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[2024] ZAFSHC 18
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S v van der Westhuizen and Others (72/2016) [2024] ZAFSHC 18; 2024 (1) SACR 525 (FB) (15 January 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE LOCAL DIVISION, PARYS (CIRCUIT COURT)
Case
number: 72/2016
1.
Reportable: Yes/No
2.
Of interest to other judges: Yes/No
3.
Revised: Yes/No
In
the matter between:
THE
STATE
Plaintiff
and
GERT
VAN DER WESTHUIZEN
Accused 1
ANTON
LOGGENBERG
Accused 2
HENDRIK
JACOBUS PRINSLOO
Accused
3
CORNELIUS
ANDRIES LOGGENBERG
Accused 4
LODEWIKUS
VAN DER WESTHUIZEN
Accused 5
GERT
JOHANNES VAN VUUREN
Accused 6
CORAM:
VAN ZYL, J
HEARD
ON:
18
SEPTEMBER 2023; 5 DECEMBER 2023;
9
JANUARY 2024
DELIVERED
ON:
15 JANUARY 2024
[1]
This is an inquiry in terms of section 204 of the Criminal Procedure
Act, 51 of 1977 (“the
Act”), to determine whether the
State witnesses who were called as witnesses on behalf of the
prosecution should be discharged
from prosecution in terms of section
204(2) of the Act.
[2]
The relevant parts of Section 204 of the Act determine as follows:
“
204. Incriminating
evidence by witness for prosecution.
(1)
Whenever the prosecutor at criminal proceedings informs the court
that any person called as a
witness on behalf of the prosecution will
be required by the prosecution to answer questions which may
incriminate such witness
with regard to an offence specified by the
prosecutor—
(
a
)
the court, if satisfied that such witness is otherwise a competent
witness for the prosecution,
shall inform such witness—
(i)
that he is obliged to give evidence at the proceedings in question;
(ii)
that questions may be put to him which may incriminate him with
regard to the offence specified
by the prosecutor;
(iii)
that
he will be obliged to answer any question put to him, whether
by the prosecution, the accused or the court, notwithstanding that
the answer may incriminate him with regard to the offence so
specified or with regard to any offence in respect of which a verdict
of guilty would be competent upon a charge relating to the offence so
specified;
(iv)
t
hat
if he answers frankly and honestly all questions put to him, he shall
be discharged from prosecution
with regard to the offence so
specified and with regard to any offence in respect of which a
verdict of guilty would be competent
upon a charge relating to the
offence so specified; and
(
b
)
such witness shall thereupon give evidence and
answer any question
put to him
, whether by the prosecution, the accused or the court,
notwithstanding that the reply thereto may incriminate him with
regard to the offence
so specified by the prosecutor or with
regard to any offence in respect of which a verdict of guilty would
be competent upon a
charge relating to the offence so specified.
(2)
If
a witness
referred
to in subsection
(1),
in
the opinion of the court, answers frankly and honestly all questions
put to him
—
(
a
)
such
witness shall
,
subject to the provisions of subsection
(3),
be
discharged from prosecution
for the
offence so specified by the prosecutor and for any offence in respect
of which a verdict of guilty would be competent upon
a charge
relating to the offence so specified; and
(
b
)
the court shall cause such discharge to be entered on the
record of the proceedings in question
.
(3)
…” [My emphasis]
Background:
[3]
In the trial all six accused were charged on two counts of murder, in
which Tumelo
Simon Jubeba is the deceased in count 1 and Samuel Tjixa
is the deceased in count 2. Accused 1 and 5 were also charged
on
one count of defeating the course of justice, which was count 3.
[4]
All six the accused pleaded not guilty on all the relevant counts.
They tendered
no plea explanations and placed all the elements of the
respective charges in dispute.
[5]
Many witnesses were called by the prosecution
as state witnesses.
Amongst these witnesses were six witnesses who were called in terms
of section 204 of the Act, namely
Gawie Coetzer (“Gawie”),
Fanie Oosthuizen (“Fanie”), Wikus van der Westhuizen
(“Wikus”), Müller
van der Westhuizen (“Müller”),
Wian van der Westhuizen (“Wian”) and Johan Oosthuizen
(“Johan”).
I will jointly refer to them as “the
204-witnesses”.
[6]
At the end of a long and demanding trial I concluded and ordered as
follows at paragraph
[1043] of my judgment on the merits:
“
[1043]
I consequently find and order as
follows:
ACCUSED
1:
Count
1:
Guilty
of assault with the intent to do grievous bodily harm.
Count
2:
Guilty
of assault (common).
Count
3:
Not
guilty and acquitted.
ACCUSED
2:
Count
1:
Guilty
of assault (common).
Count
2:
Guilty
of assault with the intent to do grievous bodily harm.
ACCUSED
3:
Count
1:
Not
guilty and acquitted.
Count
2:
Not
guilty and acquitted.
ACCUSED
4:
Count
1:
Not
guilty and acquitted.
Count
2:
Guilty
of assault with the intent to do grievous bodily harm.
ACCUSED
5:
Count
1:
Guilty
of assault with the intent to do grievous bodily harm.
Count
2:
Guilty
of assault with the intent to do grievous bodily harm.
Count
3:
Guilty.
ACCUSED
6:
Count
1:
Guilty
of assault with the intent to do grievous bodily harm.
Count
2:
Not
guilty and acquitted.
[7]
After judgment on the merits of the trial, both the prosecution and
the defence requested that
the inquiry in terms of section 204 of the
Act stands over until the conclusion of the trial. The trial
concluded on a Friday
afternoon, later than normal court hours, which
Friday was also the last day for which the trial had been set down.
Subsequent
thereto the State filed an application for the reservation
of questions of law and also an application for leave to appeal
against
the respective sentences. I dismissed both the applications.
It was only after the dismissal of the aforesaid applications
that a
date was arranged for this inquiry. Five of the six
204-witnesses, excluding Gawie, were subpoenaed to appear in court
at
Parys on 18 September 2023. Due to an oversight Gawie was not
subpoenaed to appear in court on the said date. The
accused,
excluding accused 3, who had been acquitted, also appeared in court.
An attorney, Mr Ellis (Jnr), appeared on behalf
of all five the
section 204-witnesses who were present, which was in accordance with
their right to legal representation as determined
in the judgment of
S v Kuyler
2016 (2) SACR 563
(FB). Mr Mthethwa,
who formed part of the prosecution team during the trial, appeared on
behalf of the State. Mr Reyneke,
who appeared on behalf of
accused 4 and 5 (and the acquitted accused 3) during the later stages
of the trial, appeared on behalf
of accused 4 and 5. He also
stood in as legal representative on behalf of accused 1 and 6 in the
stead of their respective
legal representatives. Accused 2
appeared in person. Mr Ellis (Jnr) indicated that he is not
ready to start with the
inquiry since he was not in possession of the
trial record, the relevant exhibits, the judgment on merits and the
judgment on sentence.
Arrangements were made that Mr Reyneke
would assist Mr Ellis (Jnr) to obtain same. The parties were
consequently in agreement
that the inquiry had to be postponed in
order to grant Mr Ellis (Jnr) the opportunity to properly prepare for
the inquiry and also
for Gawie to be present. The first available
date to which the inquiry could be postponed was 5 December 2023.
Arrangements
were also made that Gawie would in the meantime be
subpoenaed for 5 December 2023 and that he would also be informed of
his right
to legal representation by the other 204-witnesses. Mr
Reyneke indicated that accused 1, 5 and 6 would be filing notices to
abide
by the decision of the court in the proposed inquiry and he
requested that they be excused from further attendance, which request
I granted. The inquiry was consequently postponed to 5 December
2023.
[8]
On 5 December 2023 all six the 204-witnesses were present. Mr
Ellis (Snr), the father of
Mr Ellis (Jnr), appeared on behalf of five
of the six 204-witnesses (excluding Gawie). I advised Gawie of his
right to legal representation,
but he indicated that he will be
representing himself. Mr Mthethwa again appeared on behalf of
the State and Mr Reyneke again
appeared on behalf of accused 4.
Accused 2, after I also advised him of his right to legal
representation, indicated that
he will be representing himself.
Before the inquiry could commence, Mr Ellis (Snr) confirmed that he
has in the meantime
received the trial record and the other relevant
documents from Mr Ellis (Jnr), who received them from Mr Reyneke. He
further confirmed
that he had perused the said record and documents,
but indicated that although he was properly prepared and ready to
continue with
the inquiry, he deems it appropriate and in fact
considers himself obliged to withdraw as legal representative on
behalf of the
relevant five 204-witnesses. He based his
submission on the fact that he represented the 204-witnesses during
the relevant
bail proceedings and also during the process which led
to them becoming 204-witnesses. In light of some of the
evidence which
was presented during the trial in relation to the
aforesaid processes and certain findings I made in respect thereof,
he submitted
that he is compelled to withdraw from the inquiry due to
ethical reasons and requested that I excuse him from further
attendance.
In the circumstances Mr Reyneke, correctly so,
understood the predicament in which Mr Ellis (Snr) found himself and
did not object
to the request that Mr Ellis (Snr) be excused from
further attendance. This necessitated that the inquiry again
had to be
postponed in order to grant the relevant five 204-witnesses
the opportunity to obtain new legal representation. The inquiry
was subsequently postponed to the first available date, being 9
January 2024.
[9]
On the last-mentioned date Mr Le Grange, an attorney, appeared on
behalf of the said five 204-witnesses.
Gawie again represented
himself. Mrs Mkhobela stood in for Mr Mthethwa on behalf of the
State, which request was made earlier
after Mr Ryneke did not object
thereto and I conceded to the arrangement. Accused 2 represented
himself. Mr Reyneke appeared on
behalf of accused 4. However,
for the sake of completeness, I have to indicate that arrangements
were made with me, by agreement
between the parties, prior to 9
January 2024 to excuse accused 4 from being present at the inquiry,
since he was to attend the
funeral of his present employer and his
employer’s wife after they succumbed due to a light aircraft
accident. I conceded
to the request.
[10]
Both Mr Le Grange and Mr Reyneke filed detailed and properly
researched heads of argument, for which I extend
my appreciation.
In
limine
:
[11]
Mr Le Grange raised a point
in limine
, both in his heads of
argument and during oral argument, to the effect that the accused has
no
locus standi
in the section 204-inquiry. He submitted that
the view of the accused is irrelevant to the said proceedings. Gawie
supported the
stance of Mr Le Grange. Accused 2 and Mr Reyneke
opposed the point
in limine
. Mrs Mkhobela indicated that the
State leaves the issue in the hands of the court. After having
entertained arguments on the said
point
in limine,
I dismissed
it without having advanced reasons for my decision at the time.
I consequently herewith provide the reasons for
my ruling.
[12]
Mr Le Grange,
inter alia
, submitted that it would be unfair to
the 204-witnesses should the accused also be granted the right to
address the court on the
issue of the discharge of the said
witnesses. In this regard he submitted that an accused and/or
his/her legal representative
has the advantage of being present
during the entire trial and therefore enjoys the opportunity to
listen to all the evidence and
can therefore base his/her submissions
regarding the issue of indemnity, on the totality of the evidence.
Contrary thereto,
a 204-witness is not entitled to be present during
the evidence of the other witnesses which is presented before the
204-witness
himself/herself testifies. This causes a
204-witness to be disadvantaged
vis-à-vis
the position
of an accused.
[13]
I cannot agree with the aforesaid submission. Dealing with this
particular matter one has to be mindful
of the fact that there is a
transcribed record of the totality of the trial, which record was
made available to the legal representative
of the 204-witnesses.
The judgments on the merits and on the sentence were also provided to
the said legal representative.
Mr Le Grange and Gawie therefore
had the opportunity to properly consider all the evidence, similarly
to the opportunity which
the accused had during the trial. There is
consequently no unfairness towards the 204-witnesses by providing the
accused an opportunity
to also address the issue whether the
204-witnesses should be discharged from prosecution, or not.
[14]
Mr Le Grange furthermore relied on the following dicta at paragraph
[50] of the
Kuyler
-judgment:
[50]
The court may never allow the absurdity, that a witness be given the
opportunity,
in the main case
, to have
locus standi
, to
address its own credibility. The State is
dominus litis
at
this stage
: the
lis
is between the State and the
accused. It is not between the witness and the accused or the
witness and the State.”
[My emphasis]
[15]
In my view Mr Le Grange`s reliance on the aforesaid paragraph is
misplaced. Firstly, the said paragraph
deals with the principle
that the section 204-inquiry should, at the earliest, be held after
judgment on the merits of the trial
and not during the trial (“
the
main case
”). Secondly, the statement that “
the
lis is between the State and the accused
” and that it is
not “
between the witness and the accused or the witness and
the State
” is again with reference to the position during
the trial. In my view it can therefore not be relied upon for
purposes
of the section 204-inquiry.
[16]
Mr Le Grange also relied on the aforesaid paragraph [50] for his
argument that it is absurd that the accused
be granted an opportunity
to address the court, since they then address their own credibility.
In my view this argument can
also not hold water. Firstly, once
again, paragraph [50] deals with the position during the trial.
Secondly, if it
is considered to be an absurdity for an accused to
address the court during a 204-inquiry on the issue of his/her own
credibility
(the credibility of the accused), it should
mutatis
mutandis
be considered an absurdity for a 204-witness to address
the court during a section 204-enquiry on his/her own credibility
(the
credibility of the 204-witness), the last-mentioned which we
know is not an absurdity.
[17]
Lastly, Mr Le Grange also relied for purposes of his argument on
paragraphs [53] (e) and (f) of the
Kuyler
-judgment,
where the following principles are stated:
“
(e)
The
witness
must therefore be
allowed to advance reasons and/or present evidence to justify his
discharge from prosecution.
(f)
The
State
has an interest in the inquiry and
locus standi
for as far as it is the representative of the National Prosecutorial
Authority, to advance reasons and adduce evidence.”
[My
emphasis]
[18]
In my view the aforesaid paragraphs do not explicitly exclude the
locus standi
of an accused to address the court during a
section 204-inquiry. However, insofar as it was the intention
of the court to
find that an accused has no such
locus standi
,
the said judgment is, in my view, with respect, wrong and I therefore
do not consider myself to be bound by it in this respect.
In a
trial there are three participating parties, namely the State, the
defence (the accused) and the witnesses. I can see
no rational
basis for a view that in a subsequent section 204-inquiry, the
defence’s (the accused’s) entitlement to
participate in
the proceedings comes to an end. The
lis
between an
accused, the State and a 204-witness, in my view, persists just as
much as it did during the trial. Furthermore,
I have never come
across a situation in this division of the High Court that when a
section 204-inquiry is held immediately after
the judgment on the
merits or immediately after the judgment on sentence, an accused
and/or his/her legal representative is excused
before the inquiry is
proceeded with. To the contrary, an accused or his/her legal
representative is, in my experience, always
requested to also address
the court on the question of whether the relevant 204-witness is to
be discharged from prosecution, or
not.
[19]
For the aforesaid reasons I made the following order on 8 January
2024:
“
1.
The point
in
limine
is
dismissed.
2.
Accused 2, who is unrepresented, and counsel for accused 4 are
entitled to address the court in
the section 204-inquiry.”
Ad
merits:
[20]
The parties are relatively
ad idem
with regard to the
principles (excluding the point
in limine
dealt with above)
and approach to be followed during a section 204-inquiry.
[21]
The 204-witnesses has a right to be heard on the question whether
they should be discharged from prosecution
for the offences specified
and the failure to give such a witness a hearing would amount to a
gross irregularity. They are also
entitled to legal representation.
See
Mahomed v Attorney-General
1996 (1) SACR
139 (N) at 145 D and 145 H. See
also
S v Kuyler
supra
, at para [36]
[22]
A section 204-inquiry is
sui generis
and is analogous to
inquiries in terms of
section 103
of the
Firearms Control Act, 60 of
2000
.
[23]
The trial against an accused and the
section 204
-inquiry are two
separate and distinct proceedings. The
section 204
-inquiry is
to be held only at the end of the trial, at the earliest after
judgment on the merits.
S v Kuyler
,
supra,
at
para [52]
[24]
In terms of
section 204(2)
the test to be applied when determining
during a
section 204
-inquiry whether such a witness is to be
discharged from prosecution, is whether the witness, “
in the
opinion of the court, answers frankly and honestly all questions put
to him
…” The words “
in the opinion of the
court
” is indicative of the subjective nature of the
investigation. In this regard the following is stated in
Mahomed
v Attorney-General (Natal)
[1997] 4 All SA 599
N at 606 -
607:
“
In
my view, questions of onus and degree of proof have nothing to do
with the inquiry with which the learned Magistrate was concerned.
Considerations of onus and degree of proof are pertinent to inquiries
where the presiding officer must adopt an objective approach
and
where a ‘higher forum’ can interfere with his decision on
the basis of its own views. The words ‘in
the opinion of
the court’ emphasise the subjective nature of the investigation
envisaged in section 204(2). That the
presiding officer holds a
bona
fide
opinion
which is not the result of any gross irregularity in the proceedings
culminating in a formation of that opinion, is all
that is necessary
for the purposes of
section 204(2).
The circumstance that
another presiding officer, or a higher tribunal, might not agree with
the opinion has no effect whatsoever
on its propriety or
acceptability. The situation envisaged in
section 204(2)
is not
one on which the presiding officer is called upon to exercise a
discretion as to whether the witness should be granted a
discharge
from prosecution: If he holds the opinion that the witness has
answered all questions frankly and honestly, the
presiding officer is
obliged to grant a discharge.”
[25]
Contrary to the aforesaid
dicta
that there are “
no
questions of onus and degree of proof”
, the court in the
Kuyler
-judgment found at paragraph [40] thereof that a
section 204
-inquiry is to establish on a balance of probabilities
whether the witness answered all questions frankly and honestly. The
Kuyler
-judgment therefore requires a more stringent
approach. In my view paragraphs [43] to [46] in the
Kuyler
-judgment
are to be read in conjunction with the aforesaid dicta:
“
[43]
As stated, the two processes are irrelevant to each other. The
indemnity enquiry does not require the witness to convince the
presiding officer that the evaluation in the main trial was
erroneous,
it
is to convince him that his evidence was frank and honest
and on a
completely different platform. The test to be applied is different.
[44]
In
the
indemnity
enquiry
the
test is for
all
questions
to
be answered honestly and frankly.
Not
just some.
In
the
main
trial
the
evidence of a witness
need
not be accepted in totality to carry weight.
'Frankly
and honestly all questions' stands against trite law that, in the
decision-making process as to whether or not to accept
the evidence
of an accomplice who testifies under the auspices of
s 204
on the
merits in the main trial, it is not expected of the accomplice that
his testimony is wholly truthful in all he says. His
testimony would
suffice if it is to a large extent truthful and sufficient
corroboration therefor exists.
14
[45]
There is a difference between 'honestly and frankly', and
'trustworthy'. A witness
may answer, subjectively, honestly and
frankly, but may make a mistake. If he made a bona fide mistake he
might not be refused indemnity
, but his same evidence must be
rejected in the main trial if it is material to the issues.
[46]
The test for veracity of the evidence in the main trial against the
accused is objective against all the evidence adduced.
The test
for indemnity is subjective; the witness must testify to the best of
his ability in the circumstances that prevailed
.
Circumstances such as personal, intellectual and emotional
intelligence, fear, perceptions of intimidation, ignorance of the
legal system and more may come into play when the indemnity enquiry
is held.” [My emphasis]
[26]
In my consideration of the question whether the 204-witnesses are to
be discharged from prosecution, I am
acutely aware that the said
witnesses are not required to convince me that the evaluation in the
main trial was erroneous.
However, I deem it necessary to refer
to certain findings I made in the judgment on the merits of the
case. In this regard
I wish to refer to the following
paragraphs:
“
[750]
It will not only be a mammoth but an almost impossible task to
evaluate
the evidence of each State witness who testified regarding
the events at the arrest scene. I have consequently summarised the
evidence
of the respective witnesses in extreme detail and in such a
manner that
the
quality of the evidence is evident from a mere proper reading of the
summarised evidence
.
[811]
From an initial reading of the evidence it appears at face value to
be similar evidence
presented by each of the
section 204
-witnesses.
They described, although not exactly the same, similar conduct by the
respective accused. However, when one evaluates
the evidence
properly, it is in my view evident that they contradicted themselves
in court. They furthermore contradicted certain
essential parts of
their respective
section 204
-witness statements. Also, when their
evidence is compared to the affidavits they filed in support of their
bail applications, there
are huge differences. They also contradicted
each other in material respects. All of the aforesaid is evident from
the summarised
evidence earlier in this judgment, read in conjunction
with the additional summary of the “
alleged acts of assault
by accused 1, 2, 4, 5 and 6”
and the “
alleged acts
of assault by the respective
section 204
-witnesses and other
accomplices
”.
[815]
During the cross-examination of the
section 204
-witnesses, some of
them were confronted with aspects of their evidence that differ from
the
section 150
-opening address. For example, in his
cross-examination Müller confirmed that he never saw accused 5
hitting one of the suspects
on his head with the monkey wrench, but
only that accused 5 hit next to the suspect`s head with it. Contrary
thereto, it was stated
at p.9, paragraph 21, of exhibit “C”
that Müller would testify that he saw accused 5 hitting one of
the suspects
on the head with the monkey wrench.
[816]
In my view and as also submitted by the defence, there appears to
be a golden thread that runs through the evidence to the effect
that
the
section 204
-witnesses attempt to downplay the nature and
seriousness of their own assaults, whilst exaggerating the nature and
seriousness
of the assaults by the accused. This was also very
evident from the evidence of the
section 204
-witnesses whose voice
notes were played in court. Their conduct which they described in
their respective voice notes were very
different from what they
described in their own evidence in court. Once again they downplayed
the contents of their respective
voice notes by alleging that they
boasted about their conduct, but that it was not a true version of
the events. However, the evidence
of some of the
section
204
-witnesses actually corresponds to a great extent with conduct
described in the voice notes. For example, Müller himself, Wikus
and Wian testified that Müller picked up the one suspect to
waist height and then either dropped him to the ground or forcefully
pushed him down on the ground (they differ as to how the suspect got
to the ground again), which act is very similar to what Müller,
inter alia,
described in his one voice note when
he said “
ek het
hom…opgetel
en…miershoop neergedoos”.
[820] The background to
and the manner in which the
section 204
-witness statements were
“created” in the present case is in vast contrast to the
usual manner in which witness statements
are taken done by the
police. In my view the case law regarding the effect of
contradictions to and deviations from “normal”
police
statements are not directly applicable to this case.
In
this case much more weight is to be attached to contradictions
between and deviations from the
section 204
-witness statements.
[821]
In addition to the aforesaid, it is evident from the record that Adv
De Bruyn and especially Adv Dreyer on numerous occasions
during
cross-examination made the statement to the
section 204
-witnesses
that it is evident from their evidence that when questions are
restricted to exactly what is contained in their respective
statements, they are able to respond to those questions. However,
the
moment a question goes beyond the parameters of their respective
statements, they are unable to respond with a proper and credible
answe
r.
The witnesses also very often responded with explanations to the
effect that they are in court to tell the truth. In my
view this
scenario is an alarming second golden thread that runs through the
evidence of the
section 204
-witnesses. I have to agree with the
submissions of the defence team that this is strongly indicative of
collusion against the accused
and of witnesses who were coached
regarding the contents of their respective witness statements. (This
is not any reflection on
the State`s legal team.) Some examples are
the following: ...
[822]
Considering
the cautionary rule applicable to the evidence of accomplices, I am
unable to convict accused 1, 2, 4, 5 and 6 based
on the evidence of
the
section 204
-witnesses with regard to the alleged acts of assault
by the accused on the suspects
in the absence of
corroboration by independent evidence.
[1006]
Based on the findings I have already made with regard to the case of
accused
1
, I am
satisfied that he is to be
convicted
based on his own admissions which he made during the presentation of
his evidence concerning his acts of assault on the
suspects.
[1007]
With regard to
accused
2, 4, 5 and 6
I
am satisfied that they are to be
convicted
based on the formal admissions they made with regard to their
respective acts of assault on the suspects
.”
[My emphasis – not in my original judgment]]
[27]
Mr Le Grange submitted that for purposes of the
section 204
-inquiry,
the totality of the evidence should be considered holistically.
He submitted that when this is done, it is evident
that the evidence
of the 204-witnesseses confirms that the accused, excluding accused
3, indeed assaulted the deceased persons,
which corresponds with my
findings that the accused in fact assaulted one or both of the
deceased persons and consequently convicted
them on that basis.
He therefore submitted that although the evidence of the
204-witnesses was not particularly good, they
answered frankly and
honestly to an extend which was sufficient for the purpose for which
the State called them. I posed
it to Mr Le Grange that the
accused were not convicted based on the evidence of the
204-witnesses, but based on their own evidence
and/or their own
admissions and/or their own versions which were put to the
204-witnesses, as is evident,
inter alia,
from paragraphs
[822], [1006] and [1007] quoted above from my judgment on the merits.
Mr Le Grange thereupon submitted that the
section 204
-witnesses
answered frankly and honestly enough to have compelled the accused to
make their respective admissions.
[28]
I cannot agree with the aforesaid contentions by Mr Le Grange.
As correctly pointed out by Mr Reyneke,
the requirement is that all
questions put to the 204-witnesses were to be answered not only
honestly, but also frankly, which they
failed to do.
[29]
“
Frank
” is defined,
inter alia
, as “
open,
honest and direct
”, “
candid
”, “
sincere
”
and “
forthright
”. It is evident that the
204-witnesses, excluding Gawie, blatantly lied with regard to the
alleged actions of the accused.
They shifted the blame for the
serious injuries which the deceased suffered away from themselves to
the accused, not only protecting
themselves, but also protecting each
other. That was the “
golden thread”
which I dealt
with and referred to in paragraph [816] quoted above from my judgment
on the merits.
[30]
There is in my view absolutely no manner in or basis upon which I can
form the opinion that the
section 204
-witnesses answered frankly and
honestly all questions put to them. I cannot even form the
opinion that they answered most
of the questions posed to them
frankly and honestly. The differences and contradictions not
only in their own evidence, but
also between the evidence of the
respective 204-witnesses, between their evidence and their statements
and between their evidence
and the opening statement, cannot be
explained on the basis of the “
fallibility of human
observation
”, as Mr Le Grange submitted with reference to
S
v Mthetwa
1972 (3) SA 766
(AD) at 768 A – C. The
said differences and contradictions, in my opinion, can definitely
also not be ascribed to mere
mistakes in the evidence of the
204-witnesses (excluding the evidence of Gawie).
[31]
In my view this matter is similar to the contents of the dicta stated
in the 1997
Mahomed
-judgment at 606:
“…
Indeed,
it seems to me that any reasonable judicial officer, faced with the
evidence that was before the Magistrate in this case,
would have come
to the conclusion that the applicant was not being “frank and
honest”. Apart from the contradiction
which the learned
Magistrate emphasised when he announced his decision not to grant the
discharge, it is perfectly clear from the
record that the applicant
was consistently underplaying her role in the transaction and there
are a number of passages in her evidence
… which are
inherently incredible. In my view there is nothing whatsoever to
support the contention that the learned Magistrate’s
opinion to
the effect that the applicant had not answered all questions
frankly and honestly was the result of anything other
than a proper
application of his mind to the issues with which he was called upon
to deal.”
[32]
When I consider the totality of the evidence of the 204-witnesses
subjectively, even without the objective
medical evidence, I cannot
opine that they answered all questions frankly and honestly. This is
my opinion even without applying
the more stringent approach of
requiring proof on a balance of probabilities.
[33]
In my view the 204-witnesses, excluding Gawie, can consequently not
be discharged from prosecution on the
respective main counts, nor
from any offence in respect of which a verdict of guilty would be
competent upon a charge relating
to the said offences.
[33]
With regard to Gawie, there were also contradictions in his evidence,
specifically with regard to how, when
and by whom his statement(s)
were taken. He was also confronted with the sequence of events
which differed between his statement
and his evidence in court. He
also contradicted himself between explaining whether accused 1 kicked
the one suspect or whether
he trampled on him. However, as correctly
conceded by Mr Reyneke already in his heads of argument, Gawie, at
least to a certain
extent, took responsibility for the glaring
mistakes in his evidence and/or his statement. Although his evidence
was definitely
not perfect, it, in my opinion, can be categorized as
him having been frank and honest with the court and probably gave a
version
which was the closest to the truth in comparison with the
evidence of the other 204-witnesses.
[34]
Gawie should consequently be discharged from prosecution.
[35]
I consequently make the following order:
1.
The witnesses Fanie Oosthuizen, Wikus van der
Westhuizen, Müller van der Westhuizen, Wian van der Westhuizen
and Johan Oosthuizen, who were called as witnesses in terms
of
section 204
of the
Criminal Procedure Act, 51 of 1977
, are not
discharged from prosecution in respect of the two offences of murder
and the one offence of defeating the ends of justice,
as specified in
the indictment in the present matter, and for any offence in respect
of which a verdict of guilty would be competent
upon a charge
relating to the offences so specified.
2.
The witness, Gawie Coetzer, who was called as a witness in terms of
section 204
of the
Criminal Procedure Act, 51 of 1977
, is discharged
from prosecution in respect of the two offences of murder and the one
offence of defeating the ends of justice,
as specified in the
indictment in the present matter, and for any offence in respect of
which a verdict of guilty would be competent
upon a charge relating
to the offences so specified.
C.
VAN ZYL, J
On
behalf of the
section 204
-witnesses
(excluding
Mr Gawie Coetzer):
Mr JJP Le Grange
Instructed by:
Johan Le Grange Attorneys
POTCHEFSTROOM
Mr
Gawie Coetzer
In person
On
behalf of the State:
Adv L Mkhobela
Adv S Mthethwa
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
On
behalf of Accused 1, 5 and 6: Notices
to abide
On
behalf of Accused 2: In
person
On
behalf of accused 4:
Mr JD Ryneke
Instructed by:
Legal Aid SA
Bloemfontein Local Office
Bloemfontein