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[2011] ZASCA 185
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Gilbert v S (065/11) [2011] ZASCA 185 (30 September 2011)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 065/11
In the matter between:
SHANE GILBERT
…...........................................................................................
Appellant
and
THE STATE
…................................................................................................
Respondent
Neutral
citation
:
Shane Gilbert v The State
(065/11) [2011]
ZASCA185
(30
September 2011)
Coram:
HEHER,
MAYA, CACHALIA, LEACH JJA and PETSE AJA
Heard:
16 August
2011
Delivered:
30
September 2011
Summary:
Evidence
– assessment and evaluation thereof – proper approach to
adopt.
____________________________________________________________________
ORDER
____________________________________________________________________
On appeal from:
KwaZulu-Natal High Court,
Pietermaritzburg (Ntshangase, Gorven JJ sitting as court of appeal):
The appeal succeeds. The
appellant’s conviction and sentence are set aside.
_______________________________________________________________________
JUDGMENT
____________________________________________________________________
PETSE AJA (HEHER,
MAYA, CACHALIA and LEACH JJA CONCURRING):
[1] In May 2002, the
appellant was charged in the regional court, Durban with the murder
of Mr Sivalingum Govender (the deceased).
Despite his plea of not
guilty, he was subsequently convicted as charged and sentenced to ten
years’ imprisonment.
[2] His appeal against
both conviction and sentence to the KwaZulu-Natal High Court,
Pietermaritzburg, was unsuccessful. The further
appeal before this
court is with the leave of the court below.
[3] It was common cause
at the trial that the deceased was the owner of and a passenger in
the taxi in which the appellant was travelling
at the material time.
In his statement in terms of s 115 of the Criminal Procedure Act 51
of 1977 (the Act) the appellant, who
was also a passenger in the
taxi, denied that he unlawfully and intentionally killed the
deceased. He further disclosed that he
relied on a defence of private
defence.
[4] To substantiate his
defence the appellant tendered as evidence at the trial, with the
concurrence of the state, a letter dated
26 September 2009 (together
with hospital records) from Addington Hospital in Durban which, inter
alia, recorded that the appellant
was examined on 18 December 2000
after an alleged assault and the following injuries were noted:
numerous lacerations on scalp
(± 6) over occipital, parietal
and frontal areas; two lacerations of right ear; contusion over right
mandible causing a
fracture of the bone; and a 6cm stabwound of right
gluteal region i.e. buttock. It was thus common cause at the trial
that the
appellant was injured on the day in question in the manner
more fully set forth in his hospital records.
[5] The appellant also
made certain admissions in terms of s 220 of the Act. The most
relevant admissions for present purposes are
the following: that the
deceased was stabbed . . . on 18 December 2000; that the deceased
died as a result of ‘Penetrating
incised wounds of the neck and
chest’; and that the postmortem examination report correctly
‘ascertains’ the
cause of death.
[6] The report on a
medico-legal postmortem examination of the deceased records the
following under sub-heading ‘The Chief
Postmortem Findings’:
‘
1.
Penetrating incised wounds of the neck and chest. 2. Incised wound of
the aorta, with mediastinal haematoma.’
Under the sub-heading
‘Injuries’ the following is recorded:
‘
A
57 X 25mm penetrating incised wound of the anterior chest wall was
present, 1355mm above the heel and lying directly over the
midline .
. . A 59 X 27mm penetrating incised wound was present over the
lateral left neck, 1595mm above the heel . . . An 82 X
30mm incised
wound present over the flexor aspect of the right forearm.’
[7] Before considering
the issues argued before us, it is useful in my view to set out
briefly the evidential background. Two witnesses
were called to
testify on behalf of the state, being Mr Thulisani Happy Mnguni
(Mnguni) and Mr Logan Moodley (Moodley). The appellant
also testified
in his defence. Mnguni testified that he was employed by the deceased
as a taxi conductor. He was travelling in
the deceased’s taxi
on 18 December 2000 which, at the time, was driven by Moodley and in
which the deceased and the appellant
were passengers. When he
collected fares from the passengers, the appellant refused to pay his
fare despite the fact that the deceased
had asked him to do so. The
appellant, instead, swore at the deceased and also punched him with a
clenched fist. Mnguni then called
out to Moodley to stop the taxi.
[8] When the taxi stopped
Moodley opened the rear door and the deceased alighted and stood next
to the taxi. The appellant also
alighted, drew a knife from his
pocket and stabbed the deceased three times in the left arm, left
side of the neck and chest. The
deceased collapsed and died. Mnguni
then took a sjambok from the dashboard of the taxi and struck the
appellant once with it. The
appellant turned to him and he fled,
fearing for his life. He enlisted the assistance of other taxi
drivers in the immediate vicinity
who chased the appellant, caught
him and assaulted him. The police arrived and removed the body of the
deceased to the mortuary.
Mnguni denied under cross-examination that
Moodley and the deceased had at any stage assaulted the appellant or
pulled the appellant
out of the taxi. But he conceded that he did not
see the assault of the appellant by the taxi drivers.
[9] Moodley was the
second witness called by the state. He testified that at the time of
the incident he was the driver of the deceased’s
taxi which was
travelling from Bonella to the market in Durban. En-route to the
market he heard one of the passengers swearing.
Upon his arrival at a
drop-off point he opened the rear door of the taxi for the deceased
to alight. As the deceased was about
to do so the appellant who was
seated on the back row of seats in the taxi pulled him back. After
the deceased had eventually alighted
from the taxi he went around to
the sliding door on the side. When the sliding door was opened he and
the deceased pulled the appellant
out of the taxi. The appellant drew
a knife and at that stage Mnguni struck him with a sjambok. The
appellant then turned to Mnguni
who ran away with the appellant in
pursuit. All the while the deceased was standing next to the taxi.
[10] When the appellant
abandoned his pursuit of Mnguni he returned to Moodley, brandishing
his knife and chased him across the
taxi rank. He too outran the
appellant who then turned his attention to the deceased. A scuffle
ensued between the deceased and
the appellant during which the
appellant stabbed the deceased. Thereafter the appellant ran away but
was prevented from fleeing
the scene by members of the public
responding to Moodley’s screams.
[11] They stoned the
appellant, who at that stage, was in the taxi in which he had sought
refuge. Police and paramedics were summoned
to the scene and on their
arrival the paramedics informed Moodley that the deceased had died.
Under cross-examination he said that
the appellant was asked to
alight from the taxi but refused to do so. He and the deceased then
pulled the appellant out of the
taxi. When he came out of the taxi,
the appellant, without uttering a word, pulled out a knife. He
further said that no one had
requested him to stop the taxi before it
arrived at the market where he was to offload passengers. He
reiterated that he and the
deceased did not at any stage assault the
appellant.
[12] The appellant
testified in his defence. He told the trial court that he left his
place of work at 17h00 and proceeded to West
Street Durban where he
had arranged to meet his ex-fiancée Ms Nicolette Houtton
(Nicolette). After meeting Nicolette he
withdrew money from an auto
teller machine. They then proceeded to the Bonella Taxi Rank where
they boarded a taxi home.
[13] En-route the
conductor requested the passengers to pay their fares. He took out R5
from his wallet – to pay for his and
Nicolette’s fares –
and also collected R2.50 from a fellow passenger who was seated on
the same seat. The fourth passenger
on his left informed him that her
companion seated in the front would pay for her. At this stage the
deceased nudged him on his
shoulder and asked him to ‘pass your
fare forward’. He ignored the deceased whilst he continued to
talk to this lady.
The deceased pushed him, and swore at him. He
turned around towards the deceased and swore back at him. The
deceased then punched
him on the back of his head and at the same
time shouted at Moodley to stop. He hit back by parrying the
deceased’s blows
with his left elbow which provoked an
altercation between them.
[14] When the taxi
stopped and whilst he was in the process of alighting through the
sliding door, he felt a blow with a hard object
on his lower back
which caused him to fall to the floor of the taxi. The deceased and
Moodley pulled him out of the taxi. The deceased
then struck him and
he fell to the ground. Whilst he lay on the ground he was subjected
to a sustained assault at the hands of
the deceased, Moodley and
Mnguni. He had no opportunity to either ward off the blows or flee
from his assailants. He was repeatedly
punched, kicked and struck
with a sjambok all over his body.
[15] At some point
Nicolette intervened by grabbing the sjambok from Mnguni. This
presented him with an opportunity to get to his
feet. He then drew a
small knife from his pocket which he unfolded. In an attempt to keep
his assailants at bay he, as he put it,
‘lashed out’ with
his knife. This, however, did not deter his attackers who kept on
advancing towards him kicking and
punching him as he continued to
‘lash out’ with his knife. He was shocked to suddenly see
blood gushing out of the
deceased’s neck. Prior to this it was
not possible for him to flee as he was virtually pinned to the side
of the taxi. On
seeing blood gushing out of the deceased’s neck
Mnguni ran away across the road whereafter the beating ceased. He too
walked
to Nicolette. He was in a state of shock as he had not
expected this unfortunate turn of events.
[16] Whilst he and
Nicolette stood together awaiting the arrival of the police he saw
what seemed to him to be a belligerent group
of persons advancing
towards them. Fearing for his safety he fled from that spot and took
refuge in the taxi. The taxi was pelted
with stones by the group of
persons who had advanced towards him. He was struck only once with a
brick on the side of his head
behind the ear. He denied that he at
any stage chased Mnguni and Moodley with a knife as testified to by
them. He went on to say
that the deceased came to be stabbed not
because he purposefully and consciously directed his knife at him but
due to the fact
that he was the most aggressive of the three
assailants and thus in the forefront of the attack.
[17] In this court the
conviction of the appellant was assailed on several grounds, the
upshot of which was that the state’s
version was fraught with
numerous and material contradictions and inconsistencies that
rendered it unworthy of credence. It was
argued that both the trial
court and the court below seemingly rejected the appellant’s
version solely on the basis of probabilities
despite the fact that no
material discrepancies or inconsistencies in such version
could be identified.
[18] Counsel for the
appellant cited numerous passages from the appeal record which he
contended showed material inconsistencies
between the evidence of
Mnguni and Moodley. More will be said about those inconsistencies
later. Suffice it to mention at this
juncture that counsel argued
that the inconsistencies inherent in the state’s version were
at the heart of the crucial issue
as to how the fracas
inside the taxi started. Thus, so it was argued, they could
not simply be brushed aside on the basis that given the passage of
time
between the occurrence and the trial such inconsistencies were
to be expected.
[19] In an apparent
reference to the discrepancies in the evidence of the two state
witnesses the trial court in the course of its
judgment said:
‘
[I]t
is important when dealing with a matter like this that everything
happened quite fast. It is therefore unreasonable to expect
all the
witnesses to remember everything in detail, what had transpired on
the day of the incident. One must also keep in mind
that memory fades
as time goes by and to recall everything that happened in detail . .
. on the 18
th
day
of December 2000, that is to say more than two years ago, is unfair.
It is therefore unreasonable to say that when witnesses
did not
corroborate one another on each and every respect, that they were
telling lies. The two witnesses who testified on behalf
of the State
testified to the best of their abilities what happened on the day in
question. It must also be kept in mind that they
had observed certain
happenings from a different angle.’
[20] Later the trial
court continued:
‘
The
accused further wants the Court to believe that outside the taxi he
was on the floor and assaulted. According to his evidence,
the Court
must accept that he was surrounded by three men who were kicking and
[beating] him but strangely enough under those circumstances
he
managed to get on to his feet and while these person[s] were on top
of him, the one armed with a sjambok and the other with
an iron, he
still managed to get his knife out of his pocket, to unfold it and
then to wave it in front of him. What is further
quite strange is
that the man, the owner of the taxi with whom he had problems
earlier, is the one who was so stupid to walk into
this knife. The
Court does not accept that version of the accused at all’
.
I pause
here to mention that the trial court furnished no further
reasons for rejecting the appellant’s version and accepting
that
of the state.
[21] On the other hand
the court below in giving its extempore
judgment said the following:
‘
Now
the appellant described the knife as a folding knife, in my view the
magistrate cannot be faulted in his rejection of the appellant’s
version. He found it strange that the appellant under those
circumstances had managed to get onto his feet. While the deceased
was on top of him with the driver and conductor on either side of
him, he must have found it strange also that he, that is the
appellant, was allowed by the three who were furiously engaged in
assaulting him, he would have been allowed an opportunity to
take out
his knife out of his pocket, to unfold it, unless of course it had
been unfolded in readiness in his pocket, and to flash
it at them and
finally to stab the deceased three times. The appellant was here not
dealing with a single person, he was dealing
with three huge
assailants, one of whom was on top of him. I have no doubt in my mind
that the magistrate took account of these
unsatisfactory features in
the appellant’s version, which sought to explain the admitted
stabbing of the deceased. Clearly
the appellant would have been
annoyed with the deceased who, as he perceived him, was taking an
intrusive interest in whether or
not he passed on the fare, which the
appellant conceded to be no concern of the deceased, whose ownership
of the taxi he did not
know then. The magistrate rejected the
appellant’s evidence that he was assaulted by the deceased,
Mnguni and Moodley, and
that was the reason for the conviction which
followed, and that they were responsible for the injuries he
sustained.’
[22] It went on to
conclude that the trial magistrate was correct in rejecting the
appellant’s evidence that he was assaulted
by the deceased. It
attributed the cause of the injuries sustained by the appellant at
the crime scene to the assault perpetrated
by members of the public.
The court below likewise furnished no discernible reasons as to why
it considered the trial court’s
rejection of the appellant’s
evidence supportable on the conspectus of the evidence adduced at the
trial.
[23] Before considering
the thrust of the submissions advanced on behalf of the appellant in
this court it will be useful to restate
the basic principles that
have a bearing on the issue of how evidence should be evaluated. It
is trite that a trial court must
adopt a holistic approach in
evaluating evidence; have due regard to the mosaic of proof in its
totality; and accord due weight
to all the evidence in the light of
the inherent probabilities of the case. (
See S v Hadebe &
others
1998 (1) SACR 422
(SCA) at 426 f-h). Where the fate of the
trial hinges on probabilities it behoves
the
trial courts to bear in mind what was said by this court in
S v
Shackell
2001 (4) SA 1
(SCA) para 30:
‘
It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and that a mere
preponderance of probabilities is not enough. Equally trite is the
observation that, in view of this standard of proof in a criminal
case, a court does not have to be convinced that every detail of an
accused’s version is true. If the accused’s version
is
reasonably possibly true in substance, the court must decide the
matter on the acceptance of that version. Of
course
it is permissible to test the accused’s version against the
inherent probabilities. But it cannot be rejected merely
because it
is improbable; it can only be rejected on the basis of inherent
probabilities if it can be said to be so improbable
that it cannot
reasonably possibly be true.’
[24] I return to the
facts of the present appeal. It was argued that four cardinal issues
arose for determination at the trial.
These were how the altercation
between the deceased and the appellant arose; who between the
appellants and the deceased (and possibly
others), was the aggressor;
how the stab wounds sustained by the deceased were inflicted; and
whether there was a reasonable possibility
that the appellant was in
fact defending himself.
[25] As to the first
question posed above it seems to me reasonable to conclude that the
altercation between the appellant and the
deceased was triggered by
the appellant’s failure – which the appellant testified
was not a refusal – to pass
on the fares that he had collected
from some of his fellow passengers to the conductor. When the taxi
was stopped the appellant
was then pulled out of the taxi by both
Moodley and the deceased. There is a conflict between the version of
the state and that
of the appellant as to what occurred next (once
the appellant was out of the taxi).
[26] The appellant
testified that as he stepped out of the taxi he was heavily assaulted
by the deceased, Moodley and Mnguni and
sustained multiple injuries
to which reference has already been made. When an opportunity
presented itself he drew a knife and
‘started waving it at’
his assailants. As to the injuries sustained by the appellant the
court below accepted the evidence
of Mnguni and said that:
‘
members
of the public converged on the taxi and stoned the taxi and indeed
assaulted the appellant. The appellant names the brick
only as having
been used to assault him. It is not inconceivable that there lies the
answer for the injuries which the appellant
sustained’
.
This was a clear
misdirection on the part of the court below for Mnguni confirmed that
he had not witnessed the assault of the appellant
by members of the
public. Moodley’s evidence did not shed light on this aspect
either for all he could say was that the appellant
‘did get
injured in the van’. How and by whom the appellant’s
injuries were inflicted, the state, which bore
the onus, was not able
to clarify.
[27] The evidence of
Mnguni and Moodley that the appellant was injured by members of the
public was speculative. On the other hand
the evidence of the
appellant, that he was assaulted by the deceased and his cohorts in
the manner testified to by him and sustained
the injuries depicted in
his hospital records, is reasonably possibly true.
[28] Moreover the issue
as to how the stab wounds sustained by the deceased were inflicted
was similarly not addressed by both the
trial court and the court
below. In this court counsel for the appellant argued that whilst the
postmortem report described the
cause of death as ‘penetrating
incised wounds of the neck and chest’ there is simply no
evidence of the extent to which
the wounds penetrated the body of the
deceased. The doctor who prepared the report on a medico-legal
postmortem examination of
the deceased was not called presumably
because of the admission of the content of the report by the
appellant. In my view the doctor
should have been called given what
was put to Mnguni and Moodley on behalf of the appellant under
cross-examination, namely that
he merely ‘lashed out’
with his knife to keep his attackers at bay.
[29] In view of the
serious shortcomings in the state’s case, about which nothing
more need be said in this judgment, save
to remark that a careful
reading of the appeal record reveals that there are numerous material
discrepancies and contradictions
between the two state witnesses who
testified at the trial, all of which were merely glossed over by the
trial court and the court
below.
[30] Whilst I am not
unmindful that Mnguni and Moodley testified as to events that
occurred more than two years earlier –
just as the appellant
did – I am nevertheless of the view that the trial court did
not give proper consideration to the contradictions
inherent in their
respective evidence. I mention some of those contradictions as were
highlighted by counsel for the appellant.
They are the following: (a)
Mnguni testified that he asked Moodley to stop the taxi after
observing the appellant and the deceased
engaged in a violent
confrontation whereas Moodley said he stopped the taxi on his own to
off-load passengers; (b) Moodley said
that the appellant pulled the
deceased back into the taxi as the latter was in the process of
alighting whereas Mnguni denied that
such an incident ever occurred;
(c) Moodley said he and the deceased pulled the appellant out of the
taxi whereas Mnguni again
denied that such an incident ever occurred;
(d) Mnguni said that after alighting from the taxi the appellant
chased Moodley away
and thereafter returned to stab the deceased
whilst Moodley said that the appellant chased Mnguni away first
before returning to
the deceased and stabbing him. From this there
can be no doubt that Mnguni and Moodley contradicted each other as to
what precipitated
the confrontation outside the taxi. The cumulative
effect of the foregoing contradictions is such that they detract from
the reliability
of the state’s case. What this then means is
that the trial court should have considered the nature of such
contradictions,
their number and importance, and their bearing on
other parts of the witnesses’ evidence and given due weight
thereto in
reaching its verdict. See
S v Mkohle
1990 (1) SACR
95
(A) at 98f-g.
[31] Given the nature,
number and importance of those contradictions viewed in the context
of the appellant’s evidence it
cannot be said that the
probabilities favour the state’s version. It therefore follows
that the trial court should have entertained
a reasonable doubt as to
whether the state succeeded in proving that the appellant did not act
in self-defence.
[32] In this court
counsel for the state was, after some initial tentative attempts to
support the conviction, constrained to concede
that there were
insurmountable hurdles in his path. He, for example, accepted that
the doctor who conducted the postmortem examination
on the deceased
should have been called to testify in relation to his report; that
expert medical evidence should have been adduced
to determine whether
the injuries suffered by the appellant were consistent with the
assault testified to by the appellant; that
the version of Mnguni and
Moodley was such that, even if looked at in isolation, it was riddled
with inconsistencies and contradictions
that detract from its
reliability; and, indeed, that the contradictions between the
evidence of Mnguni and Moodley were material.
[33] It remains to deal
with two issues. The first relates to the appeal record and the
second concerns the heads of argument filed
on behalf of the
respondent. The appeal record incorporated argument in the court
below comprising 53 pages all of which were irrelevant
to this
appeal. This court has in the past expressed its displeasure at the
habit of incorporating irrelevant material in appeal
records as this
creates unnecessary work. (
See Minister of Environmental Affairs
and Tourism & others v Phambili Fisheries (Pty) Ltd: Minister of
Environmental Affairs
and Tourism & others v Bato Star Fishing
(Pty) Ltd
2003 (6) SA 407
(SCA) para 76.) When counsel for the
appellant was quizzed on this aspect he professed ignorance of the
import of the SCA rule
8(6)(j).
[34]
Concerning the respondent’s heads of argument they woefully
fail to pertinently address the issues canvassed in the appellant’s
heads of argument. Counsel who drew the respondent’s heads of
argument (but did not appear at the hearing of the appeal)
would thus
do well in future to pay due heed to what Harms JA said in
Caterham
Car Sales & Coachworks Ltd v Birkin Cars (Pty) Ltd & another
[1998] ZASCA 44
;
1998 (3) SA 938
(SCA) para 37 in this regard:
‘
There
also appears to be a misconception about the function and form of
heads of argument. The Rules of this Court require the filing
of main
heads of argument. The operative words are “main”,
“heads” and “argument”. “Main”
refers to the most important part of argument. “Heads”
means “points”, not a dissertation. Lastly, “argument”
involves a process of reasoning which must be set out in the heads. A
recital of the facts and quotations from authorities does
not amount
to argument.’
[35] For all the
aforegoing reasons therefore the appeal is allowed. The order of the
court below is set aside and replaced with
the following:
‘
The appeal
succeeds. The appellant’s conviction and sentence are set
aside’.
____________________
X M Petse
Acting Judge of Appeal
APPEARANCES
APPELLANT: M B Pitman
Instructed by Hulley &
Associates, Durban
Honey Attorneys,
Bloemfontein
RESPONDENT: D A Paver
Instructed by Director of
Public Prosecutions, Pietermaritzburg
Director of Public
Prosecutions, Bloemfontein