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[2010] ZAWCHC 627
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Mei v S (A10/2010) [2010] ZAWCHC 627 (10 December 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH COURT, CAPE TOWN
Case
No. A10/2010
In
the matter between
WILLEM
MEI
…..................................................................................................
Appellant
and
THE
STATE
…...............................................................................................
Respondent
JUDGMENT
DELIVERED 10 DECEMBER 2010
Engers
AJ
[1]
Appellant appeared in the Oudtshoorn regional court on one charge of
murder and one charge of assault with intent to cause
grievous
bodily harm. He was convicted on the murder charge, and acquitted on
the other charge. He now appeals, with leave of
the court a quo,
against his conviction.
[2]
The events in question took place on 8 December 2007 in the yard of
a shebeen at the home of one Jan Adams in Oudtshoorn,
referred to in
the evidence as "Oom Joel se jaart". These events led to
the death of Julian Avontuur. The post-mortem
report lists the chief
findings as: 1 stab wound on the left side of the back which
penetrated the left lung, haemothorax and
collapse of the left lung,
2 stab wounds into the soft tissue of the back. The contents of the
post-mortem report were admitted
by the appellant's legal
representative.
[3]
The appellant pleaded not guilty. In an explanatory statement, which
was read into the record by his attorney, the appellant
admitted
having stabbed the deceased once, on the right side of his back, 2
cm from the midline. He denied being responsible
for the other two
stab wounds on the deceased, including the fatal one. He stated that
the basis for his defence was necessity.
[4]
The state called three witnesses, all eyewitnesses. The appellant
testified and also called one witness.
[5]
The first state witness, a 56 year old woman named Rose Simmers,
described the events which unfolded in the yard. She arrived
at the
shebeen (between 3 and 4 in the afternoon) and was sitting and
smoking on a long bench in the yard. The deceased arrived
there with
a toddler, bought some beer and sat drinking it on a crate in the
yard. The appellant then arrived.
[6]
The deceased finished drinking his last beer, picked up the toddler
and walked towards the gate of the yard. The appellant
went after
him, and stabbed him three or four times in the back on his upper
body. At this stage the deceased was still carrying
the toddler in
his arms in front of his body. After being stabbed, the deceased
collapsed a short distance outside the gate.
[7]
The second state witness was Christoffel Marenene (also known as
"China"). He was present at the yard that day,
drinking,
and he too gave a version of the events leading to the stabbing.
According to him, he was sitting on the long bench,
and the deceased
arrived and sat next to him, putting the toddler down. The appellant
arrived with Adam Mei, who introduced the
appellant as his (Adam's)
brother. The appellant sat on the other side of
Marenene.
Marenene recalls some sort of argument between the appellant and the
deceased, but wasn't sure exactly what it was about.
Marenene was by
his own admission, very intoxicated, and sat with his head resting
on his hands. He heard a voice make a crude
remark, and when he
lifted his head he saw the appellant take a knife out of his pocket.
The deceased stood up, and grabbed the
toddler and tried to run
av/ay. The appellant ran after him. Marenene saw what looked like
the appellant hitting the deceased
three or four times with the hand
holding the knife.
[8]
It is noteworthy that Simmers did not testify as to any argument
which preceded the stabbing. That is one major point of difference
between the two witnesses. Another is the fact that Marenene
testified that Simmers was not present in the yard at the time when
these events took place.
[9]
The third state witness was Adam Mei, the brother of the appellant.
He testified about a quarrel between the appellant and
the deceased
which had occurred at another shebeen, before they all moved on to
Joel's yard. His version of the events at Joel's
yard was that the
appellant and deceased had continued their quarrel. While Adam was
inside the house at the shebeen, he heard
the appellant shouting
that the deceased wouldn't stop. By the time Adam came into the
yard, the stabbing had already occurred.
He saw the deceased outside
the gate of the yard, with a bloodstain on his back. Some friends of
the deceased, who were in the
street, went to him.
[10]
The appellant testified as to the argument which took place, both
before he got to Joel's yard shebeen, and while he was
there. His
version was that at some stage in the quarrel in Joel's yard, the
deceased produced a knife and stabbed him on the
leg. He then
grabbed the deceased's knife hand, and twisted it behind the
deceased's back. While they were so struggling, the
knife went into
the deceased, inflicting a single stab wound. The appellant then got
hold of the knife and threw it on the ground,
while the deceased
walked to the gate.
[11]
The last witness was Mervyn Weyers, who testified that he went to
Joel's shebeen that afternoon to buy a beer. He saw the
deceased and
the appellant arguing. He heard the appellant say "Jong, kyk
wat doen jy" and he noticed some blood on
the appellant's upper
right leg. He then saw that the appellant had the deceased's arm in
a grip behind the deceased's back.
He saw nothing further because he
left the premises at that point.
[12]
Simmers' version of what she saw is detailed and lucid, and the
magistrate accepted her as a good witness. It was put to
her in
cross-examination that she was not well-disposed towards the
appellant, because of a previous incident involving another
stabbing. She denied this. The latter incident had apparently taken
place many years before, and the suggestion that she would
manufacture evidence against the appellant seems very unlikely. All
in all, this court cannot fault the magistrate's finding
that
Simmers was a reliable witness.
[13]
Notwithstanding Marenene's evidence, it is highly unlikely that Rose
Simmers could have given such a clear and graphic account
of events
without being present. In addition, her presence in the yard was
confirmed by Adam Mei. Accordingly, Marenene was mistaken
in
maintaining that Rose was not present.
[14]
It is not difficult to find an explanation for Marenene's
fallibility. According to his own evidence he was drunk and started
feeling more and more light-headed (duiselig) at about the time that
the appellant and deceased were exchanging words. In
cross-examination
as to how much he had to drink, he said that when
he arrived at the shebeen he had already consumed some alcohol. He
described
his condition as moderately intoxicated. It is not
entirely clear how much alcohol he consumed at the shebeen, but when
he got
up to see what had happened to tie deceased he was one and a
half glasses into the last litre of sweet wine that he had bought.
The fact that he was at one stage compelled to rest his head on his
hands for an unspecified length of time, because he felt
so drunk,
must cast doubt on his ability to observe and recall everything that
was taking place around him. I am of the view
that the magistrate
was correct in approaching Marenene's evidence with considerable
caution.
[15]
Since Simmers and Marenene are the only two witnesses to the
deceased being stabbed more than once, and because I have
reservations about the reliability of Marenene, I would approach
Simmers' evidence as to the stabbing as that of a single witness.
It
is trite law that, although it is certainly competent to convict on
the evidence of a single witness, one must approach such
evidence
with caution.
[16]
There are two points on which Simmers differs from the other
witnesses. The first relates to the time at which these events
took
place. She put it at somewhere between 15h00 and 16h00, whereas the
others put it a couple of hours later. The second is
that Simmers
did not observe any argument or struggle between the appellant and
deceased prior to the stabbing.
[17]
I do no consider the discrepancy as to the time as being material.
From the record, it appears that this matter was postponed
on
numerous occasions. Following these several postponements, it was
only in January 2009, more than a year after the incident,
that the
first witness testified. Further postponements ensued, and the
evidence was concluded only in September 2009. This is
a most
unsatisfactory state of affairs, since it makes it more difficult
for witnesses to recall the events accurately. It is
understandable,
in those circumstances, that memories might be less than perfect.
[18]
It is more difficult to explain why Simmers did not witness any
argument or quarrel between the appellant and the deceased.
Marenene
said under cross-examination about the quarrel: "Hulle het
woorde gehad, maar nie so ernstig nie". It is thus
quite
possible that whatever was happening between the deceased and
appellant might not have attracted her attention at that
point. But
her account of the events immediately before the stabbing and the
stabbing itself, is very clear.
[19]
The magistrate accepted Simmers as a good witness. It was put to her
in cross-examination that she was not well-disposed
towards the
appellant, because of a previous incident involving another
stabbing. She denied this. The latter incident had apparently
taken
place many years before, and the suggestion that she would
manufacture evidence against the appellant seems very unlikely.
[20]
The suggested bias as a result of the prior stabbing incident must
be seen in the light of the version given by Simmers.
Whilst a
possible bias may well cause a witness to manufacture evidence or to
colour one's evidence, this does not seem to be
the case with
Simmers. In the unlikely event that she did carry some bias from the
previous incident, she could easily have tailored
her evidence
implicate the appellant more directly. Instead she comes across as
having given an objective and balanced account
of what she saw.
[21]
What satisfied me that Simmers' evidence should be accepted as
reliable is the fact that it is borne out by the objective
evidence
of the wounds found on the deceased, namely three stab wounds on his
back. These are totally consistent with the description
of the
stabbing by Simmers.
[22]
All in all, this court cannot fault the magistrate's finding that
Simmers was a reliable witness.
[23]
It is, of course, not enough that Simmers' evidence is accepted as
satisfactory. In order to convict the appellant, the magistrate
had
to find that his version of events could not be reasonably possibly
true.
[24]
The main difficulty with the appellant's version is that it does not
and cannot account for there being three stab wounds
on the
deceased's body. If the appellant is to be believed, the deceased
must have been stabbed twice, either before or after
the appellant
stabbed him. It can hardly have been before, because there is no
evidence that he was stabbed (other than by the
appellant) at Joel's
yard. The first time any witness noticed a bloodstain on the
deceased's back was after the appellant had
stabbed him. It is also
highly unlikely that the deceased could have carried on sitting and
drinking if he had already received
a stab wound penetrating his
lung ( this aspect was not properly canvassed because the
post-mortem report was entered as evidence
without calling the
pathologist).
[25]
Nor could the other two stab wounds have been inflicted by someone
else after the appellant had stabbed the deceased. It
was put in
cross-examination to Simmers that when the deceased reached the gate
of the yard, there were people there with whom
the deceased was
fighting. She denied it. That line of cross-examination was clearly
intended to suggest that someone else might
have at that stage
inflicted the two further stab wounds. The evidence that was
subsequently led, however, did not establish
this. Adam Mei's
evidence was that the deceased encountered friends of his, not
enemies, outside the gate of the yard. And the
appellant's evidence
was to the same effect, saying that he saw the deceased chatting to
his friend outside the gate.
[26]
I accordingly conclude that the appellant's version of events cannot
be reasonably possibly true, and that the magistrate
correctly
convicted the appellant of the murder of Julian Avontuur.
[27]
I would dismiss the appeal.
ENGERS
AJ
I
agree
ALLIE J
And
it is so ordered.