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2014
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[2014] ZAGPJHC 342
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S v Krejcir and Others (SS26-2014) [2014] ZAGPJHC 342 (24 October 2014)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: SS26-2014
DATE:
24 OCTOBER 2014
In the matter
between
THE STATE
And
RADOVAN
KREJCIR
.............................................................
Accused
1
DESAI
LUPHONDO
...............................................................
Accused
2
SAMUEL MODISE
MARUPING
............................................
Accused
3
JEF NTHOROANE
GEORGE MACHACHA
.........................
Accused
4
SIBONISO MIYA
GQAMARE NDABASINHLE
...................
Accused
5
LEFU JAN
MOFOKENG
......................................................
Accused
6
J U
D G M E N T
LAMONT J:
Captain Ramuhala was
called as a witness. His evidence was led in a trial within a trial
relating to the admissibility of the statement
made by accused 2.
The Captain is a
competent and compellable witness in terms of Section 192 of the
Criminal Procedure Act No 51 Of 1977 (“CPA”).
There is
no issue in relation thereto.
After he had
commenced giving his evidence he was cross-examined for a period of
time, initially in relation to various matters
concerning the trial
within a trial. During the cross-examination I ruled that he could
be cross-examined in respect of those
issues and other matters
relevant to the main trial.
While the captain
was under cross-examination, the trial was adjourned. It is common
cause that during the adjournment a charge
was laid by accused 1. The
charge (perjury) concerns the fact that there is a difference in what
was said by the witness under
oath in Court and what was said in an
affidavit filed in bail proceedings as well as what was said in an
affidavit filed by him
in relation to this opposition to an
application to produce certain documents which he had been subpoenaed
duces tecum to produce.
At the resumed
hearing the witness indicated that he feared that he would, by way of
continuing to reply to the questions which
were being posed to him in
cross-examination, incriminate himself in respect of the perjury
charge. I afforded him an opportunity
to obtain legal advice, which
he did.
The advice which he
received was that he is entitled to refuse to answer the questions.
I heard argument on that issue from his
legal representative, as well
as the legal representatives of the other counsel in this matter.
The first question
to be decided is whether or not there should be an objection to each
individual question put to him, raised separately,
argued separately
and dealt with separately.
It was apparent from
the questioning which I put to counsel, that all counsel proposed to
continue to cross-examine the witness
to establish that he was a
dishonest witness. It is a well-known feature of cross-examination
that a seemingly innocuous question
is but one link in a long chain
leading to the question which is not innocuous and in which the
proposition which counsel wishes
to make is put.
For this reason, it
is extremely difficult, both as the officer presiding as well as the
witness to, in advance of knowing the length
of the chain and what
the pertinent question is at the end of the chain, determine whether
or not any individual question is in
fact innocuous. To compel a
witness to answer a seemingly innocuous question in these
circumstances is in fact a breach of his
right to refuse to answer.
For this reason I
propose to deal with the matter in its entirety, as if all the
questions were directed to establishing facts which
might incriminate
him in the charge which has been laid.
The witness relies
on the provisions of Section 203 of the CPA. That section reads:
“No witness in
criminal proceedings shall, except as provided by this Act or any
other law, be compelled to answer any question
which he would not on
the 30th of May 196,1 have been compelled to answer by reason that
the answer may expose him to a criminal
charge.”
The right not to
give evidence which results in self-incrimination was considered in
the matter of Magmoed v Janse Van Rensburg
& Others
[1992] ZASCA 208
;
1993 (1) SACR
67.
It was there held that:
“In the sphere
of the law of evidence a privilege may be described as a personal
right to refuse to disclose admissible evidence
....
One such privilege
is that against self-incrimination. In terms thereof a witness may
refuse to answer a question where the answer
may tend to expose him
to a criminal charge ...
The privilege is
that of the witness and generally must be claimed by him. Where the
privilege is claimed, the Court must rule thereon.
Before allowing the
claim of privilege, the Court must be satisfied from the
circumstances of the case and the nature of the evidence
which the
witness is called to give that there is reasonable ground to
apprehend danger to the witness from his being compelled
to
answer.....
The witness should
be given considerable latitude in deciding what is likely to prove an
incriminating reply....[at 104 B-F]”
A useful survey of
the status of this privilege is contained within the matter of Black
v Joffe
2007 (3) SA 171
(CPD), particularly at paragraphs 10 and
following. The rationale is set out within the paragraphs to which I
referred and it
is apparent that the intention of the law is to
provide a witness with an environment in which he can freely deal
with matters
relevant to the case in which he is a witness. To the
extent that he is asked questions in relation to other offences which
might
incriminate him in those offences, these should not be
permitted in Court.
The underlying
unfairness to a witness of allowing incriminating questions is also
apparent from the reasoning set out in State
v Lungile & Another
1999 (2) SACR 597
(SCA) at paragraph 24.
The privilege which
the witness has is not limited to criminal or civil trial
proceedings. See Ferreira v Levin N O & Others
1996 (1) SA 984
(CC) at paragraph 96.
The laying of a
charge has two results in relation to the witness.
1. The witness may
fear that his evidence will incriminate him in the charge.
2. The witness may
be tempted to ignore the truth and modify the answers which he gives
if he is forced to reply so as to produce
a set of facts which
exculpates him.
In consequence the
witness may be perceived wrongly to be unreliable in relation to
other issues due to his reaction set out in
(2) supra.
A witness is
statutorily entitled in the ordinary course to protection from being
forced to incriminate himself. The reason is to
enable the witness to
feel free and give appropriate responses. It is intimidatory to
require a witness to incriminate himself
as he will find himself
caught in a cleft stick comprising the threat of the
consequences of a refusal to answer and the
temptation to modify his
responses.
The laying of a
charge of perjury by accused 1 in respect of a perjury allegedly
committed during the course of the witness evidence
accordingly
impacts on the way that witness will react in the witness box and is
an intimidatory act.
The issue remains
however whether or not the section protects a witness from
incriminating himself in an offence he has committed
while giving
evidence at the trail.
There is every
reason why, in the normal course the rule which is contained within
the Statute should exist and should be enforced
strictly in its
terms. This is not to say that the section must not be interpreted to
mean what it properly does mean.
When a witness gives
evidence in a Court of law, he is naturally exposed to
cross-examination. One of the purposes of examination
is to
establish the inaccuracy of the evidence which the witness is giving.
This function of cross-examination is well-known. It
must have been
apparent to the minds of the legislature at the time that Section 203
was enacted, that a witness in criminal proceedings
could readily be
exposed to making statements (assuming he was being dishonest) which
conflicted with the evidence given during
the trial and also
extra-curially.
It happens every day
in Court that affidavits made by witnesses are produced to them and
that they are asked questions in relation
to what they have said in
the affidavits. It happens that in response to such questioning
those witnesses, who are under oath
in the witness box, claim the
existence of facts which are different to the facts which appear in
the earlier affidavits.
The existence of
such differences could well expose the witness to a criminal charge
as two different statements have been made
under oath by the witness.
No Court of whom I am aware has ever granted a witness a right to
refuse to answer in these circumstances.
The fact that the
witness is exposed to a risk of self-incrimination in the current
circumstances, does not grant him a right of
refusal to answer the
question. If it were so, all witnesses in all cases, could refuse to
answer any questions by reason of the
potential self-incrimination.
This would obviously
result in a failure of the system. Similarly, it would be a simple
matter for an accused who wishes a matter
not to proceed, to lodge a
complaint against a witness by claiming that he is guilty of an
offence and rely on the witness to refuse
to answer further
questions, thereby stalling the further conduct of the trial.
This may appear on
the face of it to be a reduction of the issue to the absurd, it
nonetheless in my view exposes the absurdity
of an interpretation of
the words “expose him to a criminal charge” contained in
Section 203 to mean any and every
charge.
The question to be
answered in the present matter is whether or not those words include
a criminal charge arising out of the criminal
conduct of the witness
(perjury) during his evidence at the trial or whether the words
relate to other criminal charges.
It seems to be that
the words “criminal charge” do not relate to charges
which could follow in consequence of the conduct
of the witness
during his evidence at the hearing.
The previous
affidavits filed in the matter which form the subject matter of the
charge of accused 1, together with the evidence
in the present
hearing of perjury, are sufficiently connected in my view with this
matter and with this witness’ evidence
at this hearing for them
all to form part of his giving of evidence in this hearing.
It is accordingly my
view that the fact that a perjury charge has been laid against the
witness in respect of the evidence which
he has given at this
hearing, does not constitute a criminal charge as contemplated by
Section 203 of the CPA. This being so,
in my view, the witness is
obliged to answer the questions which are put to him notwithstanding
that there is in existence a perjury
charge and that on the face of
it, his answers may incriminate him in such charge.
It is accordingly my
view, the witness being both competent and compellable that he
answers such questions as are put to him in
cross-examination
concerning his evidence in this Court. The refusal to give evidence
further, which has been raised by the witness,
is accordingly
unlawful. The witness will again face questioning in relation to his
conduct in the witness box and is obliged
to answer such questions.
Counsel for The
State : Adv. Mashiane
Counsel for
Accused 1 and 2:Adv. A Van Den Heever
Counsel for
Accused 3, 4, 5, and 6:Adv. Spanenberg
Date of
hearing :23 October 2014
Date of
judgment:24 October 2014.