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[2008] ZAWCHC 40
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S v Janse van Rensburg and Another (A 689/2007) [2008] ZAWCHC 40; 2009 (2) SACR 216 (C) (24 July 2008)
Republic of South
Africa
REPORTABLE
IN THE HIGH COURT OF SOUTH
AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
No: A 689/2007
In the
matter of
MARIUS JANSE VAN
RENSBURG First Appellant
MARIUS
VISSER Second Appellant
and
THE
STATE Respondent
_______________________________________________________________________
JUDGMENT DELIVERED : 24 JULY 2008
_______________________________________________________________________
MOOSA,
J:
Introduction
The appellants (individually, referred to as first appellant and
second appellant), were convicted, in the district court of
Khayelitsha,
on a charge of assault with the intent to do grievous
bodily harm. On 18 September 2007, they were sentenced to 24 months
imprisonment
in terms of Section 276(1)(i) of the Criminal Procedure
Act, No 51 0f 1977 (âthe Actâ). The appellants appeal to this
court,
with the leave of the court a quo, against both their
convictions and sentences.
Grounds
of appeal
The appellantsâ grounds of appeal are firstly, that the trial
court failed to approach the evidence of the complainant, as a
single witness, with the necessary caution; secondly, that the trial
court erred in accepting the explanation of the complainant
concerning the contradictions and omissions contained in the various
police statements made by him to the police; thirdly, the
trial
court failed to give sufficient weight to the contradictions between
complainantâs statements and oral evidence and between
his
evidence in chief and his evidence under cross-examination and
fourthly, that the trial court erred in making a favourable
credibility finding in respect of the complainant and an adverse
credibility finding in respect of the appellants.
Plea
Explanation
First appellant gave a plea explanation to the effect that he,
legitimately and in accordance with the provisions of Section
49(1)(b)
of the Act, used an official police dog under his control
as an instrument to effect the arrest of the complainant, who was in
the act of fleeing. In the process of affecting such arrest, the
complainant was bitten by the police dog. Second appellant gave
a
plea explanation to the effect that he was present, when first
appellant affected the arrest of the fleeing complainant, but
denied
that the dog under his control was used to affect such arrest or to
assault the complainant.
Findings
of the trial court
The complainant was the only witness for the State. The appellants
testified in their defence and called Inspector Theunis as
a witness
in their defence. Inspector Theunis took two statements from the
complainant. The trial court found that the complainant
did not
deviate from his evidence in chief or contradict himself and gave a
reasonable explanation for the omissions and contradictions
in the
various statements of the incident he gave to the police. The trial
court concluded that he was an honest and truthful
witness and, as a
single witness, his evidence was satisfactory in all material
respects. The court accordingly accepted his evidence.
On the other hand, the court observed that the appellants were very
uncomfortable in the witness stand and was not impressed with
them
as witnesses. The court found that there were too many
contradictions in their version and concluded that their version was
a fabrication. After making certain factual findings and considering
the inherent probabilities on the totality of the evidence,
the
trial court came to the conclusion that the complainantâs version
was inherently true and the appellantsâ version was inherently
false. The court accordingly concluded that the State had proved
the offence against the appellants beyond reasonable doubt and
found
them both guilty as charged.
Conflicting
versions
There are two conflicting versions as to how complainant sustained
the injuries. The Stateâs version is that complainantâs
car was
forced off the road by the marked police car driven by first
appellant; first appellant approached him at the driverâs
side of
his vehicle and asked him:
âWhy are you running away?â
and complainant replied:
âI am not running awayâ
; first
appellant pulled him out of the car and said:
âDis die kaffer
wat baie praatâ
; second appellant handed one dog to the first
appellant; first appellant swore at complainant, threw him to the
ground and instructed
the dog to bite
âthe kaffirâ
;
accused 2, who also had a dog, then set his dog on the complainant
and as a result of the attack by the two dogs, complainant
sustained
the bite wounds. The complainant, prior to the attack had driven
past a taxi that was standing in the middle of the
road. He stopped
his car to ascertain what was wrong. He got out and approached the
taxi. When he noticed that the passengers
were being searched by
two police officers, he returned to his car and drove off. He was
followed by the appellants and pulled
off the road by them.
The version of the defence is that, while doing patrol duty, they
noticed that complainant collided with a stationary Hi-ace vehicle.
The appellants told both the complainant and the taxi driver to
report the accident to the Khayeltisha police station. While
they
were following complainant to the police station, he suddenly
speeded off, went through a few stop signs and almost collided
with
other cars. They gave chase. They noticed that the complainant
slowed down, jumped out of the car, crossed Lansdowne Road
and ran
towards the bushes on the other side of the road. First appellant
ran after the suspect with his dog on a leash. After
warning the
suspect to stop, he let the dog loose and gave it instructions to
catch the suspect. The dog attacked and bit the
fleeing
complainant. While the dog was busy with him, he was apprehended.
Second appellant remained at the car and his dog was
never used to
secure the arrest of the complainant.
Logic dictates that, where there are two conflicting versions or two
mutually destructive stories, both cannot be true. Only one
can be
true. Consequently the other must be false. However, the dictates
of logic do not displace the standard of proof required
either in a
civil or criminal matter. In order to determine the objective truth
of the one version and the falsity of the other,
it is important to
consider not only the credibility of the witnesses, but also the
reliability of such witnesses. Evidence that
is reliable should be
weighed against the evidence that is found to be false and in the
process measured against the probabilities.
In the final analysis
the court must determine whether the State has mustered the
requisite threshold â in this case proof beyond
reasonable doubt.
(See:
S v Saban
& Å Ander
1992 (1) SACR 199
(A)
at 203j to 204a-b;
S v Van der Meyden
1999 (1) SACR 447
(W)
at 449g-j â 450a-b and
S v Trainor
2003 (1) SACR 35
(SCA)
at para [9].)
Evaluation
It is common cause that the complainant was a single witness for the
State. Section 208 of the Act stipulates that an accused
may be
convicted on the evidence of a single and competent witness. This
does not displace an important principle in our law that
the
evidence of a single witness must be approached with caution.
Before the court can place any reliance thereon, the evidence
of a
single witness must be clear and satisfactory in every material
respect. In other words, the evidence must not only be credible,
but must also be reliable. In this respect see:
R v Mokoena
1956 (3) SA 81
(A);
S v Webber
1971 (3) SA 754
(A) at
758G;
S v Sauls and Others
1981 (3) SA 172
(A) at 179G-180G
;
S v Stevens
[2005] 1 All SA 1
(SCA) at 5
and S v Gentle
2005
(1) SACR 420
(SCA) para17.
However, our courts have
repeatedly warned that the exercise of caution should not be allowed
to replace the exercise of common
sense. (
S v Artman and Another
1968 (3) SA 339
(A) at 341C.)
A perusal of the judgment discloses that the trial court failed to
critically evaluate complainantâs evidence as a single witness.
It does not appear that the trial court had warned itself against
the non critical acceptance of the evidence of a single witness
nor
does it appear that it treated such evidence cautiously. (
See S
v Heslop
2007 (1) SACR 461
(SCA) at para 14.)
After
critically analysing the evidence of the appellants, the court
concluded that the complainantâs evidence was satisfactory
in all
material respects. That conclusion is not borne out by the evidence
as contained in the record and, in my view, amounts
to a
misdirection.
A close scrutiny of a conspectus of
the evidence shows that there are a number of contradictions in the
evidence of the complainant.
They are to be found firstly, in the
four statements complainant gave to the police; secondly, between
these statements and the
oral evidence the complainant gave in
court; thirdly, between his evidence in chief and his evidence
under cross-examination and
fourthly, between the version of the
complainant and that of the appellants.
I will briefly refer to some of these contradictions. They are:
whether first appellant was implicated or both appellants were
implicated in the commission of the offence; whether complainant
came from work or friends on the evening of the incident; whether
he was on the way to the police station to report the accident or on
the way home; whether first or second appellant pulled him
out of
the car and whether first or second appellant put the dog on him or
whether both pulled him out of the car and put their
dogs on him;
whether or not he knew that the police vehicle was following him;
whether the blue lights were flashing and the
siren was wailing.
There are also conflicting versions between that of the complainant
and that of the appellants as to what transpired
during the critical
period of the incident which forms the basis of the charge against
the appellants. Individually these contradictions
and omissions may
not necessarily be material, but collectively they impact negatively
on the credibility of the complainant.
The favourable credibility
finding of the trial court is therefore not borne out by the record
or the evidence.
The time span for the taking of the four statements of the
complainant by the police stretched over a period of approximately
five years. The first statement was taken by Constable Vapi on 20
July 1999. The second statement was taken by Inspector Theunis
on
25 August 2000, more than one year later. The third statement was
taken by Inspector Theunis on 2 October 2003 more than three
years
after the incident. The fourth statement was taken by Inspector
Cloete on 16 August 2004, more than five years after the
incident.
The parties testified more than seven years after the incident. The
time lapse, in my view, accounts for the poor quality
of the
evidence of both the complainant and the appellants.
It is generally accepted by our
courts that the memory of witnesses to recall or remember events
fades with the passage of time.
Inspector Theunis conceded that,
because of the lapse of time, his ability to recall the details or
the circumstances under which
the two statements were taken was
limited. He testified that he does not have an independent
recollection of the taking of the
two statements. However, in his
line of duty, it is his practice, when taking a statement from a
witness, to get the deponent
to read the statement or if he or she
cannot read, the witness reads the statement to him or her. If the
deponent is satisfied
with the contents, he then administers the
oath. The complainant testified that Constable Vapi read over the
statement to him
before he appended his signature thereto. Whereas
the statements by Inspector Theunis were not read over to him nor
was he given
an opportunity to read them himself. It is highly
improbable that the complainant can, after seven years,
categorically remember
that the statements were either not read over
to him or that he was not afforded an opportunity to read the
statements himself.
The complainant explained the omissions and contradictions in the
police statements in his evidence under cross-examination, as
follows:
â
Mr
Maartens: â¦Why not in one of these (three) statements is the word
about the insulting language which is deeply insulting not
mentioned?
--- I can look at the statements your Worship, they wrote what I did
not say.
Court:
Just hold on, I just want to reflect on what you said now, youâre
saying in the statements they wrote things that you did
not say? ---
They wrote what I did not say.
Things that you said they didnât write? --- Itâs not clear.
Are you saying things that you said they didnât write and things
that you didnât say they wrote? --- Yes.â
The complainant tarnishes, with the same brush, all the police
officers who took statements from him. It is highly improbable
that
all the police officers who were involved in the investigation of
this matter, would have made themselves guilty of the conduct
alleged by complainant. The complainantâs signature is reflected
on all the statements. It appears that he is a literate person
and
occupies a responsible position at his work. It is unlikely that
the complainant would have appended his signature to the
statements
without satisfying himself that the contents were correct. These
omissions and contradictions were not evaluated by
the trial court
in its judgment. The court merely concluded that the complainant
gave a good explanation for the various statements.
This does not
appear to be the case if we examine his evidence critically.
From the record it appears that the evidence of the appellants was
equally unsatisfactory and contradictory. This is confirmed
by the
trial courtâs findings. There are a number of contradictions:
firstly, between their evidence in chief and their evidence
under
cross-examination and secondly, between the evidence of the first
appellant and that of the second appellant. They contradicted
themselves as to how the collision between the stationery Hi-Ace and
complainantâs vehicle occurred and in which direction complainant
was driving immediately before the alleged collision. Complainant
denied that there was a collision. There is no evidence that
the
collision was reported to the police station either by the
appellants, the driver of the Hi-Ace taxi or the complainant.
Another version was put to the complainant by appellantsâ counsel,
namely, that the appellants were driving behind the complainant
when
they saw the collision and witnessed complainant driving away from
the scene of the collision. The version of the appellants
as to how
the collision occurred and in which direction the complainant was
driving is not only contradictory but also highly improbable.
It is
highly unlikely that a collision occurred as alleged by appellants.
It is more probable that no collision took place as
alleged by the
complainant.
The dictum of
Brand AJA
(as he then was) in
S v Shackell
2001 (2) SACR 185
(SCA) at para 30 sets out in clear and concise
terms the approach to be adopted in evaluating the sort of evidence
found in the
present case under consideration. It reads as follows:
â
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 accusedâs version is true. If the accusedâs
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 accusedâs 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 the final and crucial step.â
In evaluating the evidence the court
must evaluate all the evidence irrespective of the nature and
quality of the evidence.
Nugent J
(as he then was) observed
in
S v Van der Meyden
(
supra
) at 450b
as
follows:
â
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.â
In this matter we are faced with two
conflicting versions. There are no objective facts to support
either version. The medical
evidence is neutral and is consistent
with either version. However, what impacts on the credibility of
complainant is the denial
by him that he had consumed liquor that
day. The medical report indicates that complainant had
âalcohol
on his breathâ
. This negates his evidence that he had not
consumed any liquor. Both versions are tainted with unsatisfactory
features. The
complainant is a single witness and in the light of
all the omissions and contradictions, I do not agree with the
findings of the
trial court that the evidence of the complainant was
satisfactory in every material respect. The version of the
appellants, although
highly suspect, cannot, on the totality of the
evidence and the probabilities, be said to be not reasonable
possibly true or false
beyond reasonable doubt. In our view the
State has failed to cross the threshold of proof beyond reasonable
doubt. The trial
court, in our opinion, convicted the accused on a
balance of probabilities. In the circumstances, the appellants
ought to have
been given the benefit of the doubt. (
S v Jaffer
1988 (2) SA 84
(C);
S v Heslop
(supra)
.)
Statutory Justification
Counsel suggested that we consider whether or not first defendant
forfeited the protection afforded him in terms of Section 49
(1) of
the Act on his own version. I do not agree. It is common cause
that complainant sustained certain injuries as a result
of dog
bites. The medical report described the injuries as
âmultiple
dog bites on both hands, both legs, between eyesâ.
There are
two conflicting versions under what circumstances these injuries
were sustained. Because of the conflicting versions
and the quality
of the evidence as whole, we cannot make a finding which version is
beyond reasonable doubt true and which version
is beyond reasonable
doubt false. In my view the State has not passed the threshold of
proof beyond reasonable doubt in respect
of the assault with intent
to do grievous bodily harm to put first appellant to his defence in
terms of Section 49(1) of the Act.
The evidential burden to show,
on a balance of probabilities, that those factors which excuse him
in terms of Section 49(1)(b)
of the Act were present, therefore,
does not arise.
I am supported in this conclusion by
the dictum of Du Toit
et al
in
Commentary on Criminal
Procedure
at page 5.25 to the effect that where a police
official is charged with assault with intent to do grievous bodily
harm on the ground
that more force than was necessary was used to
prevent a suspect from escaping, it is the duty of the State to
prove beyond reasonable
doubt that he committed the offence. Once
the State has discharged such onus, the accused will have to prove
on a balance of probability
that he complied with the requirements
of Section 49(1)(b) of the Act before his conduct may be statutorily
justified.
(See also: Hiemstra:
Suid Afrikaanse
Strafreg
by Kriegler (Sixth Edition) at page 110.)
Findings
I am of the view that the trial court in coming to its conclusion to
convict the appellants, firstly, failed to account for all
the
evidence (
S v Van der Meyden
(
supra
) at 450b);
secondly, the court convicted the appellants on a balance of
probabilities instead of proof beyond reasonable doubt
(
S v
Shackell
2001 (2) SACR 185
(SCA) at para 30); thirdly, that the
finding of the court that the evidence of the complainant, as a
single witness, was satisfactory
in every material respect is not
borne out by the record (
S v Gentle
(
supra
) at para
17); fourthly, that the court failed to warn itself that the
evidence of complainant, as a single witness, must be approached
with caution (
S v Stevens
[2005] 1 All SA 1
(SCA) at p 5) and
fifthly, that the court had only considered the merits of the
complainants evidence and failed to consider the
demerits of such
evidence.
Order
For the reasons given, I am of the view that the appeal should
succeed and the conviction and sentence of each of the appellants
should accordingly be set aside.
â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦..
E MOOSA
LE
GRANGE, J: I agree.
â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦..
A LE GRANGE
M Janse van
Rensburg & Another v The State
Cont/â¦