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[2017] ZAKZPHC 67
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Maharajh and Others v S (AR552/2015) [2017] ZAKZPHC 67 (3 November 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU
NATAL DIVISION, PIETERMARITZBURG
Case
No: AR552/2015
In
the matter between:
S.P
MAHARAJH
FIRST
APPELLANT
ROSHAN
RAMESAR
SECOND
APPELLANT
SOLOMON
SIKOBI
THIRD
APPELLANT
and
THE
STATE
RESPONDENT
Coram
: Seegobin et Poyo Dlwati JJ
Heard
: 05 September 2017
Delivered
: 03 November 2017
JUDGMENT
POYO
DLWATI J:
[1]
On 5 September 2017 we granted an order in the following terms:
(1) The appeal is
upheld.
(2) The conviction
and sentence of all the appellants are set aside.
We
indicated at the time that the reasons for such an order would follow
in due course. These are the reasons.
[2]
The three appellants, all policemen, were convicted of one count of
extortion by the by the learned Regional Court Magistrate,
Ms Fikeni,
in Durban on 4 August 2015. They were sentenced to 3 years
imprisonment in terms of section 276(1) (i) of the Criminal
Procedure
Act 51 of 1977 (the Act). With the leave of the court
aquo
,
they appealed against their conviction and sentence.
[3]
The charge which the appellants faced at the commencement of the
trial was that on 12 February 2013at or near the Engen garage
on
Marine Drive in Durban, KwaZulu Natal, the appellants unlawfully and
intentionally induced or subjected to pressure or inspired
fear in
the mind of the complainant, Mr Anesh Balraj, by threatening to
arrest him on a charge of business robbery and further
refused to
return his property and did then by means of the said threat or
inducement or pressure obtain or attempt to obtain an
advantage not
due to themselves to wit the sum of R2500. The other two counts
they faced were found to have been duplication
of charges by the
learned magistrate and they were thus acquitted on those counts by
the learned magistrate.
[4]
In order to fully understand the issues raised in this appeal on
behalf of the appellants it is necessary to summarise the evidence
upon which the appellants were convicted. It was the evidence before
the court
aquo
that Mr Kidesh Ramjutten (Mr Ramjutten), who is the brother of Mr
Anesh Balraj (Mr Balraj), the complainant, who is also the owner
of
the Engine garage on Marine Drive on the Bluff, Durban, was arrested
on allegations of business robbery by the Wentworth police.
The
police officers involved in the arrest included the three appellants.
[5]
The background to that matter was that Mr Ramjutten was owed a sum of
R18000 for diesel purchased but not paid for by one Roland
Sanjeev
Preethraj (Mr Preethraj) of Cartmore Carriers. On failure by Mr
Preethraj to pay Mr Ramjutten, Mr Ramjutten secured the
services of
his brother, Mr Balraj, to assist with the recovery of the debt from
Mr Preethraj.
[6]
Mr Balraj, in turn, secured the services of Mr Malcom Rosskruge, a
policeman, who allegedly moonlighted as a debt collector,
to assist
with the debt collection. After some conversation between Mr
Rosskruge and Mr Preethraj, Mr Preethraj sent a rather tense
message
to Mr Ramjutten via his cellular phone using the short message
service (sms). He stated that Mr Ramjutten could pick up
a trailer at
his business premises as repayment for the debt or hold it as
security until the debt was paid. Once the trailer was
taken by Mr
Ramjutten, Mr Preethraj, who was unhappy with this arrangement, went
and opened a charge of business robbery or intimidation
at the
Wentworth police station.
[7]
It became apparent to the police during the arrest of Mr Ramjutten
that he had been assisted by his brother, Mr Balraj, who
was well
known to the Wentworth police, to secure the services of Mr Rosskruge
who was instrumental in the taking of the trailer.
Mr Balraj was
called into the police station in order to explain his involvement in
the matter and to also assist his brother.
[8]
There was a dispute as to whether it was a warning or a threat that
was issued by the first and second appellants that if convicted
for
the crime of business robbery, Mr Balraj and Mr Ramjutten could face
a minimum sentence of 15 years imprisonment. It became
evident that
after this threat or warning was issued, both Mr Balraj and Mr
Ramjutten made statements to the police explaining
how they got to be
in possession of the trailer.
[9]
Furthermore, from their evidence, although contradicted, it was
established that the police were interested in finding out any
wrongdoing by Mr Rosskruge, who, as I have said was also a policeman.
It is for this reason, as was put to the state witnesses
on behalf of
the appellants, that a meeting was set up at Mr Balraj’s garage
in Marine Drive. According to the State, it
is here that Mr Balraj
negotiated and agreed to pay an amount of R2500 so that he wouldn’t
be arrested for business robbery
and for his truck to be released by
the police.
[10]
Two days later Mr Balraj opened a case of extortion against the three
appellants. At the trial the state led the evidence of
5 witnesses
whilst the first and second appellants testified in their defences.
The third appellant did not testify. The learned
magistrate convicted
all three appellants and sentenced them as mentioned above.
[11]
Two issues arose in this appeal. The first was that because the
learned magistrate failed to make an assessment of the evidence
as a
whole and was therefore unable to make factual findings, it was
submitted that there was no rational basis for the conclusion
she
arrived at. The second issue was that the evidence tendered by the
state did not support a conviction, in other words, the
State failed
to prove the guilt of the appellants.
[12]
In dealing with the first issue raised and the judgment of the
learned magistrate, it is apposite to quote what Corbett CJ(as
he
was) said in his address to recently appointed judges in relation to
writing a judgment (delivered on 21 July 1997) published
in SALJ Vol
15, part 1(1998) at 116:’….. The true test of a correct
decision is when one is able to formulate convincing
reasons (and
reasons which convince oneself) justifying it. And there is no better
discipline for a judge than writing (or giving
orally) such reasons.
It is only when one does so that it becomes clear whether all the
necessary links in a chain of reasoning
are present; whether
inferences drawn from the evidence are properly drawn; whether the
relevant principles of law are what you
thought them to be; whether
or not counsel’s argument is as well founded as it appeared to
be at the hearing (or the converse);
and so on’.
[13]
A reading of the judgment herein indicates that there are no reasons
furnished for the decision to convict the appellants in
the learned
magistrate’s judgment.
[1]
As
the Constitutional Court held in
Mphahlele
v First National Bank of SA Ltd
1999(2) SA 667 CC at para 12,
‘
There is no
express constitutional provision that requires Judges to furnish
reasons for their decisions. Nonetheless, in terms
of section 1 of
the Constitution, the rule of law is one of the founding values of
our democratic state, and the Judiciary is bound
by it. The rule of
law undoubtedly requires Judges not to act arbitrarily and to be
accountable. The manner in which they ordinarily
account for their
decisions is by furnishing reasons. This serves a number of purposes.
It explains to the parties, and to the
public at large which has an
interest in courts being open and transparent, why a case is decided
as it is. It is a discipline
which curbs arbitrary judicial
decisions. Then, too, it is essential for the appeal process,
enabling the losing party to take
an informed decision as to whether
or not to appeal or, where necessary, seek leave to appeal. It
assists the appeal court to decide
whether or not the order of the
lower court is correct. And finally, it provides guidance to the
public in respect of similar matters’.
This
was also emphasised recently by Bosielo JA in
S
v Mokela
[2]
in which he says the following:
‘……
Of
even greater significance is that it is only fair to every accused
person to know the reason why a court has taken a particular
decision, particularly where such a decision has adverse consequences
for such an accused person.
’
[14]
The learned magistrate also failed to evaluate the evidence in the
manner as set out in
S
v Chabalala
.
[3]
Heher
AJA had this to say about evaluation of evidence:
‘
the correct
approach is to weigh up all the elements which point towards the
guilt of the accused against all those which are indicative
of his
innocence, taking proper account of inherent strengths and
weaknesses, probabilities and improbabilities on both sides and,
having done so, to decide whether the balance weighs so heavily in
favour of the state as to exclude any reasonable doubt about
the
accused’s guilt. The result may prove that one scrap of
evidence or one defect in the case for either party (such as
the
failure to call a material witness concerning an identity parade) was
decisive but that can only be an ex post facto determination
and a
trial court (and counsel) should avoid the temptation to latch on to
one (apparently) obvious aspect without assessing it
in the context
of the full picture presented in evidence’.
If
the learned magistrate had exercised this approach, it would have
been apparent to her that the state had failed to discharge
the
onus
of proving the appellants’ guilt beyond a reasonable doubt. I
will demonstrate this later in his judgment.
[15]
Furthermore, the learned magistrate failed to make any credibility or
factual findings. She also failed to explain why she
rejected the
versions of the first and second appellants and favoured that of the
state. As it was held in
Van
Aswegen v De Clercq,
[4]
‘
[i]in
the absence of findings by the trial Judge on the merits of witnesses
to crucial incidents a court of appeal is, of course,
severely
handicapped. In such instances, therefore, we are to decide the
appeal on the record without regard to the findings. The
appeal court
must do its best on such material as it had before it.’ (see
Van
Awegen supra at 882B)
[16]
We also cannot proceed on the assumption that there was no
misdirection or irregularity in the process of reaching the decision
that was reached by the learned magistrate or assume that she had
cogent reasons for seemingly accepting the witnesses who implicated
the appellants. She ought to have had regard only to the question of
the
onus
of proof once all the relevant evidence had been examined to see
whether there was any doubt as to which version was acceptable.
[5]
[17]
I turn now to deal with the evidence before the court
aquo.
The
state relied on the evidence of a single witness, Mr Balraj, to prove
the threats made to him by the appellants and to prove
that payment
was demanded from him and made to the appellants. The court
aquo
was alive to this fact but surprisingly even though the learned
magistrate mentioned that this evidence must be treated with caution,
she merely concluded by saying that it just ended with: ‘caution
should not be allowed to displace reason
’
(page 350 at
line 18-20 of the appeal record). Nothing further was said about
that. She therefore did not identify and analyse every
feature of the
complainant’s evidence which may detract from the cogency of
single evidence. She also did not weigh up the
good qualities of his
evidence against all the factors which may diminish his
credibility.
[6]
[18]
It is trite that the evidence of a single witness must be clear and
satisfactory in all material respects. Furthermore, such
evidence
must be treated with caution. One of the safeguards in the exercise
of caution is corroboration. As it was held in
S
v Gentle,
[7]
’
by
corroboration is meant other evidence which supports the evidence of
the complainant which renders the evidence of the accused
less
probable, on the issues in dispute’. The issues in dispute
which needed corroboration in my view were the following:-
(a) Whether the
complainant was threatened with a minimum sentence of 15 years
imprisonment;
(b) Whether as a
result of the above threat the appellants extorted money from the
complainant for the release of the truck and
whether that payment was
made to the appellants.
[19]
I will deal first with whether the complainant’s evidence was
clear and satisfactory and revert later on in the judgment
on whether
there was any corroboration of the complainant’s evidence on
the issues in dispute. In my view, the complainant
was an appallingly
bad witness. His evidence ought to have been rejected as unreliable.
He contradicted himself on numerous occasions.
He contradicted
himself on what he said at the trial with what he had said in the
disciplinary hearing of the appellants held by
the South African
Police Services (SAPS).
[20]
In court
a quo
,
for instance, he testified that the first appellant told him that he
would get 15 years for business robbery yet in the disciplinary
hearing he said that the first appellant mentioned to him that if
convicted, he could face 15 years in jail. This is line with
what his
brother, Mr Ramjutten, testified to in his evidence in chief during
the trial that the second appellant told him that
he would get 15
years imprisonment if found guilty of business robbery. This, as put
to the witnesses and testified to by the appellants,
must have been
the warning that they gave to the complainant and his brother when
they were warning them of their constitutional
rights before they
questioned them on the business robbery charge.
[21]
There is nothing improbable about this more so because it was
conceded by Mr Balraj that the first appellant had suggested
to him
that his lawyer could be present during the interview as this was a
serious charge. It is therefore improbable that the
appellants, even
though they suggested to the complainant that his lawyer could be
present, would still threaten him with a sentence
of 15 years
imprisonment. It is highly probable that they advised him that
because the offence was serious and that if convicted
he could face
15 years imprisonment it was advisable for him to have his lawyer
present. On this issue, as there are contradictions
on the
complainant’s evidence and also nothing improbable about the
appellants’ version, the appellants ought to have
received a
benefit of the doubt.
[22]
The complainant contradicted himself on whether the money was in
respect of the business robbery and the possible 15 years
imprisonment or whether it was for the release of the truck. His
evidence in this regard was that Major Ramdass had told him that
they
were free to go after they had given their statements about what had
transpired ( even though there was a contradiction on
his part as to
whether the statement was about what transpired or had to do with
implicating Rosskruge). He accepted at some point
and this was also
the position at the disciplinary enquiry where he understood that
this meant that he was free to go and was no
longer facing 15 years
imprisonment. His explanation about the payment being for the release
of his truck is improbable and riddled
with contradictions.
[23]
I say this because whilst he maintained under cross-examination that
initially the payment was for his brother and his truck
to be
released, at the disciplinary hearing he testified that after he
signed the statement he was told that they were free to
go. ‘They’,
in this context was a reference to him, his brother and the driver.
It was for this reason that his
brother testified that after he
signed his statement, he waited outside the police station as he was
free to go. This must have
also meant that they were free to go with
the truck as it was part of the business robbery charge. If he was
free to go, which
he was, as Major Ramdass told him in front of the
appellants, then there was no need for any payment. If there was any
doubt he
ought to have checked with Major Ramdass, which he did not
do and could not offer any cogent explanation as to why he did not do
so.
[24]
Mr Balraj conceded later that his brother was no longer detained but
only the truck was impounded. In this aspect also his
version ought
to have been rejected outright as it was riddled with contradictions.
He was unable to answer when it was put to
him pertinently that the
only reason the truck was still hitched to the trailer was because
the driver told the first appellant
that he did not have the tool to
unhitch the trailer. The simple way of verifying this point would
have been for the State to call
the driver which it did not do. In my
view, it is probable that because the trailer could not be unhitched,
at that stage this
was the reason why the trailer was not taken at
the same time as when they left the police station.
[25]
With regard to the payment of R2500 Mr Balraj initially testified
that they (him and the first appellant) came to an agreement
that
they would meet at his garage to discuss the release of the truck. As
to why the discussion would be at the garage and not
at the police
station where the trailer was, was not explained. Whilst he later
contradicted this to say that it was the first
appellant who
suggested or directed that they meet at the garage so that he could
make a plan, the plan must have been about meeting
Mr Rosskruge as
put to the witnesses on behalf of the appellants. This was so
because, and as he did not see any other reason why,
he had no
dealings with them after Major Ramdass told him that the charges were
withdrawn. So, on the evidence it is not clear
to me who suggested
that they meet at the garage and for what purpose.
[26]
He contradicted himself on whether his brother knew about the R2500
payment because in his evidence during the trial he testified
that
his brother knew that he had to sort out the appellants and did not
know how much was involved. Yet, at the disciplinary hearing,
he
testified that his brother told him to get the R2500 to release the
truck. He later testified under cross examination during
the trial
that he did not know whether he told his brother about the R2500 on
his way to the garage or the police told him, implying
that his
brother had knowledge of the R2500 payment.
[27]
Yet when his brother testified he said that all he knew was that
something was going to be sorted out with Mr Balraj but he
had no
knowledge of what that was. It must have been accepted therefore that
his brother had no knowledge of the R2500 payment
or any payment for
that matter. It is highly likely that his evidence in this regard is
false because his evidence earlier was
that when the appellants
arrived at his garage, they still wanted him to pay R5000 and only
after he told them that that was too
much did they agree on R2500. So
his brother would not have known at all about the payment of R2500 as
it had not been discussed
at the stage when he suggested he could
have told his brother. In my view, he was trying very hard for his
brother to corroborate
him on this respect.
[28]
Mr Balraj conceded that whilst the CCTV footage showed the cashier,
Ms Mkhethi, handing over monies to Mr Saliman, there was
however, no
footage showing Mr Saliman handing over the money to him. He
testified that this was due to the fact that there was
no camera in
the area where monies were handed to him. He referred to this area as
‘a blind spot’. When asked why it
was not visible on CCTV
footage that he was carrying cash, his evidence was that that amount
of money comfortably fitted his hand.
However, he later conceded that
that was also not visible on the CCTV footage.
[29]
Mr Balraj further conceded that there was also no CCTV footage
showing him handing over the money to the appellants. His response
was that his CCTV was designed to detect shoplifters and not to trap
corrupt policemen. He denied that the appellants went to the
garage
after arrangements were made with him so that he could secure the
attendance of Mr Rosskruge in order for the appellants
to interview
him. In my view, on all of these aspects, his evidence was far from
clear, let alone satisfactory. It therefore fell
short of meeting the
requirements for the acceptance of evidence of a single witness.
[30]
This brings me to the issue about corroboration. There was not a
single thread of evidence that corroborated Mr Balraj’s
evidence either on the threat about the likelihood of 15 years
imprisonment or payment of R2500. In my view as his evidence fell
short of the requirements of being clear and satisfactory in all
material respects, it ought to have been corroborated to safeguard
any conviction. In the absence of that corroboration, the appellants
ought to have been discharged and acquitted as the state had
failed
to prove their guilt beyond a reasonable doubt. At the close of the
State’s case the learned magistrate refused an
application in
terms of
S 174
of the
Criminal Procedure Act S
1 of 1977 for their
discharge. She stated that she would furnish her reasons for doing so
at the end of the trial. At the end of
the trial and during the
judgment all she said was:
‘
I
know that I am not supposed to be telling anyone reasons for refusing
section 174.
It is discretional. I will exercise that right too:
(Page 344 at line 15-17). That was how she concluded that issue.
[31]
In my view, even if she had a discretion, which I do not believe was
the case, she ought to have given reasons for her refusal
of the
s174
application as per her undertaking to do so. This was yet another
failure on her part. It was for these reasons that we took the
view
that the guilt of the appellant had not been established beyond a
reasonable doubt and that they were in fact entitled to
an acquittal.
[32]
In my view, the judgment of the learned magistrate falls far short of
the minimum standards which can be reasonably expected
of a
magistrate in her position. A lot more be said about it but I choose
not to. Instead I am of the view that it is in the interests
of
justice that this judgment be referred to the President of the
Regional Court and the Magistrate’s Commission with the
copy of
the trial court’s judgment to enable the Commission to consider
this magistrate’s fitness and competence for
her to continue
presiding over matters in the Regional court.
SEEGOBIN
J
[1]
I have read the judgment prepared by my sister, Poyo Dlwati J, and
whilst I agree fully with her reasons why the appeal in this
matter
had to succeed, I wish to refer to two further authorities which, in
my view, are instructive insofar as the assessment
of evidence in a
criminal trial is concerned in order to decide ultimately whether the
State has, on the evidence led by it, proved
the guilt of an accused
person beyond a reasonable doubt.
[2]
The first is the matter of
S
v Shackwell
[8]
in which Brand AJA set out succinctly the approach to be followed:
“
Though
I am not persuaded that every one of these suggested inherent
probabilities can rightfully be describe as such I do not find
it
necessary to dwell on each of them in any detail. There is a more
fundamental reason why I do not agree with this line of reasoning
by
the Court
a
quo
.
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. On my reading of the judgment of the
Court
a
quo
its
reasoning lacks this final and crucial step. On this final enquiry I
consider the answer to be that, notwithstanding certain
improbabilities in the appellant’s version, the reasonable
possibility remains that the substance thereof may be true.”
[3]
As the judgment of the learned magistrate in the present matter
shows, in failing to closely assess and account for all the
evidence
(including that of the appellants) the learned magistrate failed to
consider ultimately whether the versions of the appellants
were
reasonably possibly true. It would seem to me that the learned
magistrate was content to simply rely on the evidence adduced
by the
State without considering the versions of the appellants at all. Had
the learned magistrate taken the trouble to analyse
all the evidence
before her, she would have found that the versions of the appellants
had a ring of truth about them. The learned
magistrate’s
failure in this regard, in my view, constituted a serious
misdirection on her part.
[4]
The second is the matter of
S
v Heslop
[9]
which provides ample authority for the proposition that an appeal
Court would be entitled to interfere with a trial Court’s
findings as to the weight to be attached to a witness’s
evidence and its ultimate conclusion based on those findings. In
particular this applies to the favourable credibility findings made
by a trial court which are clearly not borne out by the witness’s
evidence on record.
[5]
In the present matter, as already pointed out by my learned
colleague, the complainant, Mr Balraj, was a particularly bad witness
– he was not only an evasive witness but his version was also
riddled with inconsistencies and contradictions as pointed
out by my
colleague. The learned magistrate of course was quite oblivious to
them. The same criticism could justifiably also attach
to the
evidence of his brother, Mr Ramjutten.
[6]
All in all, we considered that there were serious shortcomings not
only in the State’s case but also in the manner in
which the
learned magistrate chose to approach the evidence. The failure to
analyse all the evidence before her resulted in a serious
miscarriage
of justice.
[7]
Finally, I endorse my colleague’s proposal that this judgment
and that of the court
a quo
be referred to the President of
the Regional Court and to the Magistrate’s Commission so as to
ensure that this type of injustice
does not repeat itself in the
future by the learned magistrate.
__________________
POYO
DLWATI J
I
agree
__________________
SEEGOBIN
J
APPEARANCES
Date
of Hearing
: 05 September 2017
Date
of Judgment
: 03 November 2017
Counsel
for Applicant : Mr A D Collingwood
Instructed
by
: Viren Singh Attorneys,
Notaries & Conveyancers Inc
c/o Singh
Attorneys
Counsel
Respondent : Mr Dunywa
Instructed
by
: Director of
Public Prosecutions, Pietermaritzburg
[1]
1999(2) SA 667 (CC), para
[12]
[2]
2012(1) SACR 431 SCA, para
[12]
[3]
2003(1) SACR 134 (SCA), para
[15]
[4]
1960(4) SA 875 (A) at 881 H
[5]
S v Frazenburg and Others
2004(1) SACR 182€ at 188 a-c
[6]
1971(3) SA 754(A)
[7]
2005(1) SACR 420 (SCA), para
[18]
[8]
2001(2) SACR 185 (SCA)
[9]
2007 (1) SACR 461
SCA