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[2017] ZAGPJHC 204
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Siboniso and Others v S (SS163/2015) [2017] ZAGPJHC 204 (23 March 2017)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: SS163/2015
Not reportable
Not of interest to other judges
Revised.
In the matter between:
SIBONISO, MIYA AND FOUR
OTHERS
Applicants/Accused
and
THE STATE
JUDGMENT
MSIMEKI, J:
INTRODUCTION
[1] The trial, in this matter, commenced on 8 March 2017. The State
called Mr Luybomir Borislavov Grigorov as its first witness.
Mr
Grigorov was accused 5 in the matter.
[2] On 15 March 2017, while Mr Grigorov was still giving his evidence
in chief, Mr Marais brought an application that the disclosure
of the
remainder of Mr Grigorov’s statement be disclosed to the
defence. The application was based on the fact that what
Mr Grigorov
had testified about up to that moment, according to Mr Marais, for
accused 2, did not form part of Mr Grigorov’s
statement that
the State had provided the defence with.
[3] Mr Gcaba, for the State, enquired from Mr Marais if the issue
could be argued by the parties in the presence of Mr Grigorov.
Mr
Marais’s reply was that he did not mind. This, according to
him, because Mr Grigorov had well been coached.
[4] Irrelevant evidence, according to Mr Marais, had been tendered up
to the time he stood up to bring the application on behalf
of accused
2. The statement furnished to them by the State, according to him,
inter alia
, related to the Heidelberg case. Mr Marais’s
concern was that up to that time, they had not heard a word relating
to what
was furnished to them. If the evidence led up to that stage,
according to him, was relevant, then they needed to see where the
statement was from.
[5] At this stage Mr Gcaba requested the Court to allow Mr Grigorov
to leave the Court so that the issue could properly be attended
to in
his absence. The Court obliged and Mr Grigorov left the witness stand
and waited outside.
[6] Mr Guarneri, for accused 1, supported Mr Marais’s
application. Mr Guarneri submitted that there were instances in the
witness’s evidence, where his client’s name was mentioned
but that they had no idea as to how they met about the van
and the
fitting of the blue lights. This, according to him, could not be
regarded as a fair trial as it made a mockery of our judicial
system.
He, however, submitted that the witness could testify but he would
require adequate time to consult with accused 1, failing
which that
would be trial by ambush. He specifically placed it on record that a
fair trial consisted of the accused’s right
to challenge and
adduce evidence. He submitted that his client’s right to
challenge the witness’s evidence was severely
infringed by the
State’s failure to give them Mr Grigorov’s full
statement.
[7] Mr Marais referred to back in the days when the accused was only
entitled to very limited information. The accused these days,
according to him, was entitled to all the statements. Whatever was
recorded somewhere the accused were entitled to.
[8] Mr Nkuna in his argument stated that the witness was not expected
to rehearse. The nine pages that he had written while noting
the
witness’s evidence did not contain what the witness’s
statement contained. He supported the submissions advanced
by Mr
Marais and Mr Guarneri.
[9] Mr Van Wyk’s submission was that the witness, perhaps, had
not expanded on everything in his statement which was disclosed.
The
submission is correct. It often happens that the evidence goes beyond
what the statement contains. This is normal. The witness
may not
disclose everything in the statement. Courts from time to time have
been informed that the statement constitutes a summary
of what the
witness saw or knew. Surely, the policeman who takes the statement
will decide how he will take the statement. The
policeman, in writing
down the statement, may decide to omit certain things. This happens
daily.
[10] Mr Van Wyk submitted that the State did not supplement the
disclosed statement with the relevant information. He, however,
regarded the evidence as relevant and that the State saw it in that
light. This did not support Mr Marais’s submission that
irrelevant evidence had been tendered by the State.
[11] Mr Van Wyk asked why the State did not provide them with the
relevant evidence as soon as same became available. Mr Van Wyk
was
quick to answer himself when he said that the information might have
come to the attention of the State during the consultation
which Mr
Gcaba had with Mr Grigorov.
[12] Mr Van Wyk submitted that it was possible that the information
or evidence he was referring to could be forming part of the
statement they did not receive. This is highly speculative. I find
nothing wrong with the State asking the witness to explain the
relationship between himself and accused 4. There would be nothing
wrong with the request that the witness explain where and how
the two
met. Asking the witness to explain how each accused related to
accused 4, in my view, does not warrant an order directing
the State
to disclose what the Court said the State does not have to disclose.
[13] Mr Van Wyk submitted that the State had reminded the witness
about the white Ford Ranger. It appeared that the State, according
to
Mr Van Wyk, had put the answer in the witness’s mouth. The
Court directed that the relevant tape be listened to. This
was done
and Mr Van Wyk then asked for the Courts pardon for stating that the
State had used the word “
bakkie
”. The question had
been:
“Did accused 4 give accused 1any other motor vehicle
other than the GTI and the BMW?”
The question was not even
leading. One would have expected Mr Van Wyk to object to the question
if same was leading. This, Mr Van
Wyk did not do.
[14] Mr Van Wyk then submitted that the question indicated that the
State had knowledge of the other motor vehicle. I fail to see
how the
question would result in an unfair trial.
[15] Mr Guarneri informed the Court about the numbering of the
statements and how the witness’s statement dated 9 January
2015
was numbered. He did not know if that was a result of a typographical
error.
[16] Mr Marais informed the Court that A79 in the investigation diary
related to Lucky Mokoena. He stated that there was an entry
made on
16 February 2017-C30 stating that the charges were withdrawn against
accused 5 and that his statement that was attached
was marked A92.
The defence, according to him, did not have A92. Mr Gcaba gave a
plausible explanation for this when he responded.
I shall revert to
this later.
[17] Mr Van Wyk submitted that the State needed to place them in a
position where they would be able to prepare for trial. They,
according to him, were receiving one curve ball after another. He
supported Mr Marais’s application that the required information
be supplied by the State failing which this would be a trial by
ambush.
[18] Mr Gcaba requested Mr Marais to explain what he, Mr Marais, had
been asking for. Mr Marais explained that he was moving an
application, which he could move at any stage, that the Court revisit
its refusal to order the State to furnish Mr Grigorov’s
remaining part of the main statement. I shall deal with the response
and address shortly.
[19] Mr Nkuna asked how they would consult and prepare for trial
without the required information. At this stage accused 2 raised
his
hand seeking the attention of Mr Marais. Mr Marais informed the Court
that page 1 of the disclosed statement of Mr Grigorov,
according to
the accsed, dealt with the Sandton case. This, in my view, is neither
here nor there.
[20] Mr Guarneri and Mr Marais were concerned about the fact that
there appeared to be inconsistencies between the investigation
diary
and the contents of the docket. Mr Gcaba dealt with the confusion in
his response and address which now follow.
[21] He bemoaned the fact that the defence Counsel were quick to
raise aspects in Court which could very easily be dealt with by
the
parties outside Court. In case there were misunderstandings, he
proceeded, the defence needed to contact the State for immediate
assistance. He gave as an example the issue of the confusion between
the contents of the docket and the investigation diary regarding
the
numbering. He explained that he actually had wanted to explain how
the confusion had come about but the Court was told about
this even
before he could explain to the parties.
[22] Mr Gcaba explained that he and the Investigating Officer agreed
on how best the original docket could be preserved. He opened
his own
file and placed the statements therein. He came with his own way of
numbering the documents. A79 that the defence complained
about was in
his own hand writing. This was to enable him to find the statements
in his file fast and with much ease. He made his
own notes, for
instance. This was to enable him to identify the case that he
intended dealing with.
[23] He explained that he sourced the original docket before and
during the lunch hour. The defence Counsel, during the adjournment,
were shown the original docket. They were invited to check the
original docket and statements against the investigation diary.
The
original statement did not have the A79 that the defence complained
about. He complained that Mr Marais left them while he
was doing the
explaining. Mr Guarneri and Mr Nkuna, according to Mr Gcaba, remained
behind to listen to the explanation. He managed
to show them that
there was a correlation between the investigation diary and the
statement which he, in his handwriting, had marked
A79.
[24] The statement he marked A79 was filed in the docket when Mr
Grigorov became a State witness. The statement in truth and fact,
according to Mr Gcaba, had to be A92. He then changed A79 to A92 so
that the statement be in line with what the docket contained.
The
decision to make Mr Grigorov a State witness had not yet been made
and the statement, according to Mr Gcaba, could not be in
the docket.
The original statement, according to him, had no A79. He explained
that this is the explanation which he had wanted
to give to the
defence outside Court. I, indeed, find the explanation plausible.
This explanation, according to him, could not
be given to Mr Marais
who left before he could get it.
[25] Mr Marais then promised to take the issue up with the person who
made the entry in the SAP5 which is the investigation diary.
This, in
my view, was the step in the right direction and was commendable.
[26] Mr Marais then advised the Court that he had difficulty with the
fact that there was approximately a two year gap between
entry C10 in
the SAP5 dated 18 June 2014 and entry C11 dated 10 May 2016. Most
entries, according to him, consisted of statements
made in 2015 which
then, according to him, meant that the entries, for two years, were
missing. This, in my view, is neither here
nor there.
[27] Mr Gcaba submitted that it had become routine for the defence to
bring applications to the Court on matters that the Court
had already
adjudicated upon. For instance, he submitted, the Court had ruled on
the issue which the defence wanted revisited.
The submission, is
indeed, correct. Mr Gcaba submitted that nothing had in fact changed
to warrant an order that the issue be revisited.
[28] The submission that it is clear that the State is in possession
of other statements or notes relating to what the witness
testified
about is not very helpful either. That the witness testified about
things not disclosed in the statement, in my view,
does not advance
the defence submission.
[29] In
S v Bruiners en ʼn Ander 1998 (2) SASV 432 (SOKPA) at
437g-438a
the Court said:
“
Ek is van mening dat
ten einde ʼn Staatsgetuie te diskrediteer sover dit sy
getuieverklaring betref, dit steeds ʼn vereiste
is dat daar ʼn
wesenlike afwyking deur die getuie van sy getuieverklaring moet wees
alvorens ʼn negatiewe afleiding gemaak
kan word. Nie-wesenlike
afwykings in ʼn getuieverklaring sal nie noodwendig afbreuk doen
aan die gehalte van ʼn Staatsgetuie
se getuienis as ʼn geheel
nie.
Die doel van
ʼn polisieverklaring is om besonderhede van ʼn misdaad te
bekom sodat daar besluit kan word of die beskuldige
vervolg moet
word. Die getuieverklaring is nie om die getuie se getuienis in die
hof vooruit te loop nie. Dit is vergesog om van
ʼn getuie te
verwag om in sy getuieverklaring reeds presies dieselfde weergawe te
verskaf as wat hy in die ope hof gaan getuig
.
Sien in dié opsig die uitspraak van Cloete R in Shabalala v
Attorney-General, Transvall and Another; Gumede and Others
v
Attorney-General, Transvaal 1995 (1) SA 608 (T) 1995 (1) SASV 88) op
625F-626A (SA) en 106b-g (SACR).
(my emphasis).
[30] In
Gumede v Attorney-General, Transvaal
1995 (1) SA 608
(TPD)
at 625F-626A
, Cloete J said:
“
The proposal that the
furnishing to an accused of copies of the statements of witnesses be
prescribed as part of the procedure was
considered by the Commission
but rejected for several reasons.
Statements of witnesses are
often taken down by inexperienced non-white and other police
officials, or with the aid of an inexperienced
interpreter, and
mostly under difficult circumstances, and often at a stage upon which
the alleged charge is still undetermined
.’
(The affidavits filed by the
respondents show that this is still the position.)
‘
The result is that
reliance cannot always be placed on the accuracy and completeness
thereof. They are not intended to serve as
official documents at
court proceedings, but are taken down in the course and part of the
police investigation into an alleged
offence, and include everything
that may possibly contribute to the identification of the offender,
and thus often contain allegations
which are irrelevant and not
admissible as evidence. In R v Steyn
1954 (1) SA 324
(A) at 335,
Greenberg JA drew attention to the difference between evidence given
at a preparatory examination and statements made
by witnesses to the
police in connection with the investigation of a case, and added:
“
(T)here is a serious
possibility that statements made to the police, which are made in
entirely different circumstances, may be
far from constituting this
accurate representation and through inaccuracies may be a target for
cross-examination which, instead
of revealing the truth, may obscure
it
.”’
These considerations (if not
all of the language used to express them) apply with equal force
today. The Attorney-General says in
his affidavit that: ‘
Die
oorgrote meerderheid van getuieverklarings word deur onervare polisie
beamptes geneem en oorgetolk. Die polisiebeamptes is nie
opgeleide
tolke nie. Die verklarings is in baie gevalle onvolledig. Hierdie
situasie gee noodwendig aanleiding tot beuselagtige
en
tydverkwistende kruisverhoor en stel die betrokke getuies in ʼn
besonder netelige posisie sou die verklarings sonder meer
in alle
gevalle blootgelê word’
.”
(my emphasis).
[31] Indeed,
“…the
purpose of an affidavit was to obtain the details of an offence, so
that it could be decided whether a prosecution
should be instituted
against the accused. It was not the purpose of such an affidavit to
anticipate the witness’s evidence
in court, and it was absurd
to expect of a witness to furnish precisely the same account in his
statement as he would in his evidence
in open court
”
.
(my emphasis). (
See:
S v Bruiners en ʼn Ander (
supra
)
at 434i-j
).
[32] Mr Gcaba submitted that a witness cannot be expected to
regurgitate what is contained in the statement. This is what our
case
law reveals.
[33] The evidence thus far, according to Mr Gcaba, deals with how the
accused and the witness came to know each other. It is, as
it were,
according to him, the introduction to what happened when they met.
Apart from this, the statement and the
viva voce
evidence in
Court, according to Mr Gcaba, will not be word for word. The
submission is correct and supported by case law. Mr Gcaba
further
submitted that consultations bring clarity to certain aspects in
statements which may not be very obvious or easy to follow
and
understand. These, in my view, are issues which need to be taken up
with the witness concerned.
[34] Policemen who take down statements quite often do not write
everything the witnesses tell them. Witnesses do from time to
time,
during consultations, expand on or expatiate what they have said in
their statements. It is Mr Gcaba’s submission that
in such
instances, it indeed, would be derisory to expect the State each time
a consultation revealed something new to it to keep
on getting fresh
statements from the witnesses to be forwarded to the defence. This
would, in my view, amount to introducing strange
procedures to the
already accepted and existing procedure.
[35] Mr Gcaba, correctly in my view, submitted that the accuseds’
right to challenge the witness’s evidence and to
give evidence
remained intact. This is, indeed so, because the witness is still
giving evidence in the witness box. The accused
have a right to
challenge the evidence through their Counsel, cross-examining the
witness as much as they want. They have their
right to put their
versions to the witness who is available to answer their questions.
The
Criminal Procedure Act 51 of 1977
(
“the CPA”
)
also makes provision for submissions to be made later in the case
regarding the evidence of whatever witness who will testify
in this
case.
[36] As I said in the previous paragraph, the defence has a right to
take on a witness on issues that it is felt have not been
dealt with
or properly dealt with.
[37] Mr Marais explained his earlier submission to the effect that
irrelevant evidence was led by the State. He indicated that
it was
indeed relevant to testify about how the witness and the accused came
to know each other but that they were not supposed
to hear that in
Court for the first time. I do not believe that this submission has
merit. This aspect has been dealt with above.
The accused have every
right to challenge evidence by cross-examining the witness. The
witness cannot be expected to say every
conceivable thing in the
statement. I again, have alluded to this already.
[38] The submission that the only remedy which will assist and
protect the accused is that the Court orders the State to discover
the full statement. If regard is had to what I said above, it then
becomes clear that the submission lacks merit.
[39] Mr Guarneri, in his submission, felt that the content of the
statement that had been made available to them needed to be read
into
the record. Not only is this, at this stage, impermissible it is also
undesirable. The Court has to adjudicate the matter
free from aspects
which should not be made known to the Court unless the timing is
right. There was also, in my view, no need for
this.
[40] It is important to mention that Mr Nkuna, for accused 3,
confirmed that Mr Gcaba, during the lunch adjournment, had explained
to them how the confusion referred to above had arisen. He found no
discrepancies in Mr Gcaba’s explanation. Save for insignificant
errors regarding A79 and A70, Mr Nkuna informed the Court that the
information in the docket corresponded with the entry in the
SAP5.
Regarding the other aspects, Mr Nkuna informed the Court that he was
in full agreement with Mr Marais’s submission
and that the
accused would be experiencing and going through a trial by ambush
unless the Court ordered full disclosure of the
remaining part of Mr
Grigorov’s statement together with any other statements which
the State has in its possession. “
Any other statement”
does not seem to mean anything because it does not identify a
statement. The court has ruled on the disclosure of the remaining
part of the statement. Nothing warranting an order directing the
State to so disclose the statement has, in my view, been demonstrated
on behalf of the accused. This application, in my view, should fail.
ORDER
[41]
I make the following order:
The application is dismissed
.
_______________
M. W. MSIMEKI
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
Counsel for the 1
st
Applicant/Accused: Advocate E.
Guarneri
Counsel for the 2
nd
Applicant/Accused: Advocate J. P.
Marais
Counsel for the 3
rd
Applicant/Accused: Advocate: L. S.
Nkuna
Counsel for the 4
th
Applicant/Accused: Advocate R. Van Wyk
Counsel for the State: Advocate L. Gcaba
Date of Hearing: 14 March 2017
Date of Judgment: 23 March 2017