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[2014] ZAFSHC 246
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Masiu and Others v S (A8/2014) [2014] ZAFSHC 246 (11 December 2014)
FREE
STATE
HIGH COURT,
BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Appeal
No. : A8/2014
In
the appeal between:-
TITI
MASIU
…......................................................................................................
1
st
Appellant
THULO
KHESHE
…...........................................................................................
2
nd
Appellant
NARCY
KHOZA
….............................................................................................
3
rd
Appellant
and
THE
STATE
…........................................................................................................
Respondent
CORAM:
DAFFUE, J
et
MOENG,
AJ
HEARD
ON:
3 NOVEMBER 2014
JUDGMENT
BY:
DAFFUE, J
DELIVERED
ON:
11 DECEMBER 2014
INTRODUCTION
[1]
On 16 May 2013 the three appellants were convicted on a count of
motor vehicle theft by the Regional Court sitting in Botshabelo.
On 24 May 2013 they were sentenced to 5 years’ imprisonment.
[2]
On 24 May 2013 leave to appeal against conviction only was sought and
the court
a
quo
granted
leave, having concluded as follows: “
……
.this
court is of the opinion that the record (sic) will not come to a
different conclusion or decision, but it does grant the application
for leave to appeal.” This is certainly not the test to
be applied. Once the trial court concludes that another
court
will not come to a different conclusion, the application for leave to
appeal should be dismissed. The person who applies
for leave to
appeal must satisfy the court that he has reasonable prospects of
success on appeal. The court should reflect
dispassionately
upon its decision and decide whether the court of appeal could
reasonably come to another conclusion. See:
S
v Mabena and another
2007(1)
SACR 482 (SCA) at para [22] and
S
v Smith
2012(1) SACR 567 (SCA) at para [7]. More is required to be
established than that there is a mere possibility of success,
that
the case is arguable on appeal or that the case cannot be categorised
as hopeless.
In
casu
the
trial court should have refused leave to appeal based on the
conclusion reached.
THE
ISSUES
[3]
It is apparent from the application for leave to appeal that
appellant relies on four grounds of appeal, to wit (a) the
discrepancies
between the versions of the two police officers who
allegedly arrested the three appellants in the stolen bus were not
properly
considered and another court may find them to be
untrustworthy; (b) the fact that the second State witness initially
refused to
make a statement to the police and her failure to answer
certain questions; (c) that no fingerprints were lifted from the bus
in
circumstances where it could be expected insofar as all three
appellants were allegedly arrested in the bus and 1
st
and 2
nd
appellants entered the bus earlier as well; (d) the date of arrest
reflected in the docket and the charge sheet, being 24 November
2011,
which differs from the direct evidence of the two police officers who
testified that the arrest took place a day earlier.
[4]
Mr Vorster, appellants’ attorney who appeared for them in the
court
a quo
and before
us, submitted that if we agree with the court
a
quo’s
finding
that the three appellants had been found inside the bus as testified
to by two police officers, the appeal was doomed to
fail.
However, he argued that the court
a
quo
erred
in this regard and insisted that the appeal should succeed based on
the defence version.
FACTS
NOT IN DISPUTE
[5]
The following admissions were made and recorded in terms of s 220 of
the Criminal Procedure Act, 51 of 1977, (“the CPA”):
(a)
the vehicle, a white Toyota Hino bus with registration no G 513 804
FS, was stolen at 01h51 on 21 November 2011 at 1504
K section,
Botshabelo;
(b)
at the time of the theft the bus was in the lawful possession of Lefa
Ruben Molatuli;
(c)
the bus was retrieved at Sterkspruit and identified by Mr Labuschagne
of the Grootvlei Prison;
(d)
the value of the bus is R750 000 and damages of R20 000 was
caused thereto.
LEGAL
PRINCIPLES
[6]
Where an appeal is lodged against a trial court’s findings of
fact, the court of appeal must take into account that the
court
a
quo
was in a more favourable position
than itself to form a judgment. When inferences from proven
facts are in issue, the court
a quo
may also be in a more favourable position than the court of appeal,
because it is better able to judge what is probable or improbable
in
the light of its observations of witnesses who have appeared before
it. Therefore, where there has been no misdirection
in respect
of fact, a court of appeal assumes that the court
a
quo
’s conclusion is correct and
will accept it, unless it is convinced that it is wrong. See
R
v Dhlumayo and another
1948 (2) SA
677
(AD) at 705 - 6.
[7]
Clearly, the court’s powers to interfere on appeal with factual
findings are limited. Therefore, in order to interfere
with the
court
a quo
’s
judgment it has to be established that there was a demonstrable and
material misdirection of fact and in the absence thereof
its findings
will only be disregarded if the recorded evidence shows them to be
clearly wrong. See also
S v Monyane
and others
2008 (1) SACR 543
(SCA)
at para [15] where the Supreme Court of Appeal stated that it is only
in exceptional cases that that court will be entitled
to interfere
with the trial court’s evaluation of oral evidence.
[8]
Insofar as the State’s case was to an extent based upon
circumstantial evidence, it is required to consider the case law
in
this regard. In
R v De Villiers
1944 AD 493
at 508 - 9 the Appeal Court referred to the well-known
dictum
in
R v Blom
1939 AD 188
at 202 pertaining to the test to be applied when reliance
is placed on circumstantial evidence and pointed out that it is not
each
proved fact that must exclude all other inferences, but the
facts as a whole must do so, and continued as follows:
“
The
Court must not take each circumstance separately and give the accused
the benefit of any reasonable doubt as to the inference
to be drawn
from each one so taken. It must carefully weigh the cumulative
effect of all of them together, and it is only
after it has done so
that the accused is entitled to the benefit of any reasonable doubt
which it may have as to whether the inference
of guilt is the only
inference which can reasonably be drawn. To put the matter in
another way: the Crown must satisfy the
Court, not that each separate
fact is inconsistent with the innocence of the accused, but that the
evidence as a whole is beyond
reasonable doubt inconsistent with such
innocence.”
See
also
S v Ntsele
1998 (2) SACR 178
(SCA) at 182b - f cited with approval in
S
v Boesak
[2000] ZASCA 112
;
2000 (1) SACR 633
(SCA),
para [13] at 638f and
S v Reddy and
Others
1996 (2) SACR 1
(A) at 8c –
g and especially the following
dictum
:
“
A
number of circumstances, each individually very slight, may so tally
with and confirm each other as to leave no room for doubt
of the fact
which they tend to establish. . . . Not to speak of greater numbers,
even two articles of circumstantial evidence,
though each taken by
itself weigh but as a feather, join them together, you will find them
pressing on a delinquent with the weight
of a mill-stone. . . .”
As
mentioned in these three judgments the ambit of the concept of
reasonable doubt does not go so far that the State must prove
the
guilt of the accused “bo elke sweempie van twyfel”, or
put otherwise,
“
beyond a shadow of a
doubt.”
[9]
In assessing the evidence, a court must in the ultimate analysis look
at the evidence holistically in order to determine whether
the guilt
of the accused is proved beyond reasonable doubt. This does not
mean that the breaking down of the evidence in
its component parts is
not a useful aid to a proper evaluation and understanding thereof.
See
S v SHILAKWE
2012(1) SACR 16 (SCA) at 20, para [11]. The Supreme Court of
Appeal approved of the following
dictum
:
“
But
in doing so, (breaking down the evidence in its component parts) one
must guard against a tendency to focus too intently upon
the separate
and individual part of what is, after all, a mosaic of proof.
Doubts about one aspect of the evidence led in
the trial may arise
when that aspect is viewed in isolation. Those doubts may be
set at rest when it is evaluated again together
with all the other
available evidence. That is not to say that a broad and
indulgent approach is appropriate when evaluating
evidence. Far
from it. There is no substitute for a detailed and critical
examination of each and every component in
a body of evidence.
But, once that has been done, it is necessary to step back a pace and
consider the mosaic as a whole.
If that is not done, one may
fail to see the wood from the trees.”
See
S v HADEBE AND OTHERS
1998 (1) SACR 422
(SCA) at 426F – H and
S
v MBULI
2003 (1) SACR 97
(SCA) at
110, para [57].
[10]
The same principles apply when an alibi defence is relied upon by an
accused. The acceptance of the evidence on behalf
of the State
cannot by itself be a sufficient basis for rejecting the alibi
evidence. Something more is required. The
evidence must
be considered in its totality. In order to convict there must
be no reasonable doubt that the evidence implicating
the accused is
true which can only be done if there is at the same time no
reasonable possibility that the evidence exculpating
him is not
true. See
S v VAN ASWEGEN
2001(2) SACR 97 (SCA) at paras [7] & [8], 100f-101e and
S
v LIEBENBERG
2005(2) SACR 355 (SCA)
at 358H – 359E, paras [14] and [15]. The effect hereof is
that once the trial court accepts
the evidence in support of an
accused’s alibi as reasonably possibly true, it follows that
the court should find that there
is a reasonable possibility that the
evidence led on behalf of the State is mistaken or false.
[11]
Bearing in mind the above the correct approach is to consider the
alibi in the light of the totality of the evidence in the
case and
the court’s impression of the witnesses. See
R
v HLONGWANE
1959(3) SA 337 (A) at
341A. In doing so, the trial court should remind itself that no
onus rests on an accused and that the
State must prove that the
accused committed the crime and it must therefore disprove the alibi.
[12]
It is acceptable in evaluating the evidence in its totality to
consider the inherent probabilities. Heher AJA (as he
then was)
dealt with this aspect as follows:
“
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 weigh so heavily in
favour of the State as to exclude any reasonable doubt about
the
accused’s guilt.”
See
S v CHABALALA
2003(1) SACR 134 (SCA) para [15]. In this regard it is apposite
to consider the evaluation of inherent probabilities by the
trial
court as accepted by the Supreme Court of Appeal in
MAGADLA
v S
, 80/2011
[2011] ZASCA 195
delivered on 16 November 2011, (unreported), at paragraph [22] and
further.
[13]
The right to remain silent and its effect on the disclosure of an
alibi defence was thoroughly discussed and considered in
the
S
v THEBUS & another
2003(6) SA
505 (CC) at 533 and further. The CC, per Moseneke J, found that
a distinction may properly be made between an
inference of guilt from
silence and a credibility finding connected with the election of an
accused person to remain silent. It
is clear that the late
disclosure of an alibi is one of the factors to be taken into account
in evaluating the evidence of the
alibi, although standing alone, it
does not justify an inference of guilt. Secondly, such late
disclosure is a factor to
be taken into consideration in determining
the weight to be placed on the evidence of the alibi. The Court
stated further:
“The failure to disclose an alibi timeously is
therefore not a neutral factor. It may have consequences and
can legitimately
be taken into account in evaluating the evidence as
a whole. In deciding what, if any, those consequences are, it
is relevant
to have regard to the evidence of the accused, taken
together with any explanation offered by her or him for failing to
disclose
the alibi timeously within the factual context of the
evidence as a whole.” At para 68, 537G
[14]
The identification of a perpetrator, based on the evidence of a
single witness must also be considered. Section 208 of
the CPA
provides that an accused may be convicted of any offence on the
single evidence of any competent witness. There is
no magic
formula to apply when it comes to the consideration of the
credibility of a single witness. The trial court should
weigh
the evidence of a single witness and consider its merits and having
done so, should decide whether it is satisfied that the
truth has
been told, despite the shortcomings or defects in the evidence.
See
S v SAULS
1981 (3) SA 172
(AD) at 180E – G.
[15]
Our courts have repeatedly stated that evidence of identification
must be approached with caution. There is no doubt that honest
witnesses may make mistakes because of the fallibility of human
observation and therefore all various factors set out in
S
v MTHETWA
1972 (3) SA 766
(AD) at
768A – C and any other factors that need to be considered
should be weighed one against the other, in the light of
the totality
of the evidence and the probabilities.
[16]
The fact that a witness failed to provide a description of the
accused does not always assist him or her. In the event
where
the witness was in a situation where he or she had ample opportunity
to make a proper and reliable observation of the perpetrator,
such
factor will be taken into consideration to consider the value to be
attached to such evidence, especially so where the witness
did not
have any reason to falsely implicate the perpetrator. See
MAGADLA
loc cit
at
paragraph [32]. In this matter three judges found that the
perpetrator had been identified correctly notwithstanding the
fact
that there was no evidence by the complainant as to the perpetrator’s
clothing and any physical attributes or marks
on his face or body
with which she identified him, factors that the minority heavily
relied upon in an endeavour to uphold the
appeal. In the
minority judgment strong reliance was placed on the judgment of
Willamson JA in
S v MEHLAPE
1963 (2) SA 29
(AD) at 32A – F.
EVALUATION
OF THE EVIDENCE
[17]
The court
a quo
found that Ms Mona, a pensioner living in
close proximity of the Roman Catholic Church in the rural area of
Sterkspruit, was a credible
witness. Ms Mona was the State’s
second witness, but bearing in mind the chronology of events, her
evidence is considered
first. She met 2
nd
appellant
twice before the events of 21 November 2011. She does not know his
name. On a previous occasion he parked a motor
vehicle close to
her house and requested her to keep an eye on it whilst he went to
Lesotho. On 21 November 2011 he again came
to her and asked her to
keep an eye on the bus that he had parked close to her house. He
again informed her that he was on his
way to Lesotho. That
night a police officer questioned her about the presence of the bus
in close proximity of her house
and informed her that the bus had
been stolen. She conveyed to him the information received from
2
nd
appellant. The next day 2
nd
and 3
rd
appellants, whom she identified in the dock, came to her house
whereupon she informed them of the police enquiries and the
allegation
that the bus had been stolen. 2
nd
Appellant denied this and mentioned that he would be going with the
bus and its documents to Pumalanga (presumably the satellite
police
station). She noticed when the two appellants boarded the bus.
She left her home thereafter, but on her return
the bus was still
parked at the same place. She could not say when the bus was
removed and knew nothing of the events described
by the two police
officers, the 1
st
and 3
rd
State witnesses.
She was unable to provide a description of the facial features of the
appellants, and 2
nd
appellant in particular, but insisted
that she knew him “very well” and that she informed the
police that she would
be able to point out the two. According
to her 3rd Appellant was taller and lighter in complexion than 2
nd
Appellant.
[18]
Ms Mona was a single witness. The court
a
quo
did not pertinently refer thereto.
She did not want to give a statement to the police initially and
claimed that she was afraid
of “those two boys”,
referring to 2
nd
and 3
rd
appellants. One of the grounds of appeal is that she initially
refused to make a statement to the police and failed to answer
questions. This ground of appeal is without merit. The
witness who did refuse to make a statement initially, was eventually
persuaded to testify based on an undertaking that she would be
protected and upon her arrival at court to testify, a statement
was
taken from her, a copy of which was presented to the defence.
She was criticised in cross-examination for not answering
questions,
but a perusal of the record indicates that she explained what
happened when her statement was taken down. I’ll
deal
with the approach adopted by the defence attorney
infra.
In any event, any possible difference
between her statement and her
viva voce
version does not necessarily reflect on
her credibility in the circumstances. Her version was accepted
by the trial court
to be credible. Although it might be argued
that there are shortcomings in her evidence, I am of the view that
the court
a quo
correctly
accepted her version. There is corroboration for her version in
the form of the evidence of the two police officers,
Messrs Tenduka
and Nkati. As will be seen it is the State’s case that
they trapped the three appellants in the bus
during the night of
22/23 November 2011. Their version is disputed by the
appellants who denied that they were arrested in
the bus. 2
nd
and 3
rd
Appellants also denied Ms Mona’s version about their visit to
her earlier that day and 2
nd
Appellant’s visits before then and on 21 November 2011 in
particular. This is not a case of mistaken identity by a
single
witness, but bearing in mind the argument of Mr Vorster, she is
untruthful and conspired with the police officers to falsely
implicate 2
nd
and 3
rd
appellants. This argument is untenable in light of the
objective evidence that she failed to give a statement earlier and
her explanation for such refusal. It is also unthinkable that
the police would randomly pick a member of the public, a female
pensioner, to collaborate with them to falsely implicate innocent
people.
[19]
The two police officers, Messrs Tenduka and Nkati, were the State’s
first and third witnesses. No doubt, they contradicted
each
other in respect of aspects such as time and other minor issues.
This could be expected, but instead of being indicative
of collusion
as Mr Vorster submitted, these differences are rather reconcilable
with subjective observations by two persons who
were at the same
scene, but played different roles and testified from their own
perspectives. Mr Vorster confronted Mr Tenduka
with the witness
statement of Mr Nkati and incorrectly suggested in cross-examination
that there was indeed a material contradiction
in their versions
relating to their tactical approach of the bus just before the
appellants were trapped inside. An analysis
of Mr Tenduka’s
evidence clearly shows the fallacy of the cross-examination on this
issue which should not have been allowed
in the first place.
I’ll refer to this aspect again
infra.
Mr Vorster
requested the occurrence book kept by the witness’ police
station and for that purpose the case had to be adjourned.
Copies of the occurrence book were eventually handed in as an exhibit
which supported the State’s case materially.
Mr Nkati
presented his pocket book as evidential material during his
testimony. His observations recorded at the time in
his pocket
book confirm the version of the two police officers and the contents
of the occurrence book materially. If Mr
Vorster’s
submissions are to be heeded to, we should find on appeal that the
entries in the pocket book had been fabricated
by Mr Nkati.
This was never put to him. The same applies to the entries in
the occurrence book. I am of the view
that the court
a
quo
correctly
found that these two witnesses gave credible testimony.
[20]
The lack of fingerprints does not take the case any further and
surely does not point to appellants’ innocence
in
casu.
According to the evidence
of the police officers an attempt was made to lift fingerprints from
the bus prior to the arrest of the
appellants. No direct
evidence was tendered in this regard, but it was not necessary.
Experience has taught us that
in many criminal matters accused
persons cannot be positively linked to crime scenes by means of their
fingerprints for a variety
of reasons, such as the wearing of gloves,
factors such as time delay, rain, dust, the deliberate removal of
fingerprints by criminals
and even the inexperience of police
officers tasked to lift fingerprints.
[21]
There cannot be any doubt about identification of the appellants by
any of the above three State witnesses. The warnings
referred
to in the case law quoted do not come into play. Mr Vorster has
conceded this. The issue is thus one of credibility
and not the
fallibility of the witnesses’ identification. Therefore
Mr Vorster had to rely on an argument that his
clients had been
framed. They had been handpicked and had been accused of being
found in the bus, whilst they were arrested
in another country,
Lesotho, and on separate occasions by different police officers.
In the process the police officers devised
a scheme in terms whereof
a female pensioner was selected to assist them in their devious
attempts. The two police officers
are not from the same police
station where the theft of the bus had been reported stolen. No
reasonable court could have
accepted these submissions to be
feasible.
[22]
It is necessary to consider the evidence tendered by 1
st
and 2
nd
appellants and their witness, Adv Nglama, a legal practitioner
practising in Lesotho. 3
rd
appellant did not testify. They effectively relied on alibi’s.
The three appellants left Maseru, the capital
of Lesotho during the
early hours of 23 November 2011. They travelled in an Isuzu LDV
belonging to a relative of 3
rd
appellant. The purpose of the trip was to deliver certain items
to 1
st
appellant’s brother who was attending an initiation camp in the
mountains. They travelled to Deli Deli which town is
about 4 to
5 hours’ drive from Maseru. They intended to return to
Maseru before dawn as 2
nd
appellant had to attend a traditional feast. This was objectively
speaking impossible. At Deli Deli 2
nd
and 3
rd
appellants were left behind at a shop whilst 1
st
appellant went further into the mountains, the reason being that
these two appellants would not be allowed to accompany 1
st
appellant to the initiation camp. 1
st
appellant was arrested in Lesotho by an unknown South African police
officer whilst he was busy pouring water obtained from a river
in the
radiator of the Isuzu LDV in which he was travelling. The
vehicle allegedly overheated. 2
nd
and 3
rd
appellants were arrested by Lesotho police at the shop where they had
been waiting on 1
st
appellant and thereafter detained in the police cells of the Deli
Deli police station. They relied on detention forms handed
in
by their Lesotho counsel and defence witness, indicating that they
had been incarcerated from the early hours of 23 November
2011 to the
next day at the aforesaid police station. If this is to be
accepted as reasonably possibly true, the appeal should
succeed as
the State then failed to disprove the alibi’s. The
versions of the appellants are clearly untenable and
improbable.
However the defence case cannot be regarded in isolation and has to
be considered with the State’s evidence
and the evidence of two
witnesses called by the court
a quo.
[23]
Proof of the alibi of 2
nd
and 3
rd
appellants, the detention forms, was not only produced late, but has
been proven to be false. It is true that reliance was
placed on
alibi’s during the plea explanation, but it was done in vague
language without referring to the police station
where the two
appellants were kept and the identity of the arresting officer was
not disclosed. There was also no reference
to the existence of
detention forms. The Lesotho counsel’s evidence is not
only suspect, but contradictory and vague
in the extreme. He
alleged that he became involved with the affairs of 2
nd
and 3
rd
appellants when they were incarcerated in Deli Deli. His first
letter to the Lesotho authorities regarding the alleged illegal
handling of the matter by the Lesotho police was written on 30 June
2012, seven months after the arrests. He allegedly obtained
the
detention forms just prior to his testimony on behalf of his
clients. The State’s case was closed during June 2012
and
these forms were therefore not presented to any of the State
witnesses in order to respond thereto. As mentioned the
evidence of adv Nglama was not only vague, but he also contradicted
himself on major issues, such as who presented the detention
forms to
him and with which officer at Deli Deli police station he consulted
relating to the alleged events. Eventually his
evidence was
contradicted and shown to be false by the court
a
quo
’s witness, the station
commander at Deli Deli, Sergeant Motjabe.
[24]
Sergeant Motjabe was a good witness. He made it clear that no
policeman with the name of Seeiso, who
ex facie
the detention
forms arrested the two appellants, was attached to his station at any
time when he was in charge. He never signed
the detention forms
as station commander and denied that his signature was affixed to the
documents. He also stated categorically
that adv Nglama visited
his station during 2012, looking for proof that he had arrested his
clients, but that he informed him that
it was not the case. He
also did not hand any documents to the advocate. He denied that
he arrested people and handed
them over to the SAPS as alleged by the
defence. His colleague, Rakabaela, who was at one stage also
accused of arresting
the two appellants, was not even on duty during
the relevant period and this appears from his station’s records
handed in
as an exhibit.
[25]
Another aspect relied upon by Mr Vorster is the information contained
in the docket indicating that the arrests of the appellants
were
effected on 24 November 2011 and not on the 23
rd
as stated
by the State witnesses. The investigation officer confirmed
this inscription during his testimony when he was called
as witness
by the court. Again, his evidence must be read in context and
it is not useful to look at one single inscription
in isolation.
Pumalanga police station where Messrs Tendula and Nkati are stationed
is a satellite station. It does
not even have holding cells to
keep arrested people. It does not have all the stationery
normally kept at proper police stations.
The version of the
State is that all three appellants were arrested inside the bus
during the night of 22/23 November 2011 and
that they were kept at
the Pumalanga police station, the reason being that the Boithuso
police in Botshabelo, in which area the
theft of the bus had been
reported, would have come to collect the suspects. This
happened only on the 24
th
. The Pumalanga police
officers were never in possession of the docket, it being a Boithuso
docket. The investigation
officer clearly had no idea when the
arrests had been effected. He had to consult the docket.
The appellants were not
handed over to him
ex facie
the
aforesaid pocket and occurrence books, but to a Warrant Officer
Phuroe. The pocket and occurrence books show that the
handing
over took place at 03h50. According to the docket the arrests
took place on the 24
th
at 04h00, which is clearly a
mistake, and the suspects were fetched by the Boithuso police and
detained at 08h06 that morning.
This appears to be improbable bearing
in mind the time of the day, the reaction time of the police and the
distance between Sterkspruit
and Botshabelo. The investigating
officer’s evidence does not disprove the direct and credible
evidence of Messrs Tenduka
and Nkati and the information contained in
Nkati’s pocket book and the occurrence book.
[26]
The court
a quo
dealt with appellants’ alibi evidence. It was critical of
the advocate’s evidence and rightly so. It did
not in so
many words reject the alibi defence, but when considering the
totality of the evidence as it should do, it concluded
that the
defence case was improbable and had to be rejected as false.
Consequently the court a quo was satisfied that the
State had proven
its case beyond reasonable doubt. The criticism of appellants’
evidence and that of their witness
is well founded and even
considered on its own, could be rejected as false and inherently
improbable. When it is considered
with the totality of the
evidence the court
a quo’s
rejection of their version and their ultimate conviction is
supported. I am unable to find that the court
a
quo
misdirected itself in the analysis
of the evidence. The only reasonable inference to be drawn from the
proved facts is that the
appellants stole the bus.
[27]
Consequently the court
a quo
did not err in its finding that the State had proven its case beyond
reasonable doubt and therefore appellants’ convictions
are in
order.
[28]
A study of the record revealed disturbing features relating to the
cross-examination of the defence attorney that should be
addressed.
I do not intend to refer to all incidents, but limit myself to some
only. The bounds of cross-examination
were exceeded several
times and the record speaks for itself. The first State witness
was not prepared to commit himself
to provide distances and exact
times. It must be borne in mind that observation was conducted
during the night and over a
long period of time. Arrests were
made during the early hours of the morning only. The witness
was for no reason at
all accused of lying. Worst of all, it was
suggested that his one eye started to “flicker” every
time he was
telling a lie. The irony of this statement by the
defence attorney is that he noticed the “flickering” at
one
stage when he was busy asking a question to the witness.
This makes a mockery of his statement. This witness was also
incorrectly accused of giving a version in conflict with the police
statement of his colleague, Mr Nkati. When extracts of
the
occurrence book was handed in, the defence attorney unfairly put it
to the State witness that “this is perfectly in line
with my
instructions as put to you last week”, while the reality is
that the attorney put it to the witness the previous
week that his
clients were never taken to Sterkspruit and thus the Pumalanga police
station after they had been fetched in Lesotho.
[29]
The cross-examination of Ms Mona went on in a similar vein. At
a stage he shouted at her and had to be reprimanded by
the presiding
officer. At that stage the same question had been put to the
witness four times. The attorney was not
satisfied with the
response on the very first question which I personally believe set
out what the witness wanted to convey.
This specific portion of
her evidence does not appear from her police statement that was taken
down that morning before the court
proceedings resumed. If the
cross-examiner did not understand the response as I understood it, he
could and should have clarified
the issue in a decent manner.
The witness, who was afraid to become a State witness for the reasons
advanced by her, got
such a scare that she immediately hereafter
sought permission to sit down. Later on the witness confirmed
that she went to
sleep at her house on the 22
nd
of November. The next question, a rather unnecessary one,
whether she woke up at her house the next morning, was not
immediately
responded to and upon being asked why she was not
responding, she came up with the logic reply: “… I
am sleeping
at my house, where will I sleep?” Immediately
thereafter, when asked where the bus was the next morning, she tried
to get assistance from the prosecutor “because I do not
understand this gentleman who is asking me.” She
eventually
answered the question, but it is apparent that she felt
harassed by the cross-examination. Cross-examiners are entitled
to
vigorously fulfil their tasks in order to carry out their mandates
to the best of their ability and in the interests of their clients,
but in doing so, they are expected to show courtesy towards the
witnesses and act in a fair manner. This did not happen
in
casu.
ORDER
[30]
Therefore the following order is made:
(1)
Appellants’ appeal is dismissed.
(2)
The convictions and sentences are confirmed.
_____________
J.P.
DAFFUE, J
I
concur
________________
L.B.
MOENG, AJ
On
behalf of appellant: Mr. J Vorster
Instructed
by:
Vorster
and partners
BLOEMFONTEIN
On
behalf of respondent: Adv. M Strauss
Instructed
by:
Office
of the Director of Public Prosecutions
BLOEMFONTEIN