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[2016] ZANCHC 27
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du Plessis v S (CA&R85/2015) [2016] ZANCHC 27 (3 June 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
NO
Circulate
to Judges:
YES
Circulate
to Magistrates:
NO
Circulate
to Regional Magistrates:
NO
CASE
NO:
CA&R
85/2015
DATE
HEARD:
30/05/2016
DATE
DELIVERED:
03/06/2016
In
the matter between:
DAWID
CORNELIUS DU
PLESSIS
Appellant
and
THE
STATE
Respondent
Coram:
Olivier J
et
Phatshoane J
JUDGMENT
Olivier
J
[1.]
The
appellant was convicted in the Magistrate’s Court of the theft
of 24 sheep. The Magistrate then referred the matter
to the
Regional Court for sentencing. After concluding that the
proceedings in the Magistrate’s Court were in accordance
with
justice
[1]
the Regional
Magistrate sentenced the appellant to a fine of R30 000.00,
alternatively 2 years imprisonment, and to a further
5 years
imprisonment, conditionally suspended for a period of 5 years.
This appeal is against the conviction only.
[2.]
It
is trite that a court of appeal will not readily interfere with the
factual findings of a trial Court. This approach should
not,
however, be applied in such a way that it would “
render
appeals on fact illusory
”
[2]
.
[3.]
While
a trial court will obviously be in a better position to observe the
demeanour of a person as a witness
[3]
,
a court of appeal should not hesitate to interfere where it appears
that “
laudatory
epithets
(have been)
applied
by a trial Court when the record shows that their performance, judged
by the written word, was obviously far from satisfactory
”
[4]
.
[4.]
It was not in dispute
that 26 Dorper sheep, marked with a half-moon on the left ears, went
missing from the farm of the complainant,
Mr Kotze, in the period
between 5 December 2010 and 19 January 2011.
[5.]
Although the evidence
in this regard was far from satisfactory I am prepared to assume, for
purposes of this appeal, that Mr Frederick
Philander had been
involved in the theft of 24 of those sheep.
[6.]
Mr Philander appears to
have been employed, at least part-time, by the appellant and his
brother as a farm labourer. He was
raised by the appellant’s
family. After having lived with them for approximately 15 years
Mr Philander left, after
discord between himself, on the one hand,
and the appellant and his brother, on the other hand.
[7.]
Mr Philander testified
that on 9 January 2011 he accompanied the appellant to the farm where
the sheep were. On their way
there the appellant phoned one
Kelvin, who appeared to have been the appellant’s neighbouring
farmer, to bring the appellant
two containers of diesel.
According to Mr Philander he and the appellant went there in the
appellant’s green Isuzu
vehicle. The appellant broke two
locks and he then assisted the appellant in loading the 24 sheep onto
the vehicle.
They drove to a commonage, where they downloaded
the sheep and received the diesel from Kelvin. The next day he
assisted
the appellant in moving the sheep to a different area. This,
briefly, was the evidence of Mr Philander.
[8.]
The sheep were never
found in the possession of the appellant, and were apparently never
recovered. About a year later, when
Mr Philander was confronted
with various charges of stock theft, he made a statement in which he
admitted having been involved
in this theft, and in which he then
implicated the appellant on the above basis.
[9.]
The appellant pleaded
not guilty to the charge. He denied having stolen the
complainant’s sheep. The sole issue
was therefore simply
whether the appellant had indeed been involved in this theft, as
described by Mr Philander.
[10.]
Mr
Philander was quite clearly a single witness in respect of this
crucial issue. Moreover, he would clearly also on his own
version have been an accomplice. For both these reasons his
evidence had to be approached with caution
[5]
.
The Magistrate, with respect, appears to have paid mere lip service
to these cautionary rules.
[11.]
It was only in
cross-examination of Mr Philander that it for the first time appeared
that the relationship between him and the appellant
(and the
appellant’s brother) deteriorated at some stage after Mr
Philander had made some statement about a cow. It
was according
to him then that the appellant’s brother assaulted him and made
some video recording. There was also
discord about Mr
Philander’s use of the vehicle of the appellant’s
brother.
[12.]
Although Mr Philander
initially pretended that this problem had only been between him and
the appellant’s brother, he went
on to say that the appellant
had caused it by telling his brother lies.
[13.]
In his judgment the
Magistrate stated that Mr Philander had impressed him as a witness.
This is difficult to reconcile with
the Magistrate’s finding
that the evidence of Mr Philander was open for criticism and that he
had contradicted himself about
whether he had implicated the
appellant in this theft before or after their friendship ended.
[14.]
The Magistrate
described this contradiction as the only one of note. In my
view it was a material contradiction, because it
was the appellant’s
case that Mr Philander had falsely implicated him out of revenge, and
after their friendship had come
to an end. The undisputed
evidence of the appellant was that their friendship had ended at the
end of 2011. Mr Philander
made the statement, implicating the
appellant, in 2012.
[15.]
Mr Philander eventually
conceded, at least, that at the stage when he made the statement
incriminating the appellant, he did not
trust the appellant, which
would also correspond with the appellant’s evidence regarding
the end of their friendship.
[16.]
Mr Hollander, counsel
for the respondent, argued that Mr Philander’s problem had in
actual fact been caused by the appellant’s
brother and that, if
Mr Philander had wanted to falsely incriminate someone on a charge of
theft, one would have expected the appellant’s
brother to have
been the target.
[17.]
This argument loses
sight of Mr Philander’s complaint that the appellant had caused
the trouble between him and the appellant’s
brother, and that
the appellant had also been involved in the taking away of privileges
that Mr Philander had earlier enjoyed,
until Mr Philander eventually
left them and moved away.
[18.]
The Magistrate found
that the explanation for the delay between the time of the theft and
the making of the incriminating statement
was clearly that Mr
Philander had kept quiet to protect at least himself. This,
however, misses the real question, and that
is whether it was a
coincidence that it was only after the friendship between Mr
Philander and the appellant had come to an end,
that Mr Philander
decided to not only admit the theft of the complainant’s sheep,
but also to implicate the appellant in
the process.
[19.]
When
asked in cross-examination why he was not himself charged with this
theft, Mr Philander answered that he had been charged,
and that he
did not know whether the particular charge had been withdrawn against
him. This was also never cleared up by
the prosecutor.
Why would Mr Philander have contemplated the possibility of this
charge against him being withdrawn?
Could it be that he was
promised this or at least expected it, in return for his evidence
against the appellant? In
S
v Hlapezula and Others
[6]
it was held, at 440D, that “
various
considerations may lead
(an accomplice)
to
falsely implicate the accused, for example a desire to shield a
culprit or, particularly where he has not been sentenced, the
hope of
clemency
”.
Another possible motive could be “
to
obtain immunity for himself
”
[7]
.
[20.]
The
Magistrate found it unlikely that Mr Philander would have concocted a
story with so much detail, and the Magistrate made specific
reference
to the broken locks, the description of the stolen sheep and the fact
that tyre tracks and human tracks were observed
by the complainant
when the theft of the sheep was discovered. The Regional
Magistrate fell into the same trap in referring,
with apparent
approval, to the Magistrate’s finding that Mr Philander could
only have provided such detail if he had indeed
been involved in the
theft himself. This, however, is exactly why the evidence of an
accomplice should be approached with
caution. In
Hlapezula
[8]
it was held that an accomplice, “
by
reason of his inside knowledge … has a deceptive facility for
convincing description – his only fiction being the
substitution of the accused for the culprit
”.
[21.]
It
is precisely because of this that “
Corroboration
not implicating the accused but merely in regard to the details of
the crime is no guarantee of the truthfulness of
an accomplice, the
very fact of him being an accomplice enables him to furnish the Court
with details of the crime which is apt
to give the Court, if unwary,
the impression that he is in all respects a satisfactory witness
”
[9]
.
[22.]
Also
of concern is the fact that the Magistrate seemed to have rejected
the appellant’s version only because he regarded Mr
Philander’s
evidence as credible. Not a single aspect of the appellant’s
version and evidence was discussed in
the judgment, let alone
criticised. The Magistrate seems to have lost sight of the fact
that the test should be whether the
version of the accused person is
reasonably possible (not necessarily even probable
[10]
),
not whether the Magistrate actually believed it to be true.
“
Whether
I subjectively disbelieve him is, however, not the test. I need
not even reject the State case in order to acquit
him. I am
bound to acquit him if there exists a reasonable possibility that his
evidence may be true. Such is the nature
of the onus on the
State
”
[11]
.
[23.]
The
position is exacerbated by the unexplained failure of the prosecution
to present the evidence of Kelvin, or to at least tender
an
explanation for its decision not to call him as a witness
[12]
.
Mr Hollander argued that the reason may be that an admission of
having received two sheep from the appellant would have
incriminated
Kelvin on the charge of theft. This is speculation, because
there is no indication in the record that an attempt
had been made to
obtain a statement from Kelvin. In any event, the prosecution
had no hesitation in presenting the evidence
of Mr Philander, who had
on his own version been directly involved in the theft.
[24.]
The appellant bore no
onus, and therefore no duty to call Kelvin as a witness.
[25.]
Although there may have
been a suspicion that the appellant was guilty of the theft, there
was in my view at the very least ultimately
a reasonable possibility
that Mr Philander had falsely implicated the appellant out of
revenge.
[26.]
The following order is
therefore made:
THE
APPEAL SUCCEEDS AND THE CONVICTION AND SENTENCE ARE SET ASIDE
.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
I
concur.
______________________
V
M PHATSHOANE
JUDGE
NORTHERN
CAPE DIVISION
For the
Appellant: Adv. P. F. Pistorius
Instructed
by:
Elliott Maris Wilmans & Hay
For the Respondent:
Adv Q. H. Hollander
Office
of the Director of Public Prosecutions
[1]
Section
116(3)(a) of the
Criminal
Procedure Act
,
51 of 1977
[2]
RH v
DE
2014
(6) SA 436
(SCA) para [5]
[3]
Compare
Minister
of Safety & Security and Others v Craig and Others
2011 (1) SACR 469
(SCA) para [58]
[4]
S v
Heslop
2007
(1) SACR 461
(SCA) para [13]
[5]
Compare
Stevens
v S
[2005]
1 All SA 1
(SCA) para [17];
R
v Ncanana
1948 (4) SA 399
(A) at 405
[6]
1965 (4)
SA 439
(A)
[7]
S v
Van Vreden
1969
(2) SA 524
(N) at 531H
[8]
See
paragraph [19] and footnote 6 above.
[9]
S v
Van Vreden, supra
,
at 531 to 532; See also
S
v Wilson-Forbes
2015 JDR 0725 (WCC)
[10]
Compare
R
v Difford
1937 AD 370
at 373;
S
v Jaffer
1988 (2) SA 84
(C) at 88H - I
[11]
S v
Kubeka
1982
(1) SA 534
(W) at 537F – H; See also
S
v Shackell
2001 (2) SACR 185
(SCA), para [30];
S
v Abader
2010 (2) SACR 558 (WCC)
[12]
Compare
S
v Teixeira
,
1980 (3) SA 755
(A) at 763D – 764B