S v Heslop (216/05A) [2006] ZASCA 127; [2007] 4 All SA 955 (SCA); 2007 (4) SA 38 (SCA); 2007 (1) SACR 461 (SCA) (30 November 2006)

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[2006] ZASCA 127
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S v Heslop (216/05A) [2006] ZASCA 127; [2007] 4 All SA 955 (SCA); 2007 (4) SA 38 (SCA); 2007 (1) SACR 461 (SCA) (30 November 2006)

Links to summary

Case number: 216/05
Reportable
In
the matter between :
REUBEN
HESLOP APPELLANT
and
THE STATE RESPONDENT
CORAM : ZULMAN, CLOETE
et
MLAMBO JJA
HEARD : 23 NOVEMBER 2006
DELIVERED : 30 NOVEMBER 2006
Summary: Criminal Appeal: Delay and failure by the
registrar of the court
a
quo
to provide an explanation, criticised. Discussed: The role of
probabilities
in
evaluating guilt; inconsistency of evidence with unassailable fact;
failure to
allow
cross-examination; when an appeal court is justified in disregarding
favourable
credibility findings by a trial judge in respect of a witness’s
demeanour;
the difficulty of drawing inferences from the location of gunshot
wounds;
and reasoning based on matters not canvassed in evidence.
Neutral citation: This judgment may be referred to as
Heslop v S
[2006] SCA
155
(RSA).
_________________________________________________________
JUDGMENT
CLOETE JA
/
CLOETE JA:
[1] The appellant was charged with three counts of
murder and convicted on 13 August 1996 of three counts of culpable
homicide by
Mailula J and assessors in the Johannesburg High Court.
He was sentenced on 5 November 1996 to an effective term of
imprisonment
of six years. On the same day that sentence was imposed,
leave to appeal was sought and granted without opposition from the
State.
[2] A disquieting feature of the case is that it took
nearly ten years for the record to arrive at this court. On 20 March
2006 the
matter was struck off the roll because the Johannesburg
Justice Centre had been unable to obtain a power of attorney from the
appellant.
The representative of the State informed the court that it
is the sole responsibility of the registrar of the court
a quo
to transmit the record to the registrar of this court. Accordingly,
this court in a letter dated 22 March 2006 sent by its registrar
requested an explanation from the registrar of the Johannesburg High
Court for the delay. That was more than eight months ago. Despite
several reminders, this court’s request has simply been ignored.
That is unacceptable. The matter has been taken up in a letter
sent
by the President of this court to the Minister of Justice, who has
advised that she views the content of the letter in a serious
light
and has directed the Director General to conduct the necessary
investigation. Fortunately the appellant has been on bail pending
the
decision of the appeal. It is necessary to reiterate what was said in
S v Senatsi
:
1
‘
In
the appeal before us Mr
Van der Vijver
for the State assured
us that steps have now been taken in the DPP’s office to ensure
that appeals, especially those lodged by
unrepresented accused, are
not lost in the system. One can imagine the prejudice that would have
occurred if the appeal by the two
appellants had been upheld or
sentences of less than the period they have already served had been
imposed. The office of the DPP
is urged to ensure that such delays do
not occur in the future. Such delays deny justice to the persons
concerned by preventing a
speedy disposal of their cases. Sadly, this
is not the first time this has occurred. In
S v Joshua
this
Court had to deal with a case in which there was a delay of some six
years before the appeal was heard. Fortunately, the accused
was out
on bail in that case. Not so in the present matter. Such delays are
to be avoided at all costs.’
We
would suggest that the DPP of the Johannesburg High Court ─ and
indeed, the DPPs of all High Courts ─ put in place similar
safeguards, if this has not already been done; and to this end the
registrar is requested to forward a copy of this judgment to the
NDPP
and all DPPs drawing this paragraph to their attention.
[3] The appellant was traced and on 24 May 2006
furnished the Johannesburg Justice Centre with a power of attorney to
prosecute his
appeal. The appeal was reinstated following an
application in terms of SCA rule 11. This court is grateful for the
assistance of
the Johannesburg Justice Centre, and in particular, Mr
Miller, in the prosecution of the appeal.
[4] It was common cause at the trial that on 20 May 2005
the appellant shot and fatally wounded Mr Mark van der Westhuizen
(deceased
1), Mr Richard van der Westhuizen (deceased 2) and Mr Keith
Davids (deceased 3). The shootings took place outside Steers Fast
Foods
in Pretoria Street, Hillbrow. Pretoria Street runs from west to
east. Banket Street runs from south to north and intersects with
Pretoria Street. Steers is situated on the south side of Pretoria
Street at that intersection. The appellant’s case was that he
had
acted in private defence. Four witnesses were called on behalf of the
State and the appellant testified on his own behalf.
[5] The principal witness for the State was the 20-year
old son of deceased 3, Mr Darryl Lee Davis. He said that when he
rounded the
corner of Pretoria Street at its junction with Banket
Street he saw the appellant, who had a pistol in his hand, struggling
with
deceased 1 outside Steers. Deceased 2 and deceased 3 were
standing nearby. Deceased 2 ran to assist his brother, deceased 1.
The
appellant then shot deceased 2, deceased 1 and deceased 3, in
that order, and they all fell to the ground. Whilst on the ground
deceased
3 shot at the appellant, who ran away backwards in an
easterly direction along Pretoria Street, firing indiscriminately.
The witness
was adamant that the appellant was not injured in front
of Steers or while he was running away. According to the witness,
none of
the deceased had drawn their firearms when the shooting
started and although deceased 1 managed to draw his firearm after he
was
shot, he did not fire it. Deceased 2’s firearm remained in its
holster. Later the witness went to a café in Abel Road, a
few
blocks east of where the incident took place, where the appellant,
who (the witness confirmed) had been injured, was arrested
by the
police.
[6] Mr John Arthur Gray also testified on behalf of the
State. He was in Banket Street, to the south of the Pretoria Street
intersection,
when he heard gunshots. Darryl Davis then came running
around the corner shouting that his father (deceased 3) had been
shot. The
witness ran around the corner and saw the three deceased
lying on the ground, and the appellant running backwards and shooting
wildly.
He ran after the appellant and fired four or five shots at
him, but did not hit him. On his return to the scene he said that
deceased
1’s firearm was out of its holster, but no shot had been
fired from it; and deceased 2’s firearm was still holstered. He
took
possession of deceased 1’s firearm and thereafter handed it to
one of the police at the scene. Later he went to the café
in
Abel Road where the appellant was arrested.
[7] It is not necessary at this stage to deal with the
evidence of the two policemen, Inspector Parker and the investigating
officer,
who also testified on behalf of the State.
[8] The appellant said that he was walking in front of
Steers Fast Foods when Darryl Davis pointed him out to deceased 1 and
2. Deceased
1 then took hold of his shoulders and tried to headbutt
him. The appellant moved backwards and deceased 1 drew his firearm.
The appellant
turned sideways and deceased 1 shot him in the left
abdomen. The appellant then drew his firearm and shot deceased 1.
Deceased 3,
who was then standing close by, and deceased 2 thereupon
also drew firearms and shot at the appellant. He fired at deceased 2,
who
fell down, and at deceased 3, who was standing and still firing
at him. The appellant was hit all over his body and legs; apart from
the wound I have mentioned, he was shot on his left hip, twice
through his right thigh, on his right elbow and through the calf of
his leg. I pause to emphasise that the appellant’s evidence as to
the number and location of all of the six gunshot wounds sustained
by
him was not challenged by the State. According to the appellant, he
fell down after he had been shot and he was thereafter assisted
from
the scene by Mr Francis Adams (who was on the list of State witnesses
but not called by either side). He saw Gray and two other
persons,
who were then about 100 metres away, shooting at him. Later the same
night at the café in Abel Road where he was
arrested and after
the flying squad had arrived, Darryl Davis and Gray pointed firearms
at his head and threatened to shoot him.
[9] The judgment of the court
a quo
concludes as
follows:
‘
[I]t
is a unanimous finding of the members of the court that it cannot be
accepted that at the stage when the accused produced his
firearm and
shot at all the three deceased persons that anyone of the three had
pulled out a firearm on him or at all. Although the
accused may have
reasonably believed that the attack was imminent it is the unanimous
finding of the members of the court that the
means he employed in
order to ward off the attack were in the circumstances of the present
case not commensurate with the attack
on him. It was not necessary
for him to produce a firearm and fire at any of the deceased persons
and the means adopted in this particular
case were extremely harsh
and absolutely unnecessary.
It
is therefore the unanimous finding of the members of the court that
in acting in the manner that he did the accused exceeded the
bounds
of self-defence . . .’.
The appellant was thereupon found guilty of culpable
homicide on each count.
[10] A number of fundamental misdirections appear from
the judgment of the court
a quo
. First, the court applied the
wrong standard of proof, as appears from the following passage:
‘
However as I have said, the court has found that the
accused’s version as to how the shooting occurred is highly
improbable. Davis’s
evidence on this aspect is a more probable one
and therefore accepted.’
The remarks of Brand AJA in
S v Shackell
2
are particularly apposite in regard to the approach followed by the
court
a quo
:
‘
It
is a trite principle that in criminal proceedings the prosecution
must prove its case beyond reasonable doubt and that a mere
preponderance
of probabilities is not enough. Equally trite is the
observation that, in view of this standard of proof in a criminal
case, a court
does not have to be
convinced that every detail of an accused’s version is
true. If the accused’s version is reasonably possibly true in
substance
the court must decide the matter on the acceptance of that
version. Of course it is permissible to test the accused’s version
against
the inherent probabilities. But it cannot be rejected merely
because it is improbable; it can only be rejected on the basis of
inherent
probabilities if it can be said to be so improbable that it
cannot reasonably possibly be true. On my reading of the judgment of
the Court
a quo
its reasoning lacks this final and crucial
step.’
[11] Second, the court
a quo
overlooked the fact
that the State version, testified to by Darryl Davis and Gray, does
not explain how the appellant could have
sustained the injuries which
the State accepted that he did: according to Darryl Davis, the
appellant was not shot by his father,
deceased 3, at Steers or while
he was running away and according to Gray, he shot at the appellant
whilst he was running away, but
did not hit him. That fact in itself
should have gone a long way to secure the acquittal of the appellant
because logic dictates
that where the evidence of a witness is
irreconcilable with an unassailable fact, such evidence falls to be
rejected. But the conflict
in the evidence was apparently ignored.
That was a misdirection. As Nugent J said in
S v Van der Mayden
:
3
‘
What must be borne in mind, however, is that the
conclusion which is reached (whether it be to convict or to acquit)
must account
for all the evidence. Some of the evidence might be
found to be false; some of it might be found to be unreliable; and
some of it
might be found to be only possibly false or unreliable;
but none of it may simply be ignored.’
[12] Third, the court
a quo
found that Darryl
Davis was an ‘impressive witness’ and that his evidence that his
father, deceased 3, did use his firearm was
corroborated by the
ballistics report. I shall deal with this latter aspect first. It was
common cause that deceased 3 had fired
at the appellant. Other
evidence showing that the witness’s evidence was correct on this
point does not provide corroboration,
because by corroboration is
meant other evidence which supports the evidence of the witness and
which renders the evidence of the
accused less probable,
on the
issues in dispute
:
S v Gentle
.
4
There is, however, a more disturbing feature of the case which
requires mention. The ballistics report showed that of the ten
cartridge
cases found at the scene, eight could not have been fired
from the appellant’s firearm. The firearms used by deceased 1 and 2
were
revolvers which (as was established by the evidence) do not
eject spent cartridge cases. The firearm used by deceased 3 was a
pistol
which (as the evidence also established) could have ejected
the eight cartridge cases to which I have referred. When Darryl Davis
said in his evidence-in-chief that his father, deceased 3, had shot
at the appellant, it was put to him by the prosecutor that during
a
consultation at which the investigating officer was present, he had
said that none of the deceased had fired shots at the scene.
This was
confirmed by the investigating officer. (The court found that the
investigating officer was ‘not telling the truth in
certain
respects’ ─ in which respects, it did not specify ─ and that
‘his evidence should be treated with caution’. But
his evidence
on this aspect can be accepted in view of the questions put by the
prosecutor to the witness and his answers as confirmed
by the
latter.) It is significant that the ballistics report, which
established that not only the appellant had fired shots on the
scene,
only became available after the consultation. When asked by the
prosecutor to explain the contradiction between his evidence-in-chief
and what he had said at the previous consultation, the witness said
that by ‘the deceased’ he had meant the two Van der Westhuizen
brothers, deceased 1 and 2, and had not meant to include his father,
who had indeed fired at the scene. One would have thought that
the
deceased most important to the witness would have been his own
father. Regrettably, the court
a quo
prevented
cross-examination on this point, despite a protest by defence
counsel. The relevant passage reads:
‘
MS
VAN NIEKERK
: I put it to you further that nowhere in your
statement do you say that your father fired shots, and as my learned
friend also
put to you apparently you also said last week that he did
not fire shots. How come you now …(intervenes)
COURT
:
Well he has explained what transpired at the consultation with the
state’s counsel.
MS
VAN NIEKERK
: My lady with respect he explained, but the
prosecutor has put certain things to him. Surely I may also put that
to him.
COURT
:
Yes, he has explained what he meant.
MS
VAN NIEKERK
: As the court pleases.’
Defence
counsel then simply asked the witness to restate his explanation,
without cross-examining him on it. In its judgment the court
a quo
glossed over the problem by saying that ‘it appears that [State]
counsel and the witness were talking at cross-purposes’. In
the
absence of proper cross-examination on the point this conclusion was
unfairly favourable to the witness and correspondingly prejudicial
to
the appellant. In addition the failure to allow cross-examination on
the witness’s explanation of his previous inconsistent
statement to
the prosecutor and the investigating officer was a fundamental
irregularity. He may have been discredited entirely on
an essential
aspect of his evidence, namely, that his father, deceased 3, only
shot at the appellant after he had been shot by the
appellant and was
lying on the ground. (It will be remembered that it was the
appellant’s version that he shot deceased 3 whilst
the latter was
still standing and shooting at him.) The witness’s statement to the
prosecutor and the investigating officer, taken
at face value, was
inconsistent with the ballistic evidence which was not then
available, which gives rise to the possibility (of
which defence
counsel was well aware) that the witness’s evidence was tailored to
fit the ballistic evidence when it did become
available. It must also
be emphasized that Darryl Davis was a single witness as to what had
happened in front of Steers. The irregularity
would have justified an
application for a special entry in terms of
s 317(1)
of the
Criminal
Procedure Act, 51 of 1977
; but it can nevertheless constitute a
ground of appeal in terms of
s 316
of that Act:
Sefatsa v
Attorney-General, Transvaal
.
5
In consequence of the irregularity the appellant did not receive a
fair trial
6
and the appeal must succeed on this ground alone.
7
[13] The finding that Darryl Davis was an ‘impressive
witness’ is cause for comment. The record shows that he was
argumentative,
rude to the appellant’s counsel and sarcastic, and
continued to ask questions instead of answering them despite a
warning from
the bench to stop doing so. Many examples could be
given. Two will suffice:
‘
But he [the appellant] need not have started running
before he shot you if he had wanted to shoot you. -- Why did he run
if it was
self-defence?
Because…
-- No why did he run if it was self-defence?
Because
he had shot them …(intervenes) --So?’
And further:
‘
He [the appellant] says that Keith who was then on
the scene, that is your father, and the other brother pulled out
firearms and shot
at him and he shot in return. -- Okay so you, your
evidence that you stated earlier on already proves you are wrong. You
said you
found two different calibre shells over there. Now if three
of them shot it is three different calibres. So who is lying where
now?
Sir
do you know about .38 revolvers, what happens to their shells? -- No
I do not know. I do not work for ballistics.’
The correct approach to the deference which a court of
appeal ought properly to accord credibility findings made by a trial
court
based directly or indirectly on the demeanour of witnesses who
have testified orally before it, has been dealt with in a number of
decisions.
8
I merely wish to emphasise the following aspect. It is cause for
concern to find laudatory epithets applied by a trial court to
witnesses
when the record shows that their performance, judged by the
written word, was obviously far from satisfactory. In such a case an
appeal court will more readily interfere with the findings of the
trial court as to the weight to be attached to the witnesses’
evidence and its ultimate conclusion based on such findings.
[14] The court
a quo
was alive to the fact that
Darryl Davis was a single witness but, surprisingly, it made no
mention of the fact that his evidence
should also be approached with
caution both because he was the son of deceased 3, and because he
admitted bias. When asked why he
had gone to the place where the
appellant had been arrested, he said: ‘Hatred’.
[15] Gray was also hostile to the appellant. He boarded
with deceased 3 and his wife, and (to use his own words) he was ‘very
good
friends’ with deceased 3. He, too, displayed bias: when asked
in cross-examination why ‘all of you carried guns, is it because
it
is so dangerous in Hillbrow or what?’ he replied ‘To protect
ourselves from people like Reuben Heslop.’ He also sparred
with
cross-examining counsel and was warned by the presiding judge not to
put questions to counsel, which he continued to do. One
example will
suffice:
‘
And
obviously you did not look at the accused [after he had been
arrested], you said so. You would not know whether he was injured
or
not so you cannot verify whether he sustained six wounds? -- If he
was laying on the floor he must have been injured. I say I
did not
observe where his injuries were.
But surely you must have observed blood or something?
Six injuries, it is …(intervenes) -- I mean what do you want me to
…(intervenes)
Several
entrance and exit wounds. Surely one …(intervenes) -- Do you want
me to go sympathise with the accused?’
The judgment of the court a quo nevertheless records in
regard to Gray that ‘the members of the court are impressed with
his evidence’.
[16] Fourth, the court misdirected itself on the facts.
The principal misdirection is contained in the following passage in
the judgment:
‘
Further
one of the deceased person’s firearm, namely Richard van der
Westhuizen [deceased 2], was found in its holster on his person.
This
was the evidence of Gray as well as Inspector Parker. The evidence by
Inspector Parker on this aspect was never disputed. He
arrived on the
scene approximately ten, 15 seconds after the shooting. If he had
produced his firearm and fired at the accused at
all, as the accused
has testified, it is indeed strange that the firearm would have been
found in its holster a few seconds later.’
It
was common cause that deceased 2 was shot only once, in the neck (the
bullet passed through the sixth cervical vertebra and lacerated
the
spinal cord) and that he fell down after he had been shot. I agree
with the court
a quo
that it is therefore difficult to see how
he could have returned his firearm to its holster; and no reason
suggests itself as to
why he may have wanted to do so. The
possibility that some third person may have done so after the
shooting is fanciful and may safely
be excluded. Accordingly, if
deceased 2’s firearm was found in the holster after the shooting,
this would cast serious doubt on
the appellant’s version that
deceased 2 had shot at him before he shot deceased 2 and undermine
both the appellant’s credibility
and his reliance on private
defence. It was indeed the evidence of Gray, as the court
a quo
said, that deceased 2’s firearm was in its holster after the
shooting. This was also the evidence of Darryl Davis. But it was not,
contrary to the finding of the court
a quo
, the evidence of
Inspector Parker. He said he picked up two firearms at the scene ─
one from deceased 3 and another from one of
the deceased whom he did
not identify. By a process of elimination, this must have been
deceased 2’s firearm because Gray picked
up deceased 1’s firearm
himself and handed it to a policeman at the scene. In addition, the
evidence established that deceased
1 lay in the middle of the three
deceased after they had been shot. Parker said in his
evidence-in-chief:
‘
Apart from the firearm which was with Davis… --
Yes?
Did you see any other firearms? --Yes there was one on
the second, on the middle person. There was a, I cannot recall if the
firearm
was in a holster or if it was laying on the ground but I know
I had taken a firearm. I, I got one from the second person. I picked
one up.’
His
evidence in cross-examination was to exactly the same effect:
‘
Did
any witness ever hand you a firearm? There were firearms that you did
not pick up, handed to you by the police colleagues? --No.
The first
one, that is what I said, the first one, the one that was by Davis,
I, I cannot recall whether it was handed to me by a
witness or if I
picked it up myself. All I wanted to do was get the firearms away
from the scene.
And
the second firearm you saw, did you pick that up? -- That I picked up
yes. I cannot recall if it was in the holster or if I got
that in his
hand or I got it underneath him. I do not know.’
There
was therefore no independent corroboration of the version of Darryl
Davis and Gray that deceased 2’s firearm was still in
its holster
after he had been shot.
[17] In all the circumstances this court is justified in
calling into question the reliance placed by the trial court on the
evidence
given by Darryl Davis and Gray.
[18] Fifth, the court rejected the appellant’s version
as to how he came to be shot as a ‘fanciful story’, because ─
apart
from the gunshot wound to his right elbow ─ all the gunshot
wounds were to his lower body, and the court reasoned that one would
have expected them to have been to his upper body because deceased 2
and 3 were taller than he. It is notoriously difficult, even
when the
tracks of wounds are known (which was not the case here), to draw
inferences from the location of wounds to establish how
a shooting
incident must have occurred. Expert evidence is usually required.
Everything depends on the positions of the firearm and
the person
shot relative to each other, and the angle at which the firearm was
held when it was fired. The appellant said when asked
by one of the
assessors that deceased 3 was crouching when the latter fired at him.
This evidence was criticised as an afterthought.
The criticism is
unjustified. The appellant was not asked the question earlier and
there was no particular reason for him to have
volunteered the
information. The court also found that the evidence was an ‘attempt
to explain away the injuries’ on appellant’s
‘own admission’.
This criticism is also misplaced. The relevant passage in the record
reads:
‘
No,
the question is why didn’t you mention the crouching position? -- I
did not think that was, I did not think that was important
because I
just …(intervenes)
Well
then why do you mention it now? -- Because you asked me if Keith
Davis is taller than me and that is why I answered you that
Keith
Davis was crouching position shooting at me.
What
you are in fact trying to do is to justify the fact that you got most
of your wounds on the lower part of your body. -- Yes that
is it.’
It is quite possible to interpret the word ‘justify’
as meaning ‘explain how it came about’. It is unfair to interpret
the
exchange between the appellant and the assessor that I have
quoted as amounting to an admission by the appellant that he was
fabricating
a version to explain the location of his injuries.
[19] Sixth, the court
a quo
failed to have regard
to the appellant’s obvious merits as a witness. The appellant was
cross-examined in minute detail by the
prosecutor. He did not put a
foot wrong. His version was consistent throughout. None of this is
mentioned in the judgment of the
court
a quo
. Instead, there
is a finding that the appellant ‘did not make a good impression on
the court’. It is difficult to fathom from
the record why not. His
version was said ─ repeatedly ─ to be ‘highly improbable’ and
‘riddled with improbabilities’.
I have already dealt with the
proper approach to be followed in criminal cases when probabilities
are considered and the more important
improbabilities relied on in
the judgment. They were without foundation. So are the remainder. I
shall deal with two more.
[20] The court
a quo
found that on the
appellant’s version he had only fired three shots (which is not so
─ he said that in addition to shooting deceased
1 and 2 he had
fired at deceased 3 twice or three times); but six bullets were found
in his firearm, which was loaded with fourteen
bullets; so, asked the
court
a quo
, what happened to the other five bullets? The
answer is that no-one knows because the appellant was not asked. The
issue was simply
not canvassed in evidence at any stage with any of
the witnesses. In the circumstances, the apparent discrepancy ─ for
what it
might be worth ─ could not be held against the appellant.
[21] The court
a quo
reasoned:
‘
Further
according to the version put to the witnesses, when the state
witnesses Gray and Davis later found him at the shop lying on
the
floor at least one of them put a firearm on his head but did not
fire. It is indeed peculiar how the two would have managed to
get to
the accused in the presence of the police and the paramedics and
would have managed to produce a firearm and act in the manner
that
they did without repercussions. What is even more amazing is that no
shot was fired at all.’
The
criticism of this evidence is entirely misplaced. It is not peculiar
at all that the two state witnesses managed to get to the
accused at
the place he was arrested. This fact was common cause. So was the
fact that Gray was armed and the fact that both he and
Darryl Davis
were hostile to the appellant. Nor is it amazing that no shot was
fired. Whoever did so would have been arrested immediately
by the
flying squad who were on the scene and charged with murder. And in
any event the evidence does not disclose whether there
were
repercussions or not; this question was similarly not canvassed
during the trial.
[22] It goes without saying that it is a requirement of
the fair trial guaranteed by s 35(3) of the Constitution that if a
court intends
drawing an adverse inference against an accused, the
facts upon which this inference is based must be properly ventilated
during
the trial before the inference can be drawn.
[23] All in all, if regard is had to the principal
shortcoming in the State case, namely, that it does not explain how
the appellant
came to sustain the wounds which it is common cause he
did; to the performance of the appellant in the witness-box, and the
shortcomings
of the principal witnesses called on behalf of the
State; and to the misdirections in the judgment of the court
a
quo
, both factual and legal, it cannot be said that the guilt of
the appellant was proved beyond a reasonable doubt. Furthermore, the
fact that the court
a quo
prevented proper cross-examination
of the principal State witness had the effect that the appellant was
not accorded his right to
a fair trial. The appeal is allowed and the
convictions and sentences are set aside.
______________
T D CLOETE
JUDGE
OF APPEAL
Concur: Zulman JA
Mlambo JA
1
2006
(2) SACR 291
(SCA) para 11.
2
2001
(4) SA 1
(SCA);
2001 (2) SACR 185
(SCA);
[2001] 4 All SA 579
(SCA),
para 30.
3
1999
(2) SA 79
(W) at 82D-E;
1999 (1) SACR 450
(W) at 450b. The passage
has been repeatedly quoted with approval by this court: see eg
S
v Van Aswegen
2001(2) SACR 97 (SCA) para 8;
S v Trainor
2003 (1) SACR 35
(SCA) para 8;
Stevens v S
[2005] All SA 1
(SCA) para 18; and
S v Gentle
2005 (1) SACR 420
(SCA) para
27.
4
Above
n 3 at 430j-431a.
5
1989
(1) SA 821
(A) at 843F-844B.
6
S
v Jaipal
[2005] ZACC 1
;
2005 (1) SACR 215
(CC) para 39.
7
R v Ntshangela
1961 (4) SA 592
(A) at 599;
S v Cele
1965 (1) SA 82
(A) at
90H;
S v Pretorius
1991 (2) SACR 601
(A) at 609h-j, all of
which must now be read subject to what the Constitutional Court said
in
S v Jaipal
, above n 6.
8
Eg
President of the RSA v South African Ruby Football Union
2000
(1) SA 1
(CC) paras 77 to 80;
S v M
2006 (1) SACR 135
(SCA)
para 40.