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2015
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[2015] ZAGPJHC 142
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S v Krejcir and Others (SS26/2014) [2015] ZAGPJHC 142 (15 June 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE NO: SS26/2014
DATE: 15 JUNE 2015
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
:In this matter there is a dispute as
to whether or not a particular question can be asked of the witness.
During the questioning of Captain
Ramuhala by accused 1’s counsel, accused 1’s counsel put
to him, that during March
to April 2013 accused 3 had arranged a
meeting between accused 1 and Colonel Ximba. The response of Captain
Ramuhala, was that
he did not know whether or not this had taken
place. It was then put to him that this had in fact happened, and
that during that
period accused 3 had arranged a meeting between
accused and Ximba. The counsel for accused 3 did not put anything to
Captain Ramuhala,
and the matter was left at that during the course
of Captain Ramuhala’s evidence.
Accused 1 came to give evidence and the
state sought to cross examine on the issue of what had been put.
There was a dispute between
counsel for accused 1 and counsel for the
state, as to whether or not this had in fact been put. This resulted
in the question
being put on hold during the course of the cross
examination. Thereafter the issue was not dealt with again and the
evidence of
accused 1 was finalised.
Currently accused 3 is giving evidence.
During the course of accused 3’s evidence, the question was
put by counsel for the
state, as to why his counsel had not put it to
Captain Ramuhala that what had been put to Captain Ramuhala by
counsel for accused
1, was not correct. This was put to the witness
as the witness disputed that he had arranged such a meeting. The
purpose of the
question was to enable a response to be given which
the counsel for the state, hoped would enable him to argue by reason
of inference
that the current statement of the witness was a recent
fabrication.
I stated to counsel for the state that
it appeared to me that it was impermissible for this question to be
asked. Counsel for accused
3 then made submissions that it was
impermissible for the question to be asked. Those submissions hinge
on three primary bases.
The first is that the response of Captain
Ramuhala is not admissible evidence before this court against accused
3. The second
is that it would not have made any difference to his
perspective and his answer to the question to put a different version
to him
(one of the primary reasons why a version is put). The third
is that counsel had in any event believed that it was not his duty
to
put anything to the witness and hence the inference could not be
drawn.
I heard argument from the state and the
state was unable to furnish me with any authority on the matter, save
the general principles
set out in the matter of S v Boesak,
[2000] ZASCA 112
;
2000 (1)
SACR 633
(SCA). In that matter the principle is stated that a
version should be put to a witness and that it should be explicit
insofar
as the evidence which is given by that witness differs from
the evidence which the accused in due course proposes giving. So it
was submitted, absent a version being put, the state is entitled to
assume that the evidence which had been led is correct and
is
entitled then to advance its case and cross examine further witnesses
on that basis.
It appears to me that the correct
starting point is to consider what the value of the evidence given by
the witness, is. Captain
Ramuhala had nothing to say about the
issue. He was not a party to the arrangement of the issue, or in any
way privy to how the
meeting which was dealt with came to be
arranged. This was his evidence. That is the first matter. This
leads to the inevitable
conclusion that whatever is put to him
concerning the meeting, would elicit no further response than that he
did not know.
The second matter to be considered is
whether there is any value to accused 3 putting a version in relation
to the evidence which
is not admissible against him. The Criminal
Procedure Act excludes extra curial statements made by one accused as
evidence against
another accused. It seems to me that what is put by
the counsel of one accused is no more than an extra curial statement
of what
that particular accused might, in due course, say if he is
put into the witness box. What is put does not constitute evidence
against accused 3. This being so, there was no evidence as to who had
arranged a meeting, between whom and when and the fact that
accused
1’s counsel put anything about such a meeting, does not
translate what is put into being evidence, before me.
This being
so, the principles set out in Boesak’s case, which deals with
evidence before the court and the attitude and obligations
of counsel
towards such evidence, is not of application.
There in any event simply was no
admissible evidence before me relating to the meeting, who arranged
it, how it was arranged for
as the witness knew nothing about the
event. Counsel’s statement does not amount to evidence. Hence
there remained no evidence,
notwithstanding what counsel said.
This being so, there was no obligation
which arose on the part of counsel for accused 3, to put anything to
the witness. In my
view, he properly did not put anything to the
witness and was not required to do so. This being so, no inference
can be drawn as
the Prosecutor would hope from an answer to the
question, that by reason of the statement not having been put by
counsel, it was
a recent fabrication. This being so, the question is
irrelevant.
There is a further reason why, in the
particular facts before me, the question should not currently be
allowed. Although it did
not appear at the time that the matter was
originally argued, that counsel had deliberately not done anything,
it being his view
that he was not obliged to do something, it came
out during the argument that this, in fact, was the position of
counsel. This
being so, the inference cannot be drawn that there is
a new version, as there is a break in the chain, namely the
intervention
of counsel who did not put a version.
The state submitted that it was not
proper for me to consider this fact. In my view, it is proper and
relevant as an additional
feature of why the question should not
currently be allowed.
In my view, the question should be
disallowed and I disallow it.
-
Counsel for The State: Adv. L.
Mashiane
Attorneys for Accused 1 and 2: BDK
Attorneys
Counsel for Accused 1 and 2: Adv. A
van den Heerver
Attorneys for Accused 3,4,5 and
6 Spangenberg Attorneys
Counsel for Accused 3,4,5, and
6 Adv. Spangenberg
Date of Hearing: 15 June 2015
Date of Judgment: 15 June 2015