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[2011] ZAFSHC 184
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Meiring v S (A29/2009) [2011] ZAFSHC 184 (10 November 2011)
FREE STATE HIGH COURT,
BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. :A29/2009
In
matter between:
BAREND JACOBUS
MEIRING
….............................................
Appellant
and
THE STATE
….......................................................................
Respondent
CORAM :
C.J. MUSI, et VAN ZYL,JJ et MATLAPENG,AJ
HEARD ON:
25 OCTOBER 2010
JUDGMENT BY:
C.J
.
MUSI, J
DELIVERED ON:
10
NOVEMBER 2011
____________________________________________________
[1] I have read the
judgments of my sister Van Zyl J and my brother Matlapeng AJ in this
matter. My analysis of the evidence unfortunately
yields a result
which is at variance with my sister’s conclusion. I am
constrained to withhold my assent to her judgment.
[2] The facts are
extensively set out in the two judgments mentioned above. I therefore
do not deem it necessary to repeat it herein.
The proceedings, in the
court
a quo,
were recorded in longhand by the magistrate. It
is not a reconstruction as Van Zyl J states in her judgment. There
will be no recording
of the
ex tempore
judgment because it was
not recorded mechanically. We have the magistrate’s reasons for
her judgment. We have a full transcript
of the record. The appellant
did not complain or allege that he was prejudiced by the manner in
which the record was kept.
[3] I agree with my
colleagues’ exposition of the legal principles and approach as
to the onus and the evaluation of evidence
in a criminal case.
[4] In considering the
nature, number and impact of contradictions it must always be
remembered that witnesses do not always make
a blow by blow mental
recording of an incident. In many instances witnesses do not even
realise that they would be called upon
to testify and be subjected to
cross-examination about an incident. It is important when assessing
the impact of a contradiction
to weigh it up against the other
evidence tendered in the particular case. Contradictions should not
be evaluated without placing
them in their proper context.
[5] An all or nothing
approach, i.e. two or more state or defence witnesses contradicted
each other therefore the state’s
case or the defence’s
case should be rejected or they corroborate each other therefore
their evidence must be accepted, should
not be adopted. One witness
should not be crucified for the sins of another. It goes without
saying that two witnesses may see
the same incident differently for
different reasons, for example, their power of observation, retention
concentration and narration.
[6] When two or more
witnesses contradict each other it might be that the one witness did
not pay proper attention to the incident
or because he/she cannot
remember exactly what happened whereas the other witness observed and
recalls everything. Proper attention
must be given to the reasons or
probable reasons for the contradictions. An all or nothing approach
like a compartmentalized approach
is flawed, unhelpful and inimical
to the holistic approach that ought to be followed.
[7] A court of appeal
does not lightly interfere with the credibility findings of the trial
court. I however, agree with Van Zyl
J and Matlapeng AJ, for the
reasons stated by them, that the magistrate did not properly motivate
her credibility findings in favour
or against the witnesses. We are
therefore at large to make our own assessment of the evidence. See
S
v Nkosi
1993 (1) SACR 709
(A) at 711 E.
S v Francis
1991
(1) SACR 193
(A) at 204 c-e.
[8] Van Zyl J is of the
view that the two state witnesses contradicted each other on material
aspects. She points to three material
contradictions. I deal with
them seriatim.
[9] Firstly she points
out that the complainant testified that the spotlight was shone in
his face when the appellant’s car
stopped next to the police
vehicle whereas Ms Nyanzela testified that the spotlight was shone on
the car after the swearing.
[10] The question to be
answered is whether it is a material contradiction and if it is
whether it affects the complainant’s
credibility. In my view it
is not material. The appellant testified that:
“
My son put
the spotlight on the face (sic) of the occupants of the said vehicle
and ordered (sic) him not to do so but put it towards
the ground
which he did.”
[11] The appellant
corroborates the evidence of the complainant that his son shone the
spotlight in the complainant’s face.
It is clear that
Nyanzela’s evidence is wrong in this regard.
[12] Secondly she points
out that according to the complainant the appellant swore at him and
took the car’s keys while the
former was still seated in the
vehicle. According to Nyanzela the complainant first alighted from
the vehicle, the appellant then
took the keys and only thereafter did
the swearing start. Van Zyl J correctly concludes that there are
contradictions as to exactly
which profanities were allegedly
uttered.
[13] The contradictions
might be material but they are not an indication of the mendacity of
the witnesses. Again it is clear from
the appellant’s and the
complainant’s versions that the appellant spoke to him while he
was still seated in the car.
The appellant’s version in
relation to this incident is as follows:
“
This man
told me he is going to drive away and I removed the key from the
ignition.”
[14] The complainant’s
version is as follows:
“
Accused then
pulled out the car keys then I alighted from the vehicle. He then
tried to use the radio in the police vehicle.”
[15] It is clear that
Nyanzela is genuinely mistaken when she testified that the appellant
uttered the words after the complainant
had alighted from the
vehicle, for the simple reason that the appellant and the complainant
corroborate each other that the complainant
was seated in the car
until after the keys were removed from the ignition.
[16] Thirdly she points
to the fact that words other than swear words were uttered which
Nyanzela understood whereas she testified
that she does not
understand Afrikaans. Nyanzela was adamant she heard the words being
uttered by the appellant. She corroborates
the complainant’s
version. Even if it is found that she could not or did not hear any
of the words uttered by the appellant,
it still does not detract from
the complainant’s evidence. The fact that Nyanzela lied or did
not remember well what happened
does not mean that the complainant is
a liar or that his evidence should be rejected. The merits, demerits
and probabilities of
his evidence should be examined in the light of
the totality of the evidence. If that is done it becomes clear that
his evidence
is credible and reliable.
[17] I have already
pointed out that the contradictions between the complainant’s
and Nyanzela’s versions are because
of Nyanzela’s lack of
attention to detail. The complainant’s version in as far as it
is contradicted by her is confirmed
by the appellant. I am therefore
not surprised that Van Zyl J does not point to a single inherent
improbability in the complainant’s
version. She also does not
point to a single contradiction in his evidence. She finds flaws in
his evidence by comparing it with
that of his colleagues, Inspectors
Lindeboom and Muller.
[18] Inspectors Lindeboom
and Muller, as the magistrate correctly found, contradicted each
other. They were biased against the complainant.
Their evidence was
palpably geared towards favouring the appellant against the
complainant. I do not want to speculate on the reasons
for their bias
but the record speaks for itself. Their improbable, contradictory and
fabricated evidence is the proverbial elephant
in the room. I
highlight a few issues to substantiate my view.
[19] Lindeboom received a
cell phone call from a colleague in distress because the appellant
took the police vehicle’s keys.
When the appellant arrived at
the police station he was angry according to Lindeboom. He spoke to
the appellant and the appellant
gave him his version and apologised
for his behaviour. When the complainant arrived at the police station
he (Lindeboom) did not
ask him for his version of the events. Why
not?
[20] According to
Lindeboom he asked the complainant whether he wanted to lay a charge
and the complainant said no. Both Muller
and Lindeboom initially
testified that the complainant said no, without qualification, when
he was asked if he wants to lay a charge.
This version was never put
to the complainant and secondly both witnesses later testified that
he said no he wants to speak to
the Station Commander first. Both of
them mention the qualification as an afterthought. Why?
[21] Lindeboom testified
that:
“
Mr Meiring
opened the door to step out of police station (sic) then sergeant
Mahlelehlele entered, the farmer turned and said to
me here is the
man.
Sergeant
Mahlelehlele raised his hand and pointed a finger at Meiring saying I
will beat you or shoot you.
I then asked sergeant to keep quite.”
(My
underlining)
[22] Muller testified as
follows:
“
But on the
night of the incident after sergeant Mahlelehlele stepped in (sic)
the police station and
said
to Mr Meiring that he will shoot him and Inspector Lindeboom enquired
if he wanted to lay charges he said no
but later learnt about the same.” (
My
underlining)
[23] The appellant
testified as follows about the happenings at the police station:
“
I stepped
outside the police station and saw the police officer with which I
had (sic) earlier conquered (sic) on the road, he was
alone and asked
(sic) him where his companion was. He said I must not intimidate him.
I
went back to Lindeboom and the complainant pointed a finger at my
nose and told me to stop in the presence of Lindeboom, Muller
and
other police officer (sic). I took off his hand for the first time
but again (sic) pointed a finger under my nose and Lindeboom
had to
come out to take him away. When I left I heard him say if I don’t
stop he is going to shoot me saying that to Lindeboom
and Muller.”
(
My
underlining)
[24] Not only do the two
police officers contradict each other but they also materially
contradict the appellant. It is clear that
the police officers are
economical with the truth. If the complainant uttered these words to
the appellant directly surely the
appellant would have heard it. The
appellant’s evidence is clear, he heard the complainant saying
to Lindeboom that if he
(appellant) does not stop he will shoot him.
He heard nothing about being beaten up or words to that effect.
[25] Significantly,
during cross-examination it was put to the complainant that:
“
Both
Inspector Lindeboom and Muller will confirm that you said to accused
“ek gaan jou bliksem, ek sal jou doodskiet.”
The complainant’s
response to this statement was as follows:
‘
They will be
lying, what happened is that in accused (sic) absence I said if
accused should continue like that he will be short
(sic) dead or be
bliksemed (sic).”
[26] The probabilities
favour the complainant’s version. He said this in the
appellant’s absence and the appellant,
Muller and Lindeboom,
for whatever
reason or motive, concocted their
versions relating to what the complaint said. That is why their
versions are so incoherent and
contradictory. The complainant’s
unexplained and strange migration from a meek lamb, at the farm road,
to a roaring lion,
at the police station, is improbable.
[27] Both the complainant
and the appellant testified that they met outside the police station.
Both Muller and Lindeboom testified
that the complainant stepped into
the police station while the appellant was still in the police
station. According to Lindeboom
“
Meiring opened the door
to step out of the police station then Sergeant Mahlelehlele
entered
.” According to Muller “
Sergeant
Mahlelehlele stepped in (sic) the police station and said to
Meiring…”
Why did they both not notice that
the appellant stepped out of the police station where he met the
complainant and spoke to the
complainant before returning into the
police station?
[28] During
cross-examination of Lindeboom the following is recorded:
“
Question:
What you say is new and even different from what was said by accused?
Answer: That is what is contained in
my statement and stand (sic) by it.
Question: Mr Meiring said complainant
pointed a finger at him first time and the second time again and you
had to stop him and as
he was walking away heard (sic) complainant
saying to you and Muller that he will shoot him.
Answer: That is how it occurred
Question: Do you agree that what you
say and what accused said is not the same?
Answer: Correct.”
[29] It is clear that
Lindeboom contradicted himself. This incident could not have happened
as he initially testified and as the
appellant testified.
[30] When Lindeboom was
asked why he did not ask the appellant whether the latter wanted to
lay a charge his response was “
because he asked for the
phone numbers of the station commander and he talked to him on the
phone.”
When he was asked when that happened his
response was that he is not sure. This is strange and a fabrication.
There is no evidence
from the appellant or any other witness that the
appellant asked for and was given the Station Commander’s phone
number and
that he called the Station Commander.
[31] Muller testified
that he sent the complainant to investigate a domestic violence
complaint involving a man and a lady at a
farm. Although this
evidence seems innocuous, it is also meant to cast aspersions at the
complainant’s version. The complainant’s
uncontroverted
evidence was that he went to attend a theft of goods complaint.
Nyanzela corroborates his version. She testified
that her sister
called the police because her sister wanted her to “
give
her the clothes back”.
Muller’s evidence,
viewed in conjunction with the appellant’s evidence, is clearly
calculated to leave an innuendo of
a possible sexual encounter
between the complainant and Nyanzela lurking. Put differently, Muller
wanted the magistrate to reason
as follows: if he was sent to attend
to a domestic violence complaint involving a man and a woman, what
was he doing with a woman
involved in a domestic dispute between two
sisters in the car. It is clear that Muller deliberately mentioned
that the domestic
violence complaint involved a man and a woman to
put the complainant in a bad light. This version was never put to the
complainant.
Neither was it put to Nyanzela that her sister did not
call the police but that the complainant was sent to attend to a
domestic
violence matter involving a man and a woman.
[32] Lindeboom and
Muller’s evidence is improbable because the appellant gave them
his version which must have included: that
the complainant
transported a civilian; that the civilian was wearing his official
jacket; that he had a spotlight that he shone
on the farm and had a
dead rabbit and two dead bucks in the official vehicle. Armed with
all this information which
prima facie
implicates the complainant none of them confronted him
or asked him to explain why he disregarded police policy or standing
orders.
Lindeboom reported the incident to the Station Commander and
made entries in the relevant record books without being favoured with
the complainant’s version. Why does he do that?
[33] Muller’s
unqualified assertion that
“it is not allowed for an
officer on duty to transport a person in a police motor vehicle”
is also not correct. There are many instances where
police are allowed to transport civilians. Seeing that he spoke about
domestic
violence an example relating thereto would be apposite. In
terms of article 8(2)(c) of the National Instruction 7 of 1999 issued
by the National Commissioner of Police:
“
A member
may, only as a last resort, transport a complainant in a police
vehicle to find a suitable shelter if such a vehicle is
available and
there is no other means of transport. In such an event the
complainant must be informed that he or she is being transported
at
his or her own risk.”
[34] Article 10(1)(c) of
Special Force Order (General) 03A/1987/010 also stipulates under what
circumstances civilians may be transported
in an official police
vehicle. He ought to know that. A proper answer would have been that
under certain circumstances it is allowed.
If he wanted to exclude
the circumstance under which the complainant transported Nyanzela he
should have done so and not insinuate
that the complainant acted
outside the boundaries of rigid police policy.
[35] I am convinced that
Muller and Lindeboom’s evidence separately and collectively is
neither credible nor reliable. Their
evidence should be rejected in
as far as it differs from the complainant’s version.
[36] The appellant’s
version is not only improbable but demonstrably false and calculated
to mislead.
[37] According to the
appellant he asked the complainant for his appointment certificate
and the latter refused and said the former
must go and ask the
commissioner where his certificate is. When he told him it does not
work like that the complainant started
making calls from his two
cellphones. On his version nothing untoward happened before the
complainant took out his cell phone to
call his colleagues. This is
highly improbable because at that stage the complainant had no reason
to call his colleagues.
[38] His reason for
removing the keys from the ignition is also a fabrication. He was in
total control at that scene. I agree with
Matlapeng AJ’s
assessment in paragraph 30 of his judgment that the appellant had
scant regard for the complainant.
[39] The appellant made
all sorts of innuendos from trivial ones to serious ones in order to
cast a dark shadow over the complainant’s
evidence and
character.
[40] The evidence that
the complainant had a spotlight was tendered to show that he
(complainant) shone the spotlight in order to
look for sheep that he
could steal. The evidence that Nyanzela was wearing a police jacket
was tendered to show that she was more
than a complainant or suspect.
The evidence that the blue lights of the police vehicle was not
working was meant to insinuate that
the complainant could not have
put on the blue lights when the appellant was approaching. The
evidence that the radio was not working
was led in order to show that
the appellant could not have tried to use the radio. In fact during
cross-examination of the complainant
it was put to him that the radio
not working because the police station was being renovated. When the
accused realised that that
will not work because the unchallenged
evidence of the complainant is that Muller contacted the complainant
via the radio, he changed
tack and testified that the radio did not
work because of poor reception.
[41] I find it strange,
no unacceptable, that he would not swear in front of his son but
would belittle a police officer in the
manner that he did in front of
his son. You do not grab a police vehicle’s keys from the
ignition; open the canopy and throw
out a rabbit or whatever is in
there without the policeman’s consent. His conduct on the day
cannot be described as exemplary.
[42] Even at the police
station he taunted the complainant by asking him about his companion
to the extent that the complainant
had to admonish him not to
intimidate him.
[43] Van Zyl J (in
paragraph 43 of her judgment) says that she finds
“it
improbable that the appellant would have gone to the police station
if he in fact acted in the manner the appellant (sic)
testified. One
would expect that he would rather have avoided the police station if
he made himself guilty of the conduct as alleged
by the complainant.”
[44] I do not agree with
this reasoning. The appellant testified that he went to the police
station to complain. The record then
reads as follows:
“
Question:
What about as now you were satisfied about his identity?
Answer: So that I must have a suspect
in case my sheep were missing.”
[45] The appellant admits
that he was told by Lindeboom that he is committing the crime of
obstructing a police officer in the exercise
of his duties. He went
to the police station knowing that he conducted himself in a manner
that constituted a crime. It is no longer
in the realm of
probability. It is a fact! His evidence is clear:
“
He told me
to give the man the keys as I am now obstructing him in performing
his duties.”
[46] The appellant did
not hesitate to tell a blatant lie. When he was asked what his
complaint at the police station was he said
“it was
about this officer with another person in a police vehicle claiming
to be attending his complaint to fetch clothes
that were already
collected and having a rabbit and two bucks in the police vehicle.”
[47] There is no evidence
about two bucks being found in the vehicle. One can only wonder where
he got the information about the
complainant fetching clothing from
because the complainant did not tell him that. Whilst on this topic;
where did he get the information
that the police vehicle’s blue
lights were not working? Where did he get the information that the
complainant drove 20 km
with Nyanzela contrary to police orders?
Where did he get the information that the police radio was not
working? His version that
he saw in the occurrence book that
complainant drove 20 km in a different direction is clearly a lie.
There is no evidence that
he perused the occurrence book on that
evening or at any other time.
[48] I agree with
Matlapeng AJ that the appellant’s evidence must be rejected in
as far as it contradicts the complainant’s
evidence. I also
agree that the appellant’s failure to call his son as a
witness, under these circumstances, without a reason,
justifies an
adverse inference. I do not agree with Matlapeng AJ that the
appellant is stereotyping the complainant because he
is a black
person. There is no evidence to suggest that he acted in the manner
that he did because the complainant is black. There
is a suspicion
but no evidence to substantiate it. The word “kaffir” was
uttered to hurt and impair the complainant’s
dignity as a black
person. One can only speculate what he would have said and/or done if
the driver of the vehicle was a white
person.
[49] I apologise, on
behalf of the Court, to all concerned, especially the appellant, for
the long delay in delivering these judgments.
I only received the
judgments of my colleagues on 31 October 2011.
[50] I agree with the
conclusion of Matlapeng AJ,
viz
that
the appeal should be dismissed. The conviction and sentence are
confirmed.
_______________
C.J. MUSI, J
On behalf of the
Appellant: Adv. C Snyman
Instructed
by: Symington and De Kok
On
behalf of the Respondent: Adv. A Ferreira
Director
of Public Prosecutions
Bloemfontein
/ms