10, which was the only cash in low denominations that
he and his
brother had on them at the time.
[10]
There is no possibility that the state
witnesses might have been confusing the respective identities of the
two policemen at the
place where their conversation was had at the
police van. They identified the appellant as a coloured or
brown person who
was conspicuous by the Springbok jacket that he was
wearing over his police uniform, while accused 2 was identified as a
black
African. These descriptions corresponded to the actual
racial identities of the respective accused, and it was formally
admitted
at the trial that the appellant had been wearing a Springbok
jacket at the relevant time. The context in which the formal
admission was made revealed that if it had not been forthcoming, the
state would have called a certain Captain van Wyk to confirm
what the
appellant had been wearing that morning. The complainant also
testified that the appellant had been wearing spectacles,
which was
not contested.
[11]
The magistrate accepted the state
witnesses’ version of their exchange with the police officers
at the police vehicle, and
there is no basis upon which we can fault
him in that regard. Their evidence reads convincingly on the
record, and it contains
much detail that would be inconsistent with a
mistaken or fabricated version. There is no conceivable reason
why they should
have insisted that the appellant had been a passenger
in the vehicle rather than the driver if that had not been the case.
The identity of the driver was a neutral factor as far as the merits
of their complaint were concerned. What was particularly
striking, however, was that the complainant said that although
accused 2 had been the driver of the vehicle at the time of their
roadside encounter, it was
the appellant
who had been behind the wheel when he next saw the vehicle when it
was driven up to the police station a short time later after
he and
his brother had gone there to report the robbery. The fact that
he noticed that there had been a change in drivers
makes it most
unlikely, in my view, that he was mistaken when he said that accused
2 had been driving the vehicle earlier.
If there had not been a
change of drivers, there would have been nothing for the complainant
to notice and remark upon.
[12]
A further factor that supports the
truthfulness and candour of the state witnesses is the fact that the
complainant admitted that
he had not noticed that there had been a
third person in the police vehicle at the time, but that his brother
had remarked on that
later. It was common ground that the
complainant’s wife had been seated in the rear of the vehicle
at the time.
The complainant’s candid admission that he
had not noticed her is not the sort of evidence that a witness shy of
the truth
or contriving to portray an enhanced impression of his
powers of observation would give. When the complainant was
recalled
to give further evidence in circumstances that I shall
describe presently, he clarified that he had noticed someone sitting
on
the rear seat, but that he had not realised that the person was a
woman until his brother had told him as much later.
[13]
The most significant import of the quite
detailed evidence adduced concerning the roadside exchange between
the state witnesses
and the accused is that it establishes that the
complainant and his brother had an ample opportunity to take in the
appearance
of the accused. The uncontested evidence established
that it was certainly sufficient to qualify them to identify them if
they were to see them again shortly afterwards. In particular,
they were able to differentiate between the two policemen
by their
racial characteristics, their dress and that one of them was
bespectacled. They were also able to point to a saliently
distinguishing feature about the appellant; viz. that he was wearing
a Springbok jacket, by any means something very out of the
ordinary
about a uniform branch police officer on duty.
[14]
It is also significant that the evidence
was to the effect that the complainant had informed the police
details that he was on his
way home after withdrawing money at the
ATM. This evidence was not only unchallenged, but it is also in
accordance with the
inherent probabilities. It very likely in
the circumstances that the police would have enquired of the
complainant and his
brother why they were on the road at that early
hour. The answer they were given would have provided them with
the information
that the two men, or at least one of them, was
carrying a quantity of cash. As they had been asked for a lift,
the policemen
would also know where the men were headed and, with
their local knowledge, would probably be aware of the route that a
pedestrian
would take to reach that destination.
[15]
The uncontested evidence was that when the
complainant and his brother proceeded on their way after their
conversation with the
police officers at the stationary police van,
the police vehicle drove past them twice as they continued to walk
along the road.
[16]
It was after the complainant and his
brother had left the formal roadway and taken a path or passageway
through a bushy area that
they were pounced upon by two men. It
would appear that they were separately targeted by the two men.
The complainant
said he instantly recognised his assailant by the
Springbok jacket he was wearing. He did not have the
opportunity to identify
the second assailant. His brother was
also concerned, understandably, only with the individual who was
attacking him.
He was not able to identify his attacker, but he
did have sufficient opportunity to note that his head was covered
with a balaclava
and that he was wearing police uniform trousers and
boots. The brother’s evidence, which frankly owned up to
his inability
to identify his assailant because of his attacker’s
facial disguise, corroborated the implication in the complainant’s
evidence that the visibility at the time had been sufficient for him
to be able to make out the Springbok jacket. It was
undoubtedly
good enough for him to see the weapon with which his attacker was
threatening him, and there can be little doubt that
the intending
robbers were counting on their victims’ ability to see that
they were armed.
[17]
The evidence clearly established that the
complainant believed that he had identified his assailant as the
appellant because he
and his brother proceeded directly from where
they had been attacked to the police station, where they reported
that they had been
attacked by a policeman whom the complainant would
be able to identify. The fact that the assailant had been
identified as
a policeman when the report was made is borne out by
the immediate summoning of a senior police officer, Captain van Wyk,
to come
to the station to deal with the situation. It is
evident from the appellant’s own evidence (and that of his
wife) that
Captain van Wyk must have arrived at the police station
even before the appellant returned there with the police van after
dropping
off accused 2 at the latter’s house.
[18]
The complainant testified that he
identified the appellant as his assailant to Captain van Wyk and a
certain ‘Metlakhulu’
[1]
at the police station. He said that Van Wyk had then taken the
appellant into an office to speak with him.
[19]
The appellant did not challenge this
evidence, but when it came to his turn to testify he sought to make
much of a contention that
the complainant had failed to do anything
to identify him when he came into the police station, whereas, so the
appellant contended,
if the complainant had been able to do so one
might have expected him to have raised a hue and cry. The
magistrate put to
the appellant at the time that he should have put
his conflicting version to the complainant in cross-examination.
In this
regard he reminded the appellant of the homily delivered at
the beginning of the trial, when the magistrate had explained to the
accused the importance of ensuring that their attorney was properly
instructed to present their case and advised them of how they
should
draw to his attention their wish to tell their attorney anything at
any stage during the course of the trial. It is
evident on the
record that accused no. 2, who was represented by the same attorney
as the appellant, made frequent use of such
opportunity during the
hearing. It is also notable that notwithstanding the
magistrate’s pointed reference to the defence’s
failure
to cross-examine the complainant on that aspect of his evidence, the
appellant did not call either Van Wyk or ‘Metlakhulu’
to
rebut the complainant’s evidence that he had pointed out the
appellant at the police station. It was also not put
to the
complainant or his brother that the appellant’s wife could
contest his claim to have identified the appellant to Van
Wyk and
‘Metlakhulu’ at the police station. (I shall treat
of the evidence of the appellant’s wife, which
was adduced in
unusual circumstances, presently.)
[20]
It was striking that the appellant said
very little about the content of the conversation he had with Captain
van Wyk. All
he disclosed was that Van Wyk had told him that
there had been a report that a robbery had occurred and that it had
allegedly been
perpetrated by police details and that the
complainants had said they would be able to identify the culprits.
It seems most
unlikely that that is all that was said. The most
obvious thing that the police would have asked the complainant and
his
brother was whether they could give any identifying
characteristics of the policemen they claimed to have been assaulted
by.
And it is most improbable if they had put that question,
that the complainant would not have mentioned the Springbok jacket.
It would have been evident to anyone present when the appellant
returned to the police station that he matched that description.
That seems to me the most likely reason why he would have been called
into the office by Van Wyk.
[21]
The appellant suggested that Van Wyk had
actually put the idea of inculpating the appellant into the
complainant’s mind because,
so the appellant testified, Van Wyk
had wished ‘to get rid of him’. The suggestion
appeared to be that Van Wyk
had persuaded the complainant that were
he to identify the appellant the person who had robbed him it would
assist his ability
to obtain compensation for his stolen property
from the state. This proposition, which was also not put to the
complainant,
strikes me as far-fetched.
[22]
The appellant, albeit grudgingly, admitted
to the magistrate that he had not told his attorney about it.
It is most improbable
that he would not have done so if there had
been any truth to it because, in substance, it boiled down to an
assertion that he
had been framed at Van Wyk’s instance.
It is inconceivable that an accused person who believes that he is in
the dock
only because he has been framed would not inform his legal
representative about that. But even if the appellant had reason
for reservations about calling Van Wyk, he gave no reason not to call
‘Metlakhulu’. There was, of course, no
onus on him
to prove his innocence, but his failure to lead apparently available
evidence to rebut the evidence adduced against
him was a factor that
could legitimately be taken into account when the trial court weighed
which version to prefer.
[23]
That then was the evidence upon which the
trial court convicted the appellant. I am unable to find any
misdirection by the
magistrate on the evidence led before him, and
there is no reason for us to differ with his conclusion that it
established beyond
reasonable doubt that the appellant had been the
person who had robbed the complainant of the R2 800 that was
taken from his
wallet when his pockets were rifled as he lay face
down on the ground with a gun held to his head.
[24]
After the appellant was convicted his
attorney sought and was granted a postponement of the hearing to
obtain a probation officer’s
report to be used in evidence in
mitigation of sentence. When the trial resumed, the appellant
was represented by a different
attorney. After the appellant
had been sentenced, his new legal representative presented an
application for leave to appeal
and at the same time applied, in
terms of
s 309B(5)
of the
Criminal Procedure Act, for
leave to
adduce evidence from the appellant’s wife, who had not been
called as a witness during the trial. It appears
that the
prosecution had made the witness available to the defence before the
commencement of the trial,
[2]
but that the appellant’s attorney had chosen not to call her.
[25]
Subsections (5) and (6) of
s 309B
provide as follows:
(5) (a) An application for leave to appeal may be
accompanied by an application to reduce further evidence
(hereinafter referred
to as an application for further evidence)
relating to the conviction, sentence or order in respect of which the
appeal is sought
to be noted.
(b)
An application for
further evidence must be supported by an affidavit stating that-
(i)
further evidence which
would presumably be accepted as true , is available;
(ii)
if accepted the
evidence could reasonably lead to a different decision or order; and
(iii)
there is a reasonably
acceptable explanation for the failure to produce the evidence before
the close of the trial.
(c)
The court granting an
application for further evidence must-
(i)
received that evidence
and further evidence rendered necessary thereby, including evidence
in rebuttal called by the prosecutor
and evidence called by the
court; and
(ii)
record its findings or
views with regard to that evidence, including the cogency and
sufficiency of the evidence, and the demeanour
and credibility of any
witness.
(6) Any evidence received under
subsection (5) shall for the purposes of an appeal be deemed to be
evidence taken or admitted at
the trial in question
.
[26]
I am not aware of any reported judgment in
which the provisions of
s 309B(5)
have been considered,
[3]
but it seems clear that they are intended to avoid, as far as
possible, the disruption of appeal proceedings that sometimes
occurred
when appellants made application to the appellate court for
the admission of new evidence. In many such cases, where the
application was granted, the appellate court would set aside the
conviction sentence and remit the matter to the trial court for
the
hearing of the additional evidence. The provision allows for
the shortcutting of that laborious process.
[27]
The requirements prescribed in
s 309B(5)(b)
essentially replicate those that pertain in any application to a
superior court to receive further evidence for the purpose of
an
appeal. See in the latter regard the commentary on
s 19(b)
and (c) of the
Superior Courts Act in
Van Loggerenberg,
Erasmus,
Superior Court Practice
(Juta) vol 1 at
A2-69 ff; and refer, for example, to the remarks of Holmes JA in one
of the authorities cited there,
S v De
Jager
1965 (2) SA 612
(A), at 613A-D:
‘
This Court can, in a proper
case, hear evidence on appeal; see
R
v Carr
,
1949 (2) SA
693
(AD); but the usual course, if a sufficient case has been made
out, is to set aside the conviction and sentence and send the case
back for the hearing of the further evidence, as was done, for
example, in
R v
Mhlongo and Another
,
1935 AD 133.
However, it is well settled that it is only in an
exceptional case that the Court will adopt either of the foregoing
courses. It
is clearly not in the interests of the administration of
justice that issues of fact, once judicially investigated and
pronounced
upon, should lightly be re-opened and amplified. And there
is always the possibility, such is human frailty, that an accused,
having
seen where the shoe pinches, might tend to shape evidence to
meet the difficulty. Accordingly, this Court has, over a series of
decisions, worked out certain basic requirements. They have not
always been formulated in the same words, but their tenor throughout
has been to emphasise the Court's reluctance to re-open a trial. They
may be summarised as follows:
(a) There should be some reasonably sufficient
explanation, based on allegations which may be true, why the evidence
which it is
sought to lead was not led at the trial.
(b) There should be a prima facie likelihood of the
truth of the evidence.
(c) The evidence should be materially relevant to the
outcome of the trial.
See
R v de Beer
,
1949 (3) SA 740
(AD) at p. 748;
R v Weimers and Others
,
1960 (3) SA 508
(AD) at pp. 514 - 5;
R
v Madikane
,
1960 (4) SA 776
(AD) at p. 780;
R v Nkala
,
1964 (1) SA 493
(AD); and
S v Gert Stynder
, (1 October, 1964).
Non-fulfilment of any one of these requirements would
ordinarily be fatal to the application, but every case must be
decided on
its particular merits, and there may be rare instances
where, for some special reason, the Court will be more disposed to
grant
the relief; see
R v de Beer
, supra at p. 748. Such a
case was
S v Nkala
, supra, where the accused's explanation was
not such as would ordinarily be sufficient but it was accepted, not
without some hesitation,
in the special circumstance of that case.’
[28]
In
R v Carr
supra, at p. 699, it was acknowledged (per Greenberg JA) that the
considerations that would guide a court in respect of the admission
of additional evidence when a case has gone on appeal in a civil
matter might be not necessarily be the same in a criminal case.
The learned judge of appeal proceeded ‘
Although
a criminal procedure partakes largely of the quality of litigation,
the element of investigation in the interests of justice
is by no
means absent. (Cf. Rex v Hepworth
(1928 AD 265
at p. 277). But
while it would be inadvisable to attempt even to outline the kinds of
circumstances that the court might regard
as so exceptional as to
warrant the admission of further evidence in a criminal appeal, it
must be emphasized that the inadequate
presentation of the defence
case at the trial will only in the rarest instances be remediable by
the adoption of further evidence
at the appeal stage. However serious
the consequences may be to the party concerned of a refusal to permit
such evidence to be
led the due administration of justice would be
greatly prejudiced if such permission were lightly granted
’.
[29]
The observation that inadequate
presentation of the litigant’s case at trial will only in the
rarest instances be remediable
by the adduction of further evidence
at the appeal stage has been reiterated by the appeal court on many
occasions. A recent
instance was in
De
Aguiar v Real People Housing (Pty) Ltd
2011 (1) SA 16
(SCA) at para 11.
[30]
The interests of finality in litigation,
irrespective of whether its character is civil or criminal, is a
weighty consideration.
It is therefore important, in my view,
that magistrates who are faced with applications in terms of
s 309B(5)
of the
Criminal Procedure Act are
mindful that the
applications are brought at what might properly be termed ‘the
appeal stage’, notwithstanding that
they are brought to the
trial court. This is because they are brought after the trial
court has discharged its functions
in respect of the conviction and
sentencing of the accused and when it is beyond the magistrate’s
powers to revisit those
determinations. The applications should
therefore be adjudicated in accordance with the principles formulated
in the long
line of jurisprudence dealing with applications to adduce
additional evidence on appeal. The jurisprudence emphasises the
courts’ reluctance to reopen litigation, underscores the
premium placed on finality, and speaks to the sparing use of the
power to permit additional evidence to be adduced. Such
applications should therefore not be granted if there has been only
token compliance with the requirements of
s 309B(5)(b).
[31]
In the current matter the appellant
explained the failure to adduce his wife’s evidence at the
trial in the following terms
in his supporting affidavit:
‘
5. I hereby apply to the above
Honourable Court for leave to adduce the evidence of a vital and
material witness, namely Myran Odette
Lottering, who was not called
to testify during the trial phase of the case, same statement is
attached “MOL1”
6. The aforesaid witness had made the statement to the
investigating officer and the State regarding the event I am
convicted of.
Same statement was made available to my erstwhile
attorneys by the State, namely Mr Smith.
7. I humbly submit that the further evidence would have
the tendency which would be presumably accepted as true and is
available
to give viva voce evidence (sic).
8. I humbly submit that if the evidence is accepted, the
evidence could reasonably lead the honorable (sic) court to a
different
decision.
9. The evidence was not produced at the close of the
trial due to the fact that I trusted and verily believed at all
relevant times
that my attorney was well trained in the legal field
and knew whether it was necessary to produce the evidence of the
mentioned
witness or not.
10. I submit that I mentioned to my erstwhile attorney
that the said witness was willing and available to testify on my
defence.
I was advised that evidence would not be necessary to prove
my innocence on the charge.
11. In retrospect I see it was a material oversight as
the said witness evidence (sic) is material to show that I am not
guilty
of the offence convicted of (sic).
12. I humbly pray to the honorable (sic) court to grant
the order as per prayers in the application (sic) in the
interests
of justice.’
[32]
In my judgment, the application did not
make out a proper case for further evidence to be led at the appeal
stage of the case.
It did not adequately explain why the
evidence had not been led in the trial. It gave no
corroborating detail concerning
the circumstances in which a decision
was allegedly made not to call his wife as a witness, in
circumstances in which the importance
of it would have been
abundantly apparent even to a layman, and certainly to a policeman of
16 years’ experience. The
jurisprudence referred to above
illustrates that a clear and convincing case must be made out before
the courts will be persuaded
to allow further evidence on appeal when
the reason for not having adduced it at trial is said to be the
incompetence of the litigant’s
legal representative. It
is trite that absent proven incompetence on the part of the legal
representative, a litigant is
bound by decisions taken in his or her
presence by counsel as to the conduct of a trial; see e.g.
S
v Okah
[2018] ZACC 3
(23 February
2018); 2018 (1) SACR 492
(CC) at para 70.
[33]
In
De Villiers
v The State & another
[2016] ZASCA
38
(24 March 2016), Majiedt JA (as he then was) made the following
observations (at para 19) that are especially pertinent to the
current matter:
It is axiomatic
that an accused person’s constitutional right to representation
by a legal practitioner would be rendered
meaningless by incompetent
representation or, as is alleged in this case, a complete failure to
execute the accused’s mandate
and instead compelling the
accused to act against his or her will in a criminal trial.
It
is equally well established that a legal representative never assumes
total control of a case, to the complete exclusion of the
accused. An
accused person always retains a measure of control over his or her
case and, to that end, furnishes the legal representatives
with
instructions. As Van Blerk [A]JA expressed, it in a separate
concurring judgment, in
R
v Matonsi
:
‘. . . die klient dra nie volkome seggenskap oor sy saak
onherroeplik aan sy advokaat oor nie’.
While
the legal representative assumes control over the conduct of the
case, that control is always confined to the parameters of
the
client’s instructions. The other side of the coin is that, in
the event of an irresolvable conflict between the execution
of a
client’s mandate and the legal representative’s control
of the case, the legal representative must withdraw or
the client
must terminate his or her mandate where such an impasse arises. An
accused person cannot simply remain supine until
after
conviction.’(Footnotes omitted.)
(The learned judge
of appeal supported his remarks with reference to
R v Matonsi
1958 (2) SA 450
(A) at 457E-F and 458A-B and
S v Louw
[1990]
ZASCA 43
;
1990 (3) SA 116
(A) at 124G-H.)
It was
not good enough for the appellant to have claimed, without
elaboration, that he trusted in the allegedly given advice of
his
attorney, in circumstances in which it should have been obvious to
him that such advice, if it was in fact given, was palpably
bad.
The content of his supporting affidavit could hardly have been more
superficial in purporting to comply with the requirements
of
s 309B(5)(b).
[34]
There was, moreover, no confirmatory
affidavit by the appellant’s trial attorney. Nor was
there any evidence before
the magistrate as to the circumstances in
which that attorney’s mandate had been terminated. It was
also not apparent
that the attorney had been made aware of the
serious allegations made against him by the appellant. That was
wholly unacceptable
in a situation such as that presented by the
appellant’s application in terms of
s 309B(5).
[35]
An accused person making such allegations
about his legal representative’s conduct must be deemed, at
least
pro tanto
,
to have waived his attorney- client privilege; cf.
S
v Tandwa and Others
[2007] ZASCA 34
(28
March
2007); 2008 (1) SACR 613
(SCA), at para 19-20.
[4]
See also
S v Mponda
[2004] 4 All SA 229
(C),
2007 (2) SACR 245
(C), at para 41-42, in
which the court, having had regard to comparative jurisprudence in
England and Australia, directed that
if the appellant in that matter
intended to pursue his complaint of incompetent legal representation
in support of his appeal he
should submit an affidavit waiving his
privilege in respect of attorney-client communications in the trial
court and setting out
the grounds upon which he alleged that the
attorney had been incompetent. It was also directed that the
attorney should be
given a copy of the affidavit and the opportunity
to respond to it. The appellate panel (of which I was a member)
also indicated
that the attendance of the attorney whose conduct was
subject to criticism would be required when any argument about his
alleged
incompetence was addressed to the court.
[5]
[36]
I believe that a closer examination of the
points of correspondence between the relevant facts in
S
v Tandwa
and those in respect of
s 309B(5)
application in the current matter would be useful for
the purposes of the guidance of magistrates faced with such
applications.
[37]
The appellant in
Tandwa
’s
case sought to ascribe his failure to have testified in his own
defence in the trial court to the incompetent advice of
his legal
representative. He made the following averments in support of
the proposition:
‘
When
this matter was proceeding I didn’t elect to remain silent, I
did want to speak but I was advised not to speak. I was
advised by my
attorney saying that he knows what he says because he is an attorney,
because he knows the law. I did as he told
me thinking that he knew
what he was saying.’
The
legal representative made an affidavit roundly denying the
appellant’s allegations.
[38]
Addressing the resultant dispute of fact
that arose on the affidavits, Cameron JA, having acknowledged that
oral evidence might
be necessary in some cases to determine where the
truth lay, proceeded as follows (at para 23 -24):
23.
...
[the necessity] will arise only where the accused’s allegations
raise a real possibility that there was incompetence or
that bad
advice was given or that misconduct occurred. In the present case the
accused’s allegations do not in our view pass
the minimum
threshold. They are so weak, contradictory and inherently improbable
that we consider they must be rejected on affidavit
without further
inquiry. We say this for the following reasons.
(a) The accused was not an
unsophisticated or illiterate person. On the contrary, he was a
well-educated man who had completed his
schooling at St John’s
College in Mthatha before starting employment with the bank in 1984.
At the time of the robbery, he
had had more than 14 years’
service, and occupied a responsible position as the branch’s
senior treasury custodian.
During his evidence in mitigation he
appeared articulate and proficient. This does not mean that he could
not have been bullied,
misled or misadvised: but it does bear on how
likely it was that this happened.
(b) The accused gave evidence and
was cross-examined in a bail application not long after his arrest,
which led to his being granted
bail. He was thus aware of his right
to testify, and indeed of the importance of exercising it. This does
not mean that he may
not have been incompetently persuaded not to
give evidence at the criminal trial, or unjustly thwarted in a
determination to do
so, but again it bears on the likelihood of that
happening.
(c) The accused’s complaint
against his advocate was serious. It was not only that his counsel
had overridden his wish and
a prior agreement that he would testify,
but that counsel had failed to inform him that an inference could be
drawn against him
should he fail to testify and thus that counsel had
‘misled’ him about the law. Despite the magnitude of
these infractions,
and their momentous consequences, the accused made
no mention of them on his first post-conviction court appearance on
10 July.
It seems to us improbable that if these claims had been
true he would not have raised them at this, the first available
opportunity.
(d) Likewise, when he terminated
the services of his counsel at the next court appearance, before
testifying in mitigation, the
accused did not explain his reasons for
wanting ‘to talk on my own’, despite having an
opportunity to do so. This renders
his grave claims implausible.
(e) What is more, the accused
presented his complaint in conflicting terms: what he said in court
and in his affidavit were materially
different. During his evidence
in mitigation, he claimed only that though he had wanted to testify,
he was ‘advised not to
speak’, and had followed this
advice, trusting his lawyer. He made no mention of a prior agreement
that he would testify,
no mention of being prevented from speaking,
and no mention of being misled by errant advice. The first time these
latter claims
arose was in the affidavit attached to his application
for leave to appeal, after sentence was passed. The discrepancy casts
further
doubt on their veracity and points instead to their
inauthenticity.
24.
In
short, we find it inherently improbable that a well-educated accused
with experience of testifying in previous proceedings would
not
either insist on giving effect to a previous agreement to testify, or
complain immediately and in precise terms, at the first
public
opportunity, about having been unjustly thwarted in his wish to do
so.
[39]
In the current
matter too, the appellant’s averments on affidavit were bald,
weak and unconvincing. It was inherently
most improbable that a
person with his years of service in the police force would have
meekly accepted advice from his attorney
not to call a witness who
was, according to him, able and willing to give evidence that would
rebut the complainant’s identification
of him as the robber and
who would support his claim that the complainant had not identified
him as the culprit when he came to
the police station at the end of
his shift. He had at an earlier stage of the trial given a
dishonest and evasive response
when asked by the magistrate whether
he had told his attorney about the allegation that Captain van Wyk
had instructed the complainant
to identify him by his Springbok
jacket when testifying at the internal disciplinary enquiry. At
that stage the appellant
had initially tried to meet the question by
saying that he had told his attorney about it ‘indirectly’.
It was
only when he was pressed on how one could tell someone
something ‘indirectly’ that he grudgingly conceded that
he had
not told his attorney about the allegation.
[40]
At the very
least, the magistrate should not have granted the application without
requiring the appellant to supplement his supporting
affidavit and
make it available to his erstwhile attorney for a response.
[41]
It is too late
now, however, to undo what was done. The application was
granted and additional evidence was consequently adduced,
to which we
are bound, by reason of
s 309B(6)
of the
Criminal Procedure Act,
to
have regard as if it had been led in the trial. We cannot
revisit the lower court’s decision to permit the evidence
to be
led. I have dealt with the issue of the application in terms of
s 309B(5)
at some length because, as the magistrate observed at
the time, it is a novel procedure in the magistrate’s court –
certainly one that I have never before encountered in my judicial
appellate experience – and therefore a matter in which
some
practical guidance from an appellate court might be helpful.
[42]
Although the
application was directed at procuring permission to lead only the
evidence of the appellant’s wife, in the end
the evidence of a
cleaner at the Saldanha police station who had acted as interpreter
at a related internal disciplinary enquiry
into the appellant and his
co-accused’s conduct was also led. In addition, the
prosecutor was permitted to recall the
complainant. The whole
process caused the proceedings in the magistrate’s court to
drag on for more than a year after
the appellant had been sentenced.
It is quite apparent from the record of the further evidence that was
adduced that no-one
involved - the magistrate, the new defence
attorney or the prosecutor - had a clear idea of the bounds of the
ambit of the additional
evidence that was allowed. The new
defence attorney at times seemed to try to use the opportunity to
re-run the trial.
[43]
The exercise
demonstrated the importance, when such applications are allowed, that
the ambit of the additional evidence be clearly
delineated in the
court’s order. A clear delineation will have the effect
of similarly circumscribing the nature of
any rebutting evidence or
evidence called by the court as contemplated in
s 309B(5)(c)(i).
[44]
The
appellant’s wife confirmed what was common ground, namely that
she and the appellant and the latter’s co-accused
were
patrolling in a double cab police vehicle on the night in question.
She confirmed that they had encountered the complainant
and his
brother on the road. Her evidence was that at one stage of the
shift, at a time before the roadside encounter with
the complainant,
she had dropped off her husband and the other policeman to do some
investigations on foot. During the time
that they were doing
that she had returned to the police station and then gone back to
collect her colleagues later. She
testified that it was when
she and her husband were dropping Sergeant Koikanyang at his house at
the end of their shift that Sergeant
Koikanyang received a telephone
call from someone to tell him that a report had been received at the
police station of a robbery
allegedly committed by a police officer.
Her evidence concerning the telephone call was consistent with the
evidence that
the complainant had given that after he had made the
report at the police station the police telephoned to call in the
police that
he and his brother had reported. He said (through
the interpreter) ‘
...nadat
ons die insident gerapporteer het, het hulle gebel en hulle se
goedere gedoen om hulle te kry
’.
[6]
[45]
Mrs Lottering,
who subsequently resigned from the police, reportedly in
dissatisfaction with the lack of support her husband had
received,
said she had returned to the police station with her husband and that
she had seen the complainant and his brother in
the charge office (or
‘the community service centre’ as it is called in modern
police parlance). This was inconsistent
with the unchallenged
evidence of the complainant that when the vehicle had returned to the
police station after he had made the
report, the appellant had been
driving it, and that he had been alone. One would have thought,
especially with the aforementioned
homily from the magistrate fresh
in his mind, that the appellant would have caused his attorney to
challenge the evidence that
he had returned to the station alone if
that had not been the case. The complainant in fact twice made
the point that the
appellant was alone when he returned to the police
station. More especially would one have expected the appellant
to have
that evidence challenged, considering Mrs Lottering’s
evidence that she had - at the time that evidence was being given -
been waiting outside in the expectation of being called as a witness.
[46]
It must be
said that Mrs Lottering had stated in the affidavit she deposed to,
apparently before Captain van Wyk, on the afternoon
of 27 July
2014, that she had returned to the police station with the
appellant. It is unlikely in my view that she
would have
fabricated that evidence. This is particularly so because she
was probably aware when she made the affidavit that
Captain van Wyk
had been present there at the time. The circumstances in which
she came into the police station should still
have been explored with
the complainant because the truth and reliability of his evidence
that he saw the appellant returning alone
to the police station was
not necessarily inconsistent with Mrs Lottering’s presence
there that morning. The complainant
would not have recognised
Mrs Lottering because he had not been in a position to even make out
her gender when she had been sitting
at the rear of the police
vehicle shortly before the robbery occurred. He would therefore
have had no reason to distinguish
her from any other police officer
working at the police station when she was there later in the
morning. He would also have
no reason to associate her with the
appellant unless they came into the police station together, which
his evidence suggested could
not have been the case. Had he
been questioned on the point, he might even have explained that by
‘alone’ he
had meant that the appellant had not been
accompanied by Sergeant Koikanyang.
[47]
Mrs Lottering
testified that her husband was called into an office to speak with
Captain van Wyk. She contended that if the
complainant had
recognised her husband as his assailant, he would have pointed him
out when they came into the police station.
Just as her husband
had done, she asserted that it was remarkable that he had not done
so. Nobody canvased with the witness
the complainant’s
testimony that he had confirmed the identity of the appellant as his
assailant to Captain van Wyk and police
officer ‘Metlakhulu’.
Mrs Lottering did mention in passing that Constable ‘Metlakhulu’
had told her
husband that Captain van Wyk wished to see him in office
43. Her evidence in this regard afforded support to the
complainant’s
testimony that he had spoken to a policeman with
that name. It, however, contradicted the evidence of the
appellant that
he and Captain van Wyk met each other in the open
office and initially conversed with each other there within sight and
earshot
of the complainant before moving to a nearby office. In
her sworn statement the witness described her arrival back at the
police station with the appellant in the following terms:
Ek en Sgt
Lottering is na die GDS (Gemeenskap Dienssentrum) waar die twee (2)
swart manspersone op die bankie in die GDS (Gemeenskap
Dienssentrum)
sit. Sgt Lottering het in die teenwoordigheid van die twee (2)
onbekende swart manspersone aan Cst Mehlomakhulo
gevra wat die
problem is, waarna hy aan Sgt Lottering gesê het om na
kamer nr. 43* te gaan. Ek is na ons misdaad
voorkoming
eenheid se kantoor te kamer nr. 7.
[7]
* The number 43 appears to have been inserted
in a different hand and with a different pen to the rest of the body
of the affidavit.
[48]
Mrs
Lottering’s evidence followed the content of her sworn
statement closely. Her memory of matters not dealt with in
the
statement was less impressive. She was, for example, unable to
remember why she had not testified in her husband’s
defence at
the subsequently held internal disciplinary enquiry. The
proposition was not put to her, but an evident reason
for her not to
have wanted to be involved in the proceedings is that the big
question, when her two patrolling colleagues were
being charged with
misconduct, would obviously have been what
her
role in the events had been. That would also have been the case
when the appellant was facing the charge in court with Sergeant
Koikanyang. She may well have been emboldened to make herself
available after Koikanyang’s acquittal. In my view,
her
failure to be able explain why she had not testified at the
disciplinary enquiry was more likely ascribable to evasiveness
than
lack of recall.
[49]
She said that
she had been sitting in a car in a parking lot outside the court
during her husband’s trial ready to be called
as a witness if
required. It was not explored with her why she would have
waited in the car rather than in the court building
outside the
courtroom, where she would have been more readily available if
called, and where, as one knows from the common practice,
it is more
usual for persons expecting to be called as witnesses to wait.
I think it most unlikely that Mrs Lottering would
have waited at
court if there had not been a prior discussion with her husband’s
attorney that she would be called as a witness.
On the other
hand, if there had been such a discussion it is all the more unlikely
that the appellant’s case would have been
closed without
calling her without at least a pause for discussion on the matter
between the appellant and his attorney.
[50]
The record
shows no such pause; not even the slightest hesitancy. The
transcript at the close of the appellant’s evidence
reads as
follows:
HOF: Goed, dankie sersant [dws die
appellant], u kan afstaan.
HOF: Is daar enige getuies vir
beskuldigde 1?
MNR SMITH: Ekskuus, Edelagbare?
HOF: Enige getuies vir beskuldigde
1?
MNR SMITH: Nee, Edelagbare.
HOF: Is dit beskuldigde 1 se saak?
MNR SMITH: Dit is korrek,
Edelagbare.
SAAK VIR
BESKULDIGDE 1
[8]
The attorney then proceeded immediately, and
advisedly, to close accused 2’s case without leading any
evidence.
[51]
This begs the
question as to when the alleged exchange with his attorney, described
in paragraph 10 of the appellant’s
supporting affidavit in
the application in terms of
s 309B(5)
, could have occurred?
It could only have been
before
the appellant testified because his evidence at the trial was
completed in a single sitting without any adjournment. That
being the case, the advice that Mrs Lottering would not be called as
a witness must have been given at an early stage of the trial,
or
even before it commenced, because there was also not a break between
the closure of the state’s case and the commencement
of the
appellant’s oral testimony. Mrs Lottering’s
evidence that she was sitting in a car outside the court waiting
to
see if she would be called as a witness, rather than outside the
courtroom as might ordinarily have been expected, was therefore
not
only unusual, it was also impossible to reconcile with the
inescapable import of the appellant’s affidavit that a decision
had already been made that she would
not
be called. I am driven to conclude that they were probably both
being dishonest. In my view it is likely that Mrs Lottering
did
not testify earlier because of the obvious risk of exposure
concerning her own role in the events.
[52]
In the
circumstances the magistrate’s scepticism about the role of Mrs
Lottering, although it was not articulated in the way
that I have
done, was justified. She also plainly had an interest in
obtaining her husband’s acquittal.
[53]
I think that
in the context of the magistrate’s finding that the complainant
was an honest and straightforward witness –
a finding amply
borne out by the record – he was justified in his stated view
that the evidence of Mrs Lottering, even if
it had been led during
the trial, would not have altered his decision that the appellant’s
guilt was established. I
say this not only because of
demonstrable indications that Mrs Lottering’s evidence had been
ineptly tailored to support
her husband’s explanation of his
failure to have called her to give evidence during his case, but more
pertinently because
the effect of the totality of the evidence made
the accuracy and dependability of the complainant’s
identification of the
appellant as his assailant overwhelmingly
convincing. It was indisputable that the appellant had been
wearing a Springbok
jacket and armed with a handgun at the material
time. It was established that he was in the vicinity of the
robbery very
shortly before it occurred. What were the chances
of there having been another person in that locality at more or less
the
same time also wearing a Springbok jacket and armed with a
handgun and in the company of another male at least partially clothed
in police uniform? The odds against his innocence are just too
overwhelming. I am in no doubt that he was correctly
convicted
and that the appeal against conviction must fail.
[54]
For
completeness, I record that I agree with the magistrate that the
testimony of William Molelekwa, the police station cleaner
who acted
as interpreter at the appellant’s internal disciplinary hearing
in 2015 contributed nothing of substance to the
body of evidence.
He said that he had overheard the complainant telling his brother
that Captain van Wyk had stressed that
he should be certain to point
out in his evidence to the disciplinary tribunal that the coloured
policeman who had been wearing
the Springbok jacket had been his
assailant. The evidence was disputed, but on any approach it
would be difficult to attach
any significance to it in the context of
the complainant having already, long before the disciplinary
proceedings, identified his
assailant in those terms when he reported
the matter to the police immediately after the incident and
subsequently again pointed
out the appellant at an identification
parade held in August 2014.
[55]
As mentioned,
the complainant was also recalled to give further evidence.
Suffice it to say that nothing in his further testimony
materially
added to or detracted from his evidence in the trial.
[56]
Turning to the
appeal against sentence. It is trite that the determination of
an appropriate sentence is within the discretion
of the trial court.
An appellate court cannot rightly interfere with the sentence imposed
unless it appears that the trial
court has materially misdirected
itself in the exercise of its discretion.
[57]
In the current
matter the conviction attracted a prescribed minimum sentence of
15 years’ imprisonment. As mentioned,
the magistrate
found that there were substantial and compelling circumstances that
justified the imposition of a less onerous sentence.
It has
been held that the determination of whether substantial and
compelling circumstances are present does not entail the exercise
of
a discretion, certainly not in the true or narrow sense of the
concept; see e.g.
S
v GK
2013
(2) SACR 505
(WCC), at para 5-7 and
S
v Tafeni
[2015] ZAWCHC 150
;
2016 (2) SACR 720
(WCC) (16 October 2015) at para
4-9. In my judgment, the appellant can count himself fortunate
that the trial court found
good reason to depart from the prescribed
sentence. My own assessment is that the commission of the crime
of armed robbery
by an on-duty policeman is an extremely serious
matter, if anything, deserving of an aggravated sentence rather than
one less onerous
than the prescribed minimum. No good reason
has been shown in the circumstances why we should intervene in the
appellant’s
favour to lighten further a sentence that very
arguably errs too far on the side of leniency. The appeal
against sentence
will therefore also be dismissed.
[58]
In the result,
the following order is made:
The appeal against conviction and sentence is
dismissed.
A.G. BINNS-WARD
Judge of the High Court
S. HOCKEY
Acting
Judge of the High Court
LEGAL
REPRESENTATIVES
Appellant’s
counsel:
C.M. van der Merwe
Appellant’s
attorneys:
Geldenhuys Jonker Inc
Langebaan
M. Briers Inc
Cape Town
Respondent’s
counsel:
N. Ajam
Office of the Director of Public Prosecutions
Cape Town
[1]
‘
Metlakhulu’ seems to be a
misrendering of the name of one the police officers on duty at the
police station at the time.
The name is probably Mehlomakulu,
but I shall use the spelling of the name that appears in the record.
[2]
In terms of
s 195(1)
of the
Criminal
Procedure Act, the
appellant’s wife was a competent, but not
compellable, witness for the prosecution on the charge that he
faced.
[3]
The provision was originally introduced into the
Act as
s 309B(4)
by the Criminal Procedure Amendment Act 76 of
1997, with effect from 28 May 1999, and then reintroduced with its
current numbering
when
s 309B
was substituted in terms of the
Criminal Procedure Amendment Act 42 of 2003
consequent upon the
declaration of constitutional invalidity in
S
v Steyn
[2000] ZACC 24
(29 November
2000); 2001 (1) SACR 16(CC).
[4]
In
S v Tandwa
,
Cameron JA postulated the development by the courts of a mechanism
to determine, when necessary in the context of a factual
dispute
between the litigant and his or her erstwhile legal representative,
which of them is telling the truth; see para 22.
[5]
In the event, the directions given in
Mponda
were not complied with, and the appeal was disposed of without any
regard being had to the arguments initially advanced that
the
fairness of the appellant’s trial had been vitiated by his
legal representative’s alleged incompetence.
Odhiambo
v Regional Magistrate, Stellenbosch and Another
[2019] ZAWCHC 109
(27 August
2019); 2020 (1) SACR 266
(WCC) is
another case in which it was claimed that the allegedly incompetent
legal representative blamed for the applicant’s
allegedly
unfair conviction could not be found. The court’s
scepticism about the conscientiousness of the efforts
to trace him
was noted in footnote 6.
[6]
‘
After we had reported the incident, they
phoned them and did their things to get hold of them’.
(My translation.)
[7]
‘
Sgt Lottering and I went to the CSC
(Community Service Centre) where the two (2) black males were
sitting on the bench in the
CSC (Community Service Centre).
Sgt Lottering, in the presence of the two (2) unknown black males,
asked Cst Mehlomakhulo
what the problem was, at which he told Sgt
Lottering to go to room 43. I proceeded to our crime
prevention unit’s
office in room 7.’ (My translation.)
[8]
‘
Court: Very well, thank you sergeant [i.e.
the appellant], you may stand down.
Court:
Will there be any witnesses for accused 1?
Mr
Smith: Pardon, Your Worship?
Court:
Any witnesses for accused 1?
Mr
Smith: No, Your Worship.
Court:
Is that accused 1’s case?
Mr
Smith: That is correct, Your Worship
THE
CASE FOR ACCUSED
1’.
(My
translation.)