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[2014] ZASCA 74
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Davids v S (461/13) [2014] ZASCA 74; 2015 (6) SA 310 (SCA) (29 May 2014)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case
No: 461/13
Not
Reportable
In
the matter between:
SELWYN
DAVIDS
............................................................................................................
APPELLANT
and
THE
STATE
....................................................................................................................
RESPONDENT
Neutral citation:
Davids v The State
(461/13)
[2014] ZASCA 74
(29 May 2014)
Coram:
Ponnan and Shongwe JJA, Hancke, Van Zyl
and Mocumie AJJA
Heard:
21 May 2014
Delivered:
29 May 2014
Summary:
Evidence ─ sufficiency of ─
State relied on the evidence of a co-accused implicating the
appellant ─ both the
co-accused and the appellant
unsatisfactory witnesses ─ absence of corroboration and version
contradicted in material respects
by another witness applying the
cautionary rule, State has not proved its case beyond a reasonable
doubt.
ORDER
On appeal from:
Western Cape High Court, Cape
Town (Steyn and Goliath JJ sitting as court of appeal)
(1) The appeal succeeds.
(2)
The order of the court below is set aside and in its stead is
substituted the following;
‘
(a) The appeal is upheld;
(b) The convictions and sentences are set aside.’
JUDGMENT
Hancke AJA (Ponnan, Shongwe JJA, Van Zyl and Mocumie
AJJA concurring):
[1]
The appellant, being accused 3 in the Regional Court, was convicted
on one charge each of murder and robbery with aggravating
circumstances and sentenced to an effective term of imprisonment of
25 years. He appealed against his conviction to the Western
Cape High
Court. Although his appeal was unsuccessful, leave was granted to
appeal to this court against his conviction.
[2]
As will appear later in this judgment, the appellant’s
conviction was largely, if not exclusively, based on the evidence
of
his co-accused, accused 1. In his reasons for convicting him, the
magistrate stated the following:
‘
As regards accused 3, his position is more or
less the same as that of accused 2. He is also incriminated by
accused 1 and it is
further alleged by accused 1, evidence of which I
do not have reason to doubt, that the motor vehicle was kept at Mr
Davids’
place in the garage where accused 2 happened to be
residing . . . I do not have any reason to disbelieve accused 1’s
evidence
that accused 3, Mr Davids was also involved in the robbery,
he was present when the robbery took place. According to accused 1 he
assisted accused 1 to push the car while accused 2 was inside as they
approached the victims and I have looked at his defence.
His defence
is simply a bad denial and he cannot even tell where he was on that
day, according to his evidence, he is not sure
of his whereabouts on
the night in question.
While he is unsure about his whereabouts accused 1 is
certain about his whereabouts and he says he was present at
Strandfontein
and that he took part in the robbery and I cannot
reject the version given by accused 1 in this respect as well and I
have to accept
that accused 3 was part of the three people who robbed
the deceased. I do not have any reason to, or rather there is no
acceptable
reason advanced as to why the three, or the two of them
were singled out by accused 1 and why accused 1 did not decide on
incriminating
strangers that he did not know, which would have been,
you know, simple, I was forced by unknown people to go and rob, that
would
have been a different story, but in this case accused 2 and 3
wants the court to accept that a person that they have no problem
with, a friend, has decided out of the blue to incriminate them and I
find that there is sufficient grounds here to reject that
view and
there is sufficient grounds to accept the evidence of accused 1, who
I believe has told the truth, except where he decides
not to get
involved himself, particularly in the main and obviously the most
crucial murder and robbery, so I find, or rather find
that the
evidence is proved beyond reasonable doubt that
ACCUSED 3 WAS
ALSO INVOLVED
. . . .’
[3]
The evidence reveals that the deceased, the subject of the first
charge, Mario Meyer, and some friends drove on the night of
30 March
2007 in his Toyota motor vehicle to a parking lot along Baden Powel
Drive in the Muizenberg Beach area. After a while
another vehicle
drove into the same parking lot. Two men alighted from the vehicle
and began pushing it in their direction. Then
all of a sudden the
latter two approached the deceased’s vehicle. A scuffle ensued
when they tried to grab the vehicle’s
keys from the deceased.
The deceased and his friends were ordered out of the vehicle and
robbed of their personal belongings. During
the ensuing struggle
between them the deceased was fatally stabbed. The two assailants got
into the deceased’s vehicle and
drove off with it. No
identification parade was ever held.
[4]
The State called two eyewitnesses, Cherylene Philander and Rozena
Pallas. Ms Pallas identified accused 1. Neither identified
the
appellant. As far as the number of attackers is concerned, the
magistrate found that it was clear from the evidence that three
persons were involved. According to him the witnesses:
‘
. . .were certain that all three people were
involved.’
[5]
This finding is not supported by the evidence. In her evidence Ms
Philander only referred to two people being involved. According
to
her, the two persons were at the scene and there was an argument
between them and the deceased. One person asked for a screwdriver
and
she noticed another person outside the vehicle in which she was a
passenger. She could not see the faces of those two persons
due to
the fact that it was dark.
[6]
Ms Pallas initially also referred to two persons. Only in
cross-examination did she refer to a third person who was ‘in
their own vehicle’.
[7]
In this regard the magistrate clearly erred, because his finding is
not consistent with the evidence. On the State’s case
it had
thus not been established that three people were involved in the
commission of the crimes.
[8]
The magistrate also stated that the appellant’s position was
‘more or less the same as that of accused 2’.
Apart from
the evidence of accused 1, the State relied on reliable and direct
circumstantial evidence implicating accused 2 in
the commission of
the crimes.
[9]
Counsel for the State sought to place some reliance on a written
statement made by accused 1 to a magistrate, in which he implicated
accused 2 and the appellant. In this regard it is important to note
what was stated by Navsa and Ponnan JJA in
Litako & others v S
[584/2013] ZASCA 54 (16 April 2014) para 67:
‘
It has been suggested by commentators that [the
statutory hearsay provision] has sufficient safeguards to ensure the
preservation
of fair trial rights, more particularly, that [it]
permits a court to admit hearsay evidence only if it “is of the
opinion
that such evidence should be admitted in the interests of
justice”. Considering the rationale at common law for excluding
the use of extra-curial admissions by one accused against another, it
appears to us that the interests of justice is best served
by not
invoking the Act for that purpose. Having regard to what is set out
above, we are compelled to conclude that our system
of criminal
justice underpinned by constitutional values and principles which
have, as their objective, a fair trial for accused
persons, demands
that we hold, [the statutory provision] notwithstanding, that the
extra-curial
admission of one accused does not constitute evidence
against a coaccused and is therefore not admissible against such
co-accused
.’ (My emphasis.)
[10]
As far as accused 1’s evidence is concerned, Counsel for the
State conceded that accused 1 was an unreliable witness.
Even the
magistrate, justifiably stated on two occasions in his judgment that
accused 1 was ‘very economical with the truth’
and that
‘he didn’t tell the whole truth’.
[11]
It is common cause that accused 1 was an accomplice. Regarding the
application of the cautionary rule, which finds application
to his
evidence, Holmes JA stated the following in
S v Hlapezula &
others
1965 (4) SA 439
(A) at 440D-G:
‘
It is well settled that the testimony of an
accomplice requires particular scrutiny because of the cumulative
effect of the following
factors. First, he is a self-confessed
criminal. Second, various considerations may lead him falsely to
implicate the accused,
for example, a desire to shield a culprit or,
particularly where he has not been sentenced, the hope of clemency.
Third, by reason
of his inside knowledge, he has a deceptive facility
for convincing description ─ his only fiction being the
substitution
of the accused for the culprit. Accordingly, even where
sec. 257 of the Code has been satisfied, there has grown up
a
cautionary rule of practice
requiring
(a)
recognition by
the trial Court of the foregoing dangers, and
(b)
the
safeguard of some factor reducing the risk of a wrong conviction,
such as corroboration implicating the accused
in the commission
of the offence, or the absence of gainsaying evidence from him, or
his mendacity as a witness, or the implication
by the accomplice of
someone near and dear to him . . . Satisfaction of the cautionary
rule does not necessarily warrant a conviction,
for the ultimate
requirement is proof beyond reasonable doubt, and this depends upon
an appraisal of all the evidence and the degree
of the safeguard
aforementioned.’ (My emphasis.)
See also
S v Hlongwa
1991 (1) SACR 583
(A) at
588.
[12]
In view of the unreliability of the evidence of accused 1, the
question is whether there is any
corroboration
for his version
in relation to the involvement of the appellant. According to accused
1, the stolen Toyota motor vehicle of the
deceased was taken to a
garage on the appellant’s property where it was stripped.
However, the mechanic, Mr Cameron Fortuin,
who accused 1 claimed was
present at the appellant’s home, testified that the said
vehicle was brought to him. He also testified
that accused 1 brought
the vehicle to him due to the fact that there was something
mechanically wrong with it. It was said that
it had had ‘a
rough ride’. It therefore appears that accused 1’s
evidence regarding the presence of the stolen
vehicle in the
appellant’s garage is contradicted by Mr Fortuin, who was a
State witness.
[13]
It also appears that accused 2, who was correctly convicted on the
two charges , moved into the appellant’s house prior
to the
incident under consideration. The State relies on the fact that the
phone of Ms Pallas was found in an outbuilding, described
as a Wendy
House, which was on the appellant’s property. The Wendy House
was however occupied by accused 2 and his wife.
[14]
According to accused 1’s version, the appellant was carrying a
knife while accused 2 was armed with a firearm. His evidence
in this
regard is as follows:
‘
Selwyn (appellant) het gestoei met hom,
Selwyn
het ‘n mes op hom gehad
en Lionel (accused 2) het die
vuurwapen in sy hand gehad en
dit is toe dat hulle die drywer
gesteek het
.’ (My emphasis.)
According
to the medical evidence the death of the deceased was caused by a
‘stab wound to the chest’. On the evidence
of accused 1,
the inference is therefore irresistible that it must have been the
appellant who stabbed the deceased.
[15]
However, in this regard the evidence of Mr Cameron Fortuin is
important. He testified that accused 1 admitted to him that he
stabbed the deceased. His evidence is as follows:
‘
Hy het langs my gesit. Toe ry ons om die blok,
net wat ek stop toe is Allistair (accused 1) al uit, toe klim
Allistair uit. Wat
ek kyk waar om die kar af te
switch
en toe
staan die polisie langs my. Maar voor dit het (onduidelik) Allistair
waar kry jy die kar, toe
hy
het net
vir my gesê ek
het die jong in die kar vrek gesteek
en wat ek die kar, wat ek
kyk om die kar af te
switch
toe is die polisie langs my.’
(My emphasis.)
It is
therefore clear that the evidence of accused 1 is irreconcilable with
the evidence of Fortuin in this regard. Moreover, one
of the dangers
of the uncritical receipt of an accomplice’s evidence, namely
the substitution of the appellant for the real
perpetrator (in this
instance himself if Fortuin is to be believed) looms large in this
case.
[16]
As far as the appellant’s version is concerned, it is clear
that he was similarly an unsatisfactory witness. In order
to explain
why he left his home, the appellant, for example, testified that the
day after this incident he went to Touwsrivier
where he stayed for
two months. It eventually turned out to have been eight months. The
high court, evaluating his credibility,
stated that the ‘appellant’s
version is so ridiculous it borders on the preposterous’. But
even if his version
were to be rejected, as the magistrate appears to
have done, that could hardly assist the State’s case, given the
inadequacy
of its own witnesses.
[17]
In convicting Accused 1 the magistrate appears to have rejected his
version as being false in material respects. And yet the
magistrate
appears to have relied on the evidence of Accused 1 in convicting the
appellant. That occurred in circumstances not
only where there was an
absence of corroboration for accused 1’s version of the
involvement of the appellant in the commission
of the offences but
also where his version is contradicted in material respects by the
other evidence relied upon by the State.
Apart from the fact that
there may well be a strong suspicion against the appellant, the
evidence does not establish his guilt
beyond a reasonable doubt.
[18]
Accordingly the appeal succeeds and the convictions and sentences are
set aside.
________________________
S P B HANCKE
ACTING JUDGE OF APPEAL
APPEARANCES:
For the Appellant: G D Smith
Instructed by:
Francois Potgieter Attorneys, Cape Town
Lovius Block Attorneys, Bloemfontein
For the Respondent: N Ajam
Instructed by:
The Director of Public Prosecutions, Cape Town
The Director of Public Prosecutions, Bloemfontein