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[2007] ZASCA 127
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S v Scott-Crossley (677/06) [2007] ZASCA 127; 2008 (1) SA 404 (SCA); 2008 (1) SACR 223 (SCA) (28 September 2007)
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THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Case number : 677/06
Reportable
In the matter between :
MARK SCOTT-CROSSLEY
...........................
APPELLANT
and
THE STATE
...........................
RESPONDENT
CORAM : MTHIYANE, CLOETE
et
PONNAN JJA
HEARD : 20 AUGUST 2007
DELIVERED : 28 SEPTEMBER 2007
Summary: Criminal appeals ─ reassessment of
credibility of witnesses ─
corroboration ─ inference when version not put
in cross-examination ─
accomplice evidence.
Neutral citation: This judgment may be referred to as
Scott-Crossley v S
[2007] SCA 127 (RSA).
_________________________________________________________
JUDGMENT
THE COURT
/
THE COURT
:
[1] The appellant, Mr Mark Scott-Crossley, who was
accused 3, and one of his employees, Mr Simon Johan Mathebula,
accused 2, were
convicted by Maluleke J and assessors in the High
Court, Circuit Local Division for the Northern Circuit, sitting at
Phalaborwa.
The appellant was sentenced to life imprisonment, after
the trial judge found that there were no substantial and compelling
circumstances
justifying the imposition of a lesser sentence.
1
In respect of accused 2 substantial and compelling
circumstances were found to be present and he was sentenced to 15
years imprisonment,
three of which were suspended on certain
conditions. Accused 1, Mr Richard Doctor Mathebula, also employed by
the appellant at the
time, took ill during the trial and a separation
of his trial was ordered at the State’s request. The appeal,
which is with
the leave of this court, is against the appellant’s
conviction. There is no appeal by accused 2.
[2] The appellant’s conviction arose from an
incident on the appellant’s farm on 31 January 2004. On the day
in question
Mr Nelson Oupa Chisale (‘the deceased’), a
former employee of the appellant, arrived on the farm to collect pots
which
he claimed he had left behind when the appellant dismissed him
from his employ in November 2003. There is a dispute as to the time
of the deceased’s arrival ─ accused 1 said he arrived at
09:00; Mr Forget Ndhlovu, the security guard on duty at the
entrance
gate which leads to the appellant’s farm, said it was at 11:00.
Nothing turns on this discrepancy. Upon his arrival
the deceased was
confronted first by accused 1 and shortly thereafter by accused 2.
They disputed that he had left any pots on the
farm. Unimpressed by
the deceased’s persistence they assaulted him with pangas,
apprehended him and tied him to a tree. Ms
Thuli Siwela, employed by
the appellant at the farm as a domestic worker, witnessed part of the
assault and the tying up of the deceased
from a distance.
[3] At about 13:00 the appellant arrived on the scene
with his painting supervisor,
Mr Robert Mnisi, and found the deceased still tied up,
injured and bleeding. He had two wounds to his head and it must be
accepted,
for reasons which we shall give later, that he also had an
open wound at the base of his neck. The appellant asked the deceased
why
he had come to the farm. Instead of rendering assistance, he,
too, became aggressive. According to the State witnesses he kicked
the deceased once or twice on the side of his face and then asked his
son, Chezrea, to fetch his pellet gun from the house. His son
returned with the gun and he pointed it at the deceased. Accused 1,
accused 2 and Siwela then asked the appellant not to shoot. The
appellant denied that he had kicked, or pointed the gun, at the
deceased. He said that he had merely threatened the deceased that
should he return, he would be waiting for him with the gun.
[4] The appellant then left the scene with Chezrea. He
dropped Mnisi off at the gate and proceeded to Matumi Lodge where he
had to
attend a parents’ meeting at 14:00. Accused 1, accused 2
and Siwela remained on the farm. Before leaving the farm the
appellant
told Siwela that she should also leave.
[5] It was common cause that the appellant, Chezrea and
Mnisi returned to the farm later that night. Whether Mnisi did so in
the interim
was in dispute.The appellant’s version is the
following. When he left the lodge he noted several missed calls to
his cell phone
from Mnisi. He then put a call through to Mnisi and
the latter, who sounded rather agitated, reported that there had been
a ‘f…
up’ on the farm. Mnisi did not elaborate as
to what had happened. The appellant then hastily drove to the farm
and found Mnisi
at the gate. He picked him up and they proceeded to
where he had last seen the deceased tied to a tree. But the deceased
was no longer
there. The deceased had been removed to a shower room
where he found him lying on the floor. The appellant felt for a
pulse; there
was none. Turning to Mnisi, he asked: ‘What now?’
Mnisi then suggested that they dispose of the deceased’s body
either by throwing it over the cliffs at Lydenburg or into a lion
enclosure at Mokwalo White Lion Camp. Implying that there would
be no
evidence against them if the body was not found, Mnisi declared: ‘No
body, no murder’. Mnisi threatened that if
the appellant did
not agree to the plan they, meaning accused 1, accused 2 and himself,
would implicate the appellant in the murder,
and get the local
community to turn against him and his family. The appellant said that
he felt compelled to agree to Mnisi’s
suggestion. He then
transported the deceased’s body in his bakkie accompanied by
accused 1 and Mnisi and the three of them
assisted one another in
throwing it to the lions. The appellant admitted that before this was
done he had cut the cord tying the
deceased’s hands together
and that thereafter the cord was thrown under a bridge at Hoedspruit.
[6] The crucial issue in the appeal is whether the
deceased was alive or not when he was thrown into the lion camp.
According to the
appellant he returned to the farm at 22:00 whereas
the security guard said he arrived at 20:13. Again nothing turns on
this disparity.
If the times given by the witness Ndhlovu are
accepted (11:00 and 20:00) more than nine hours would have elapsed
from the time the
deceased was injured up to the time he was taken to
the lion camp. The appellant’s case is that the deceased had
already died
before he arrived back at the farm later that night and
that the cause of death must have been the injuries inflicted by
accused
1 and 2 earlier that morning. The onus was on the State to
establish beyond reasonable doubt that the deceased was still alive
when
he was thrown into the lion camp. If a reasonable possibility
exists that the appellant’s version is true he was entitled to
be acquitted on the charge of murder. The appellant argued that the
State failed to discharge this onus.
[7] The trial court found that there was ‘abundant
direct credible evidence that the deceased was alive when he was
conveyed
to and thrown to the lions’. On appeal the State
sought to support this conclusion by relying principally on the
evidence of
Mnisi and to a lesser extent on the evidence of accused 2
as also accused 1’s statement to the police. We shall deal
first
with the evidence of Mnisi. Mnisi was the only witness called
by the State regarding the events on the farm that fateful evening.
Consequently the cautionary rule relating to the evidence of single
witnesses applies to his evidence. Mnisi was also an accomplice
who
was warned in terms of the provisions of s 204 of the Criminal
Procedure Act. The cautionary rule applying to accomplices was
stated
as follows by Holmes JA in
S v Hlapezula &
Others
:
2
‘
It is well settled that the
testimony of an accomplice requires particular scrutiny because of
the cumulative effect of the following
factors. First, he is a
self-confessed criminal. Second, various considerations may lead him
falsely to implicate the accused, for
example, a desire to shield a
culprit or, particularly where he has not been sentenced, the hope of
clemency. Third, by reason of
his inside knowledge, he has a
deceptive facility for convincing description ─ his only
fiction being the substitution of the
accused for the culprit.
Accordingly, even where sec. 257 of the Code has been satisfied,
there has grown up a cautionary rule of
practice requiring (
a
)
recognition by the trial Court of the foregoing dangers, and (
b
)
the safeguard of some factor reducing the risk of a wrong conviction,
such as corroboration implicating the accused in the commission
of
the offence, or the absence of gainsaying evidence from him, or his
mendacity as a witness, or the implication by the accomplice
of
someone near and dear to him; see in particular
R
v Ncanana
,
1948 (4)
SA 399
(AD) at pp. 405-6;
R
v Gumede
,
1949 (3)
SA 749
(AD) at p. 758;
R
v Nqamtweni
1959
(1) SA 894
(AD) at pp. 897G-898D. Satisfaction of the cautionary rule
does not necessarily warrant a conviction, for the ultimate
requirement
is proof beyond reasonable doubt, and this depends upon
an appraisal of all the evidence and the degree of the safeguard
aforementioned.’
[8] What constitutes corroboration was set out in
S
v Gentle:
3
‘
It
must be emphasised immediately that by corroboration is meant other
evidence which supports the evidence of the complainant, and
which
renders the evidence of the accused less probable,
on
the issues in dispute
4
(cf
R
v W
1949
(3) SA 772
(A) at 778-9).’
Although the corroborative evidence must come from a
source independent of the witness whose evidence is sought to be
corroborated,
the evidence of another accomplice can provide such
corroboration:
S v Avon Bottle Store (Pty)
Ltd
;
5
S v Hlapezula
.
6
[9] The appellant argued that the trial court erred in
its assessment of the evidence of Mnisi. In support of this argument
counsel
for the appellant referred to a series of alleged
misdirections which would justify this court on appeal in intervening
and reassessing
the credibility of Mnisi and the other witnesses.
Counsel argued that Mnisi and accused 2 contradicted themselves and
each other
and that these contradictions were disregarded by the
trial court. The further submission was that the trial court
incorrectly relied
on the extra-curial statements of accused 1 and 2.
[10] It is settled law that in the absence of
demonstrable and material misdirection a trial court’s findings
of fact are presumed
to be correct and that they will only be
disregarded on appeal if the recorded evidence shows them to be
clearly wrong.
7
[11] It is against this background that the findings of
the court below must be considered. The court found Mnisi to be a
‘credible
and truthful’ witness. The importance of the
‘numerous discrepancies’ the court itself found in his
evidence seems
however to have escaped the learned judge. They were
simply dismissed as ‘minor and non-material matters’.
Three are
important.
[12] In his statement Mnisi said that the appellant
pointed the pellet gun at him and accused 1 when he told the two of
them to untie
the deceased and put the latter in the bakkie. That of
course is inconsistent with the appellant’s version that
disposal of
the body was Mnisi’s idea. Mnisi made no mention of
the pellet gun in his evidence in chief. His explanation for this
omission
appears from the following passage in his evidence under
cross-examination:
‘
No
you never made mention of a rifle there at that time when you gave
evidence when my learned friend for the State asked you to explain
what happened. --- Yes, I at that stage responded to questions put to
me by the advocate for the State. I only responded to the questions
and stopped.’
The explanation does not
bear scrutiny. The prosecutrix repeatedly attempted to elicit the
evidence, as appears from the following
passages in the record:
‘
Did
anything happen from there? --- He [the appellant] then forced me and
accused 1 to load him onto the vehicle.
Why are
you saying he forced you? --- The way he spoke to us: “Load him
onto the vehicle quickly”.
And where is the threat [in what he]
said? ---The threat was that if we do not load him onto the vehicle,
he would injure us also.
We then loaded him.
. . .
Yes, the words that were coming from Mr
Scott-Crossley. --- He said: “Load this person onto the
vehicle. If you do not do that,
I will also injure you”.
And did he indicate as to how he was
going to hurt you? --- No, he did not.’
The significance of this contradiction is that Mnisi’s
evidence that the appellant threatened him is unreliable and in the
absence
of a threat, Mnisi would appear to have been a willing
participant ─ which supports the appellant’s version.
[13] More important was the contradiction in Mnisi’s
evidence about whether the deceased had been gagged. In his evidence
in
chief Mnisi said he did not see a piece of cloth in the deceased’s
mouth. This was in response to a leading question by the
prosecutrix.
The relevant passage in the record reads:
‘
Now
there is evidence before this court to the effect that after he [the
deceased] was loaded into the bakkie, some cloth was put
in his
mouth. Did you see that or did you not see? --- No, I did not see
that.’
No such evidence had been led at that time. During
cross-examination the witness changed his version. The relevant
portion of his
evidence reads:
‘
Did
you actually see Accused 3 put the cloth into the mouth of Nelson
[the deceased]? --- That is true.’
The witness’ explanation for the contradiction
which is demonstrably untrue was:
‘
Before
I respond to that pertaining to the cloth, another question was put
and I responded to that.’
Ultimately the witness admitted that he had told a lie
in his evidence in chief; but then he immediately withdrew the
admission. This
appears from the following passage in
cross-examination:
‘
Yes,
what I am trying to find out: you told an untruth yesterday when you
said you did not see any cloth in this man’s mouth.
--- Yes.
So you are saying you lied yesterday? ---
No, I did not lie yesterday. I was telling what happened. He put the
cloth into the deceased’s
mouth.’
In our view the contradiction just referred to is
material. It bears directly on the question whether the deceased was
alive or not.
To state the obvious: there is no point in gagging a
dead body. In addition Mnisi testified that when the deceased was
thrown into
the lion enclosure he heard him scream: ‘Yoo’.
In that regard he was a single witness. The contradiction concerning
the
gag casts doubt on whether he could have heard the scream and
whether the deceased could have screamed at all if he was gagged. All
of this was glossed over by the trial court.
[14] The ‘evidence’ referred to by the
prosecutrix in the leading question put to Mnisi came from accused 1.
It was he
who said in a statement made to the police that a cloth was
put in the deceased’s mouth and the deceased was told not to
scream.
The statement was admitted in evidence in terms of
s 3
of the
Law of Evidence Amendment Act, 1988
and in the light of the judgment
of this court in
S v Ndhlovu
.
8
For purposes of this judgment we will assume, without
deciding, that the statement was properly admitted in evidence.
Notwithstanding
its admission it remained untested. Its contents
should have been carefully scrutinised in the light of the other
evidence to eliminate
prejudice to the appellant and the other
accused. The court found that Mnisi’s evidence was corroborated
by accused 1 in respect
of the mouth gag. The difficulty with this
conclusion is that Mnisi gave two conflicting versions in this
regard. The conclusion
reached by the trial court is flawed.
[15] The third important contradiction in Mnisi’s
evidence was this. In his cross-examination he described in detail
how the
deceased was tied when he and the appellant first arrived at
the farm. He said ‘one arm was tied to a tree and the other one
was tied to an aloe tree’. He demonstrated that the deceased’s
arms were stretched out more or less horizontal with his
shoulders.
He said that the deceased’s legs were also ‘tied like his
arms. They were also stretched out’ ie (as
he confirmed) apart.
He had already said in his evidence in chief that when he returned
later that night with the appellant the deceased
‘was still
tied up the way in the same position as before’. But when he
was questioned by the court his version changed.
(This is now the
second version of how the deceased was tied.) He said that when the
deceased was placed on the bakkie he was untied
from the tree, but
his legs and feet remained tied together. That version is impossible
if he had initially been tied spreadeagled
which was his original
version. During further questioning by the court his version as to
the tying changed again (a third version).
This time he said that
when the deceased was loaded onto the van the appellant retied his
hands and feet to ‘prevent him not
to move or alight from the
moving vehicle’.
In response to further
questioning by counsel as to what he had said in his statement
concerning the alleged tying of the deceased
by the appellant, he
reverted to one of the versions he had given in answer to questions
by the court (the second version):
‘
And
it [the tying by the appellant] does not appear in your statement.
--- The police official asked me who took down the statement
as to
whether he was still tied when he was loaded onto the vehicle and I
said yes. That is why it appears on the statement.’
But that was not the version which appeared in the
statement. In the statement he said:
‘
He told Doctor and myself that
we must untie Nelson and put him in the bakkie. On [
sic
]
that time he was pointing that rifle at us. We untie him and we put
him in the bakkie. He assisted us to put him in the bakkie.
He said
we must get inside too. He drove until [
sic
]
to the gate where he instructed the security to open the gate.’
Counsel for the appellant then put what was probably the
final nail in the coffin by asking:
‘
Yes,
but you did not tell his lordship and learned assessors that accused
3 [the appellant] retied him after he was put on the bakkie.
--- Yes,
I did not mention that yesterday.’
[16] As a basis for dismissing the contradictions in
Mnisi’s evidence as ‘minor and non-material’ the
court relied
on the judgment of this court in
S
v Mkohle
.
9
In that case it was said
10
that contradictions
per se
do not lead to the rejection of a witness’
evidence; they may be indicative of an error made by a witness and
not every error
made by a witness affects his credibility; and in
each case the trier of fact has to make an evaluation taking into
account such
matters as the nature of the contradictions, their
number and importance and the bearing on other parts of the evidence.
But in that
matter Nestadt JA was concerned with discrepancies
between evidence of several witnesses on minor issues. The point is
illustrated
in the following passage in the judgment (at 98d-f):
‘
It
is true that Clifford and Gloria contradict each other. Whilst
Clifford stated that after the shooting he and Gloria walked away,
Gloria’s evidence was that the two of them had run away.
Clifford said that appellant held his gun in his left hand but Gloria
said that it was in his right hand. Clifford and Gloria testified
that appellant struck Nomute because of the manner in which she
had
spoken to Clifford, Nomute’s explanation was that appellant was
angry because she was out so late (which version corresponded
with
that of appellant). There was also conflicting evidence as to whether
appellant was carrying a rubber, or indeed any, baton.’
Nestadt JA said
11
that in his view ‘no fault can be found with [the
trial judge’s] conclusion that what inconsistencies and
differences
there were, were “of a relatively minor nature and
the sort of thing to be expected from honest but imperfect
recollection,
observation and reconstruction”.’ The same
cannot be said of Mnisi’s evidence. In our view
Mkohle
was misapplied by the trial court.
[17] The trial court erred in another important respect.
It found Mnisi to be reliable by reason of the fact that his evidence
was
consistent with the statement he made to the police. The court’s
reliance on Mnisi’s previous statement was clearly wrong.
The
general rule is that a witness’ previous consistent statement
has no probative value:
R v Manyana
;
12
R v M
;
13
R v Rose
;
14
S v Mkohle
.
15
[18] The trial court further found that:
‘
It is strikingly significant
that Mnisi is corroborated by accused 3 on his evidence that the
deceased was tied up when he was conveyed
to Mokwalo White Lion camp
and that accused 3 used his pocket knife to cut wires with which the
deceased was tied up before throwing
him into the lion camp.’
The contradictions in Mnisi’s evidence in regard
to how, when and by whom the deceased came to be tied up, were
ignored. Furthermore,
the fact that the version of an accused
coincides with that of a State witness on a particular point does not
provide corroboration
for the latter’s evidence; we have
already referred to what was said in
S v
Gentle
in para 8 above. Matters which are
common cause between the State and the accused cannot provide
corroboration for matters in dispute
─ otherwise for example
the fact that an accused in a rape case confirmed that he had had
sexual intercourse with the complainant
could be taken as
corroboration of the latter’s version that he had done so
without consent, which is plainly absurd. It is
convenient to remark
at this stage that cutting off of the wire binding the deceased’s
wrists at the lion camp by the appellant
and the disposal thereof by
accused 1 at the appellant’s instance, does not by itself lead
to an inference that the appellant
killed the deceased. It is equally
consistent with an intention to cover up the crime: a dead body with
bound hands in a lion enclosure
would inevitably excite suspicion.
[19] Notwithstanding all the contradictions to which we
have referred Mnisi was found to be a ‘credible and truthful’
witness. That conclusion was clearly wrong.
[20] The State on appeal also relied on the evidence of
accused 2 on the question of whether the deceased was alive or not
when he
was removed from the farm. The simplistic argument advanced
by the State was that Mnisi and accused 2 corroborated each other on
the fact that the deceased was still alive when the appellant
returned to the farm on the night in question. But there are
fundamental
differences between the evidence of accused 2 and that of
Mnisi. We have already referred to accused 2’s version that at
some
stage during the appellant’s absence the deceased
complained that he was feeling cold whereupon Mnisi and accused 1
untied
him from the tree, carried him to the shower room and locked
him in by tying the door with an electric cord from the outside.
Accused
2 also said that Mnisi returned to the farm with the
appellant at 20:30. He continued that when the shower room door was
opened by
the appellant the deceased walked out whereupon accused 1,
Mnisi and the appellant tied him up. Accused 2 therefore corroborates
the version of the appellant to the extent that the deceased was in
the shower room when the appellant returned. But the version
that the
deceased walked out of the shower room is difficult to accept in the
light of the severe injuries that the deceased had
sustained. By then
the deceased would have been bleeding for more than 9 hours (from
11:00 when he was assaulted with pangas by accused
1 and 2 until
20:30 when accused 2 says Mnisi and the appellant arrived). It is
obvious why accused 2 would say that the deceased
had been alive when
the appellant returned with Mnisi: it was he and accused 1 who had
severely assaulted the deceased and it suited
him to pass the blame
for the deceased’s death to someone else. The court reasoned as
follows in respect of accused 2’s
version:
‘
Accused
2’s evidence is that the deceased was placed in a shower room,
untied and locked up by tying the door earlier that evening
and that
when accused 3 and Mnisi came back at about 20:30 the deceased walked
out of the shower room and was then tied up by accused
1, Robert
Mnisi and accused 3. Mnisi’s version is that the deceased was
still tied up at the tree when he and accused 3 came
back at 20:30.
Accused 3’s version is that the deceased was lying dead in the
shower room when he returned with Robert Mnisi.
On a consideration of
all the evidence, the evidence which is credible and reliable on this
matter is that contained in paragraph
4 of the statement by accused 1
(exhibit “D” above). This is consistent with the credible
evidence of Robert Mnisi.’
Mnisi’s evidence, as we have attempted to show in
some detail, was anything but credible. No satisfactory reason is
given by
the court as to why the statement of accused 1 should be
regarded as ‘credible and reliable’ ─ as we have
pointed
out already, it was untested in cross-examination.
[21] Mnisi and accused 2 also differed as to what
happened on the farm while the appellant was at Matumi Lodge.
According to Mnisi
he only returned to the farm with the appellant
that evening after 20:00. Both accused 1 (in his statement) and
accused 2 said Mnisi
had also been on the farm during the afternoon.
Accused 2 said at a certain stage the deceased complained that he was
feeling cold.
Accused 1 and Mnisi then untied the deceased and
carried him to the shower room. This version was rejected by the
court on the basis
that it was not put to Mnisi and was not mentioned
by accused 2 in his evidence in chief. What is significant however is
that accused
also said that Mnisi was on the farm during the
appellant’s absence. If this is true the question is: why was
he there and
why did he himself not mention it? Accused 2 said he saw
Mnisi changing positions in the yard trying to get a signal,
apparently
in order to phone from his cell phone. At one stage he saw
him climbing on the roof. If this is true it tends to corroborate the
appellant’s version ─ which Mnisi denied ─ that
before he returned to the farm he had received missed calls from
Mnisi. It is true that Mnisi’s return to the farm during the
appellant’s absence only came to light after Mnisi had given
evidence. But there was no reason not to recall him to clarify the
issue.
[22] We turn to consider the appellant’s version.
The court rejected it out of hand. It was the appellant’s
version, supported
by a forensic pathologist, Dr L Wagner, that the
deceased had died from injuries inflicted by accused 1 and 2 before
he returned
to the farm on the night in question. It is not necessary
to deal with Dr Wagner’s evidence. It is not readily apparent
from
the record as to why the appellant’s evidence was
rejected. The record does not show him to have been a poor witness.
He did
not contradict himself and the trial court in its detailed
judgment made no reference to any contradictions or inconsistencies
when
evaluating his evidence. The court did find it improbable that
Mnisi would have threatened the appellant. We do find this evidence
somewhat improbable. But we cannot agree with the trial court’s
reasoning for rejecting the appellant’s version on this
point.
The court referred to the appellant’s evidence that Mnisi had
suggested that the body be thrown off the cliffs at Lydenburg
or into
the enclosure at the lion camp, and continued:
‘
Accused
3 states that he on his own, took the decision to take the body to
Mokwalo White Lion camp. His reason for this election was
that it was
much nearer to go to Mokwalo than to Lydenburg particularly since
there was a greater risk of meeting with a police road
block if they
went to Lydenburg. This was an incredible piece of evidence in the
light of the evidence by accused 3 that he felt
seriously threatened
by Mnisi and acted under compulsion when he conveyed the dead body of
the deceased to Mokwalo. One would have
expected that he would have
chosen the route that would increase the prospect of meeting up with
the police to extricate him from
the compulsion.’
But meeting up with the police was the last thing that
the appellant would have wanted, on his version. This would not have
‘extricated
him from the compulsion’ ─ it would
have brought about the very consequence with which (according to him)
Mnisi had threatened
him and which he wanted to avoid ─ namely,
discovery of the body, in which case Mnisi and the other two accused
would have
implicated him in the murder and turned the community
against him.
[23] The appellant must have appreciated that it would
have fallen to him, not his employees, to explain the presence of a
dead body
on his bakkie or, if it had not been moved, on his farm. As
a lay person, given his earlier inaction or, on the State’s
version,
his assault on the deceased, and the deceased’s
subsequent death on his farm, he may well have felt at least morally
blameworthy
for, if not complicit in, the deceased’s death. It
must moreover be appreciated that the immediacy of the crisis offered
him
little opportunity for pause and careful reflection. Against that
backdrop and from his perspective, it would hardly have seemed
likely
that any explanation proffered by him would be acceptable. It is
accordingly not difficult to understand him being dragooned
into
disposing of the deceased’s body. Nevertheless, the version of
the appellant that it was Mnisi ─ who played no part
in the
initial assault on the deceased ─ who threatened him, remains
somewhat improbable.
[24] On the other hand the version of Mnisi that he was
threatened and forced to transport the body is unimpressive. We have
already
discussed the difficulties with Mnisi’s evidence in
regard to the presence or absence of the pellet gun, before the
deceased
was conveyed from the farm. Nor did the trial court identify
or list those alleged threats ─ as it did with the other
factors
─ as one of the facts found proved against the
appellant.
[25] The trial court said:
‘
It
is a known fact that in general the nature of the relationship
between farm workers and farm employees is characterised by docile
submissiveness on the part of the servant and a domineering and
overbearing attitude on the part of the master. The court has had
the
opportunity to observe the employees as they testified. We are
satisfied that they are all typical farm workers.’
But accused 1 did not testify. In addition the evidence
was that when the appellant kicked the deceased and pointed a pellet
gun at
him after his arrival on the scene, Mnisi, accused 1 and 2 and
Siwela were anything but docile and submissive. They took it upon
themselves to remonstrate with the appellant. They told him not to
shoot and he stopped. It also appears that there was a close
relationship
between Mnisi and the appellant. From the record, at any
rate, he appears to have been the appellant’s trusted
lieutenant.
They addressed each other by their first names: the
appellant called Mnisi ‘Rob’ and he called the appellant
‘Mark’.
A further example of their closeness is to be
found in the evidence of accused 2 that during the fatal evening
Mnisi bought beers
and invited the appellant to have one with him.
The above discussion illustrates the danger of stereotyping which may
result in unfair
and unwarranted generalisations being made. Such
generalisations are to be avoided in judicial reasoning as they may
result in a
miscarriage of justice. The remarks made by the court
concerning the relationship between farmers and farm employees was
not justified
in this case and is a further misdirection. This of
course does not mean that no farm workers are submissive to their
employers.
But the evidence in the record does not establish that
such was the case here.
[26] The court
a quo
held against the appellant the fact that his full
version as to everything that had transpired on the day in question
was not put
to certain State witnesses. The court reasoned:
‘
At
the stage that the version of accused 3 was put to Mnisi for the
first time as aforestated, the following witnesses on the facts
had
already testified and were cross-examined: Forget Ndlovu, Sergeant
Ferreira, Zodwa Mathebula and Thuli Siwela. Accordingly the
case or
version of accused 3 was not put to these witnesses. The principle as
stated in
S v Van As
1991 (2) SACR 74
(W) is that
the failure of the accused to put his version or case to state
witnesses will in an appropriate case justify an adverse
inference
being drawn against such an accused when assessing or evaluating the
credibility of his version.’
But it is not necessary for an accused’s version
to be put in all its detail to every witness who takes the stand to
give evidence
for the State. The limits of the obligation to put the
defence version to State witnesses appear from the following passage
in Phipson,
Evidence
(7
th
ed p 460) quoted in
R v M
:
16
‘
As
a rule a party should put to each of his opponent’s witnesses
in turn
so much of
his own case as concerns that particular witness
,
17
or in which he had a share. .
. . If he asks no questions he will, in England, though not perhaps
in Ireland, generally be taken to
accept the witness’s account.
. . . Moreover, where it is intended to suggest that the witness is
not speaking the truth upon
a particular point, his attention must
first be directed to the fact by cross-examination, so that he may
have an opportunity of
explanation. . . . Failure to cross-examine,
however, will not always amount to an acceptance of the witness’s
testimony, e.g.
if the witness has had notice to the contrary
beforehand, or the story is itself of an incredible or romancing
character. . . ‘.
It must also be emphasised that the failure to put a
version, even where it should have been put, does not necessarily
warrant an
inference that the accused’s version is a recent
fabrication. The words ‘in an appropriate case’ taken by
the trial
judge from
S v Van As
are
important. As Davis AJA said of the passage in Phipson just quoted:
‘
These
remarks are not intended to lay down any inflexible rules even in
civil cases, and in a criminal case still greater latitude
should
usually be allowed.’
The learned judge went on to say:
18
‘
That
at that stage the girls should have been cross-examined I have no
doubt; indeed, I have difficulty in imagining why this was
not done.
Whatever the reason it was certainly unfortunate that he [the
attorney for the accused] did not do so. But in the circumstances
of
this case I am unable to draw any inference adverse to the accused
from his failure. When Lydia was recalled it must again be
said that
he should have taken advantage of the opportunity to cross-examine;
but then it is only fair to say that the prosecutor,
or at least the
magistrate, should have put the story to her at that stage. And he
might well also have recalled the complainant;
compare
Rex
v. Filanius
(1916
T.P.D. 415
at p. 418), per MASON, J. The learned Judge, who delivered
the judgment of the Court
a
quo
, gave a number
of points on which “severe criticism can be directed to the
evidence of the appellant (the accused) and his
witness (Campher)”.
The first is the failure to put the defence case to the two girls;
this he describes as “most significant”.
But significant
of what? Significant, as I would suggest under the circumstances of
this particular case, of nothing but an error
of judgment on the part
of the attorney.’
The adverse inference drawn by the court against the
appellant for the failure to put the full defence version to the
witness Ndhlovu
was not justified and a misdirection. He was at no
stage at the scene on the farm. The same applies to the evidence of
Siwela ─
she did not testify on the events which occurred on
that fatal night as she was not present, having left shortly after
13:00 ─
and to the other witnesses mentioned in the judgment of
the trial court, who were never at the farm on the day in question.
[27] Given the nature and severity of the injuries
sustained by the deceased in the assault, and the period of time that
elapsed between
the infliction of those injuries and the appellant’s
return to the farm that night, the appellant’s version that the
deceased was already dead when he returned is in our view not
improbable and ought not to have been rejected by the court. Although
the court mentioned the injuries, it does not appear to have
considered their significance in relation to the question whether the
deceased was still alive when the appellant returned. The court
accepted the word of accused 1 (in his statement) and 2 that the
deceased was bleeding ‘moderately’ earlier in the day
after they had assaulted him. But they had every reason to minimise
the severity of the wounds they themselves had inflicted. Siwela also
said that the deceased was bleeding ‘moderately’
from the
head injuries. But she was viewing the whole scene from a distance.
It is therefore Mnisi who provides more reliable evidence
as to the
wound on the neck. Yet despite its general acceptance of Mnisi’s
evidence, the trial court did not accept what he
said on that point.
Neither the spontaneous observation made by Mnisi in his evidence in
chief, confirmed in cross-examination, that
blood oozed from the neck
wound when the deceased was breathing, which corroborated the
appellant’s version on this point,
nor his evidence (also in
chief) that when (according to him) the appellant pointed the firearm
at the deceased, the latter was unable
to say anything because he was
injured, made any impression on the court. Nor was consideration
given to the evidence of accused
2 that at a certain point in time
during the appellant’s absence the deceased complained of
feeling cold (on a hot summer’s
day in Phalaborwa) and accused
1 and Mnisi carried him to the shower room.
[28] At the end of the day what the trial court was
faced with was a statement by an accomplice, accused 1, which was
untested in
cross-examination and oral evidence of two other
accomplices, Mnisi and accused 2, who were demonstrably unreliable
and who contradicted
each other in fundamental respects. On the other
hand there was the evidence of the appellant which was somewhat
improbable as to
the alleged threat made by Mnisi but otherwise not
susceptible to any legitimate criticism. The improbability in the
appellant’s
evidence, such as it is, is not sufficient to carry
the day for the State. As Brand JA said in S v Shackell:
19
‘
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.’
The conclusion is unavoidable that the appellant was
wrongly convicted of murder.
[29] There can be no question however that the appellant
participated in the concealment of the crime of murder and thus made
himself
guilty of being an accessory after the fact to that crime. He
transported the body of the deceased in his vehicle and assisted in
disposing of it at the lion camp so as to enable accused 1 and 2 to
evade the consequences of their crime. In the circumstances the
appellant should have been convicted of being an accessory after the
fact to murder. This was correctly conceded by counsel for the
appellant during argument before us. Counsel for the State asked for
no conviction other than one of being an accessory after the
fact to
murder to be substituted in the event that this court found that the
murder charge had not been proved.
[30] Before dealing with the question of sentence there
is one matter on which we unfortunately feel it is our duty to
comment. During
re-examination of the appellant the trial judge
referred to the following passage in the appellant’s affidavit
in support of
his bail application:
‘
I
am advised by my attorney that all STR DNA results and comparisons
between various individuals and human remains discovered at the
Mokwalo Nature Reserve [ie the lion camp] are negative. Therefore the
identity of the deceased could not be established through any
DNA
analysing system at the forensic science laboratory of the South
African Police. Due to the fact that the relevant documentation
from
the Department of Home Affairs regarding the identity of the deceased
is absent from the police docket, and the fact that the
DNA test
results could not identify the deceased, the identity of the deceased
is not proven beyond reasonable doubt.’
The trial judge then questioned the appellant as
follows:
‘
And
at the time we know that you took at least his body to Mokwalo Farm
and threw it to the lions. You knew it. --- Sir I knew that,
but I
was not going to do the State’s work for them.
And you said under oath that the identity
of this person has not been proved. --- Sir, that was a signed
document I signed in the
holding cell, I was not in the court when I
signed that.
But you agree that this is terribly
disingenuous, because you took the body there, you knew the body was
thrown to the lions, whether
alive or dead, you knew it. --- The
State had not proved that at that stage.
It does not matter, you knew it. --- To
me it matters sir.
You knew it. ---To me it mattered.
You knew it, you lied. --- I did not
lie.’
The approach by the trial judge was unfortunate and
misconceived. It was unfortunate both because he descended into the
arena and
expressed a firm view as to the appellant’s
credibility whilst he was still testifying and that is plainly
undesirable.
20
It was misconceived because the two pillars of our
criminal justice system are that an accused is presumed innocent
until proven guilty
and that the onus is on the State to prove such
guilt beyond a reasonable doubt. A corollary to these principles is
that an accused
is entitled not to incriminate him/herself. The
attitude of the trial judge was contrary to these principles. As a
matter of fact,
at the stage that the bail application was brought
the State had failed to identify the body. As a matter of law, the
accused was
not obliged to assist the State in doing so. The comment
by the trial judge that the accused had ‘lied’ was
therefore
without foundation in fact or law.
[31] We turn to consider an appropriate sentence. We
shall deal first with the personal circumstances of the appellant. On
30 September
2005, the very morning on which he was sentenced to life
imprisonment by the trial court, the appellant who was then 38 years
old,
re-married. Prior to his re-marriage, he had been the primary
caregiver of his two minor children from his previous marriage.
Although
his parents divorced when he was approximately 18 years old,
he had enjoyed a relatively normal childhood. At the time of the
commission
of the offence, the appellant employed approximately 100
people on his game farm and in his construction business. He thus
contributed
significantly to the socio-economic infrastructure of his
local community. Despite work being scarce in the area and his having
a
captive workforce, his employees were reportedly well-paid.
[32] There was some suggestion in the evidence that the
crime was a racially motivated one. However, Dr M Tsele, a
representative
of the South African Council of Churches who was
called by the State in aggravation of sentence, conceded that as the
evidence unfolded
he was persuaded that his initially held view that
the crime was racially motivated, was wrong. ‘What captivated
the nation’,
according to Maluleke J ‘was the rather
frightening idea of a human being fed to lions’ ─ as well
it should. But
it was not proved that this happened. There is a vast
difference between throwing an injured man to the lions with the
intention
that they devour him whilst he is still alive, and
disposing of a dead body to conceal a murder that has already taken
place. One’s
instinctive revulsion at the thought of a human
being being fed to lions must thus be tempered accordingly.
[33] The disposal of the deceased’s body in that
fashion is not without significance though, for it denied the
deceased a dignified
burial. Considering the importance that is
attached to a proper funeral in many of our communities and the
psychological need for
closure, the emotional distress to the
deceased’s family must have been enormous. Violating a dead
body is itself a crime because
it ‘offends the public sense of
decency’.
21
Although motivated by the desire to avoid detection, the
disposal of the deceased’s body by throwing it to the lions
must undoubtedly
rank as an aggravating feature.
[34] The natural indignation that the community must
feel at the appellant’s conduct warrants appropriate
recognition in the
sentence. Nevertheless that can hardly invite a
sentence that is out of proportion to the nature and gravity of the
offence. Against
the public interest must be weighed the unblemished
record of the appellant, who, at the time of the commission of the
offence, was
a useful member of society upon whom some 100 people and
their families were economically dependant. To his credit, the
appellant
has expressed contrition and remorse.
[35] Plainly any sentence imposed must have deterrent
and retributive force. But of course one must not sacrifice an
accused person
on the altar of deterrence. Whilst deterrence and
retribution are legitimate elements of punishments, they are not the
only ones,
or for that matter, even the over-riding ones. Against
that must be weighed the appellant’s prospects of reformation
and rehabilitation,
which appear to be good. It is true that it is in
the interests of justice that crime should be punished. However,
punishment that
is excessive serves neither the interests of justice
nor those of society.
[36] Accused 2 who was party to a vicious attack upon
the deceased with pangas that ultimately led to the latter’s
slow and
obviously painful death, was sentenced to an effective term
of imprisonment of 12 years. Compared to accused 2 the appellant’s
conduct was less morally reprehensible by far. Moreover, the
appellant had spent 17 months in custody awaiting trial.
[37] The sentence imposed by this court can, in terms of
s 282
of the
Criminal Procedure Act 51 of 1977
, be backdated to the
date on which sentence was imposed by the trial court but it cannot
be backdated to the date upon which the
appellant was arrested.
Nevertheless the time spent in custody by the appellant awaiting
trial can and should be taken into account
by this court in
determining the duration of the sentence.
[38] The conclusion to which we have come bearing all
the above factors in mind is that a proper sentence would be five
years imprisonment
backdated to 30 September 2005.
[39] In the result the following order is made:
1. The appeal is allowed to the extent set out below.
2. The appellant’s conviction for premeditated
murder and the sentence of life imprisonment are set aside.
3. There is substituted a verdict of guilty of being an
accessory after the fact to murder.
4. The sentence is altered to 5 (five) years
imprisonment backdated to 30 September 2005.
______________
MTHIYANE JA
JUDGE OF APPEAL
_____________
CLOETE JA
JUDGE OF APPEAL
_____________
PONNAN JA
JUDGE OF APPEAL
1
See
s 51
of the
Criminal Law Amendment Act 105 of 1997
.
2
1965
(4) SA 439
(A) at 440D-H.
3
2005
(1) SACR 420
(SCA) at 430j-431a. (See also
S
v Heslop
2007 (4) SA 38
(SCA),
2007
(1) SACR 461
para 12.
4
Emphasis
in the original judgment.
5
1963
(2) SA 389
(A) at 393H.
6
Above,
n 2 at 440H-
in fine
.
7
See
eg
S v Hadebe
1997 (2) SACR 641
(SCA) at
645e-f and
S v Naidoo
2003
(1) SACR 347
(SCA) para 26.
8
2002
(2) SACR 325
(SCA).
9
1990
(1) SACR 95
(A) at 98f-g.
10
At
98f-g.
11
At
98g-h.
12
1931
AD 386.
13
1959
(1) SA 434
(A).
14
1937
AD 467.
15
Above,
at 99d.
16
1946
AD 1023
at 1028. See also
Small v Smith
1954 (3) SA 434
(SWA) at 438E-G and
S
v Van As
1991 (2) SACR 74
(W) at
108c-h.
17
Emphasis
supplied.
18
At
1028-9.
19
2001
(4) SA 1
(SAC),
2001 (2) SACR 185
,
[2001] 4 All SA 279
, para 30.
20
S
v Radebe
1973 (1) SA 796
(A) at 812H;
S v Rall
1982
(1) SA 828
(A) at 831
in fine
-832H;
S v Matthys
1999
(1) SACR 117
(C) at 120i-121a.
21
Milton
South African Criminal Law and
Procedure
vol II p 283.