S v James and Others (86/2003_) [2004] ZAFSHC 22; ; (31 March 2004)

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[2004] ZAFSHC 22
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S v James and Others (86/2003_) [2004] ZAFSHC 22; ; (31 March 2004)

IN THE HIGH
COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No.: 86/2003
In
the matter between:
THE
STATE
and
VUYANE JAMES
Accused
No.1
TSEPO
MONYAKO
Accused No.2
LYNWETH
LOUW
Accused No.3
DAWID
MOTAUNG
Accused No.4
___________________________________________________________
CORAM:
MUSI,
J
___________________________________________________________
HEARD
ON:
24 NOVEMBER 2003
___________________________________________________________
DELIVERED
ON:
31 MARCH 2004
___________________________________________________________
[1] On 9 January 2003 accused number 3, Lynweth Louw,
(the accused) was arrested by Captain Laux of the Serious Violent
Crimes Unit,
otherwise known as the Murder & Robbery Unit, of
Bloemfontein, on the charges forming the subject of this trial. The
charges
relate to an attempted robbery at the Hyperama Supermarket in
Bloemfontein on 26 October 2002. After being questioned by Captain
Laux (Laux) the accused was handed over to Captain Roets with whom
arrangements had been made to conduct a pointing out operation.

Captain Roets (Roets) testified in the trial within a trial and
handed in as Exhibit “L” a document completed by him which sets
out the steps that he took in the pointing out exercise, which
document is entitled “Aantekeninge van uitwysing van toneel”.
It
is a
pro forma
document that is normally completed by an officer conducting a
pointing out.
[2] The crucial portions of this document are, firstly,
paragraph 7 in terms of which the accused’s right to legal
representation
was explained, including the right to legal
representation at the expense of the State and he was advised that he
could contact a
lawyer before it was proceeded further. The accused
indicated that he did have a lawyer but that he would contact him
later. In
terms of paragraph 8 it was explained to him that he was
not obliged to point out anything on the scene or explain anything in
connection
therewith, but that if he did what he pointed out would be
recorded and photo’s taken of same and that any accompanying
explanations
would likewise be recorded. He indicated that he
understood the explanation and would proceed nonetheless. In
paragraph 10 he confirmed
that he was not influenced by anybody to do
the pointing out, that what he would point out are things that he
himself experienced
and were within his knowledge, that he was doing
it voluntarily without any pressure or undue influence or promises.
Detailed questions
were asked of him around this aspect and the
importance thereof was pointed to him. He insisted that there was no
undue influence
and that he was doing it voluntarily. He was asked
specifically how he got to know about what he was about to show and
he said “ek
het gesien wat daar gebeur het”. It was then
proceeded to the scene and he led Roets thereto. After the pointing
out was done,
he confirmed that he was happy with what he had shown
Roets and the explanations made.
[3] All this was confirmed by Roets under oath and his
testimony was not challenged under cross-examination save in one
respect only.
It was put to Roets that the statement quoted above
that the accused had seen what happened was incorrect. It was
suggested that
the accused only knew about these things. Roets
denied this and said that what he wrote in Exhibit “L” is
precisely what was
said by the accused. It will be noted that they
both speak Afrikaans and it was not suggested that there could have
been any language
misunderstanding. It can thus be accepted that the
evidence of Roets is the truth and should be accepted
in
toto.
The averment that Roets incorrectly
interpreted the accused when he wrote that the accused had seen what
had happened was half-heartedly
made and cannot stand in view of
Roets’ categorical response thereto. Roets also pointed out that
he read back to the accused
what he had written and invited the
accused to himself read it, but the accused declined to do so and
preferred simply to sign the
document. As can be seen the accused
signed each and every page of Exhibit “L”.
[4] The crux of the accused’s case is that he had been
unduly influenced by Laux to make the pointing out. It was put to
Roets
in general terms that it is possible that the accused could
have been influenced, but then told to conceal the fact so that
Roets
would not have known about it. Roets conceded that that is
possible, but his full response is instructive:
“Dit is seker moontlik dat hy dit nie wou openbaar het nie, so dan
sou ek dit nie geweet het nie. Ek moet net sê dat die persoon
baie
beslis was dat hy ‘n aanwysing wil doen en indien daar enige,
enige, in my oortuiging, ek nie seker was dat dit wel die geval
is
dat hy dit wou doen nie, sou ek beslis nie voortgegaan het met so ‘n
aanwysing nie en sou ek dan ook die ondersoekbeampte so
ingelig het.”
(Record p.12, line 17-23)
[5] Captain Laux who is also the investigating officer
in the matter and who was next to testify on behalf of the State was
extensively
cross-examined by Mr Pretorius for the accused. This
allegation of the accused that he had influenced the accused to make
the pointing
out was fully canvassed with him. He refuted it at
every turn that it was made in all its different guises. The gist of
his evidence
on the point is that he questioned the accused about his
involvement in the crimes on the basis of certain information that he
had
and the accused admitted what was put to him. The accused then
co-operated and he then gave him a number of options and the accused
opted to do the pointing out. Laux then arranged with Roets to
attend to the accused for this purpose. He says that the accused
also signed a warning statement in which he also makes certain
admissions in line with the decision to co-operate.
[6] Now I observed Laux in the witness-box and have
scrutinised his evidence on the events after the accused was taken
into custody
on 9 January 2003, and I am focusing on what happened
immediately before the accused was handed over to Captain Roets.
There are
other events which have got nothing to do with what
happened in the relevant period leading to the accused making the
pointing out
and about which the defence has made much issue. I
shall deal with these later. For now I am dealing with the evidence
relating
to the questioning of the accused by Laux on the morning of
9 January 2003. I can find no contradictions or any material
discrepancies
in the evidence of Laux. He was cool and collected
throughout and betrayed no discomfort with questions put to him. His
stuck to
his version in spite of extensive cross-examination where
some questions were repeated in different guises. Nor are there any
improbabilities
in his evidence.
[7] The version put to Laux was that he told the accused
that his target was accused number 4 and needed the accused’s
co-operation
to nail down accused number 4. If the accused
co-operated and agreed to place accused number 4 onto the crime
scene, the present
charges against him would be dropped and he would
be made a State witness. In addition, his other pending charges of
robbery of
a bottlestore and car theft would also be dropped. Laux’s
response to this was that he was an experienced senior police officer
and knows that if he did what the accused alleges, he would
jeopardise his own case. He had no need, moreover, to use the
accused
as a witness and at any rate if he had wanted to, the accused
would not have been in court today as he knows what procedure to
follow.
He did not deny the possibility of such improper conduct
being perpetrated, but his point was that he never did it and he was
emphatic
in this respect. I found Captain Laux to be a credible
witness on this crucial aspect of the case. Nor is there any reason
why
he should be disbelieved.
[8] I turn now to the evidence of the accused. The
first difficulty I have with his version as stated above is that he
also says
that he has had previous experiences with members of the
Murder & Robbery Unit of which Laux is second in command as a
result
of which he does not trust them. He never had any previous
dealings with Laux personally, but he does not trust him either. To
confirm that Laux and his colleagues are tricksters he cites as an
example how he was arrested that morning. Laux phoned to say
that he
would be picking him up allegedly in order for the accused to sign
forms in connection with the changed conditions of his
bail in the
cases then pending in the Magistrate’s Court, and had promised that
he would not be detained; whereas in fact Laux
had intended to arrest
and detain him. He was cross-examined by Miss Giorgi for the State
on how he could then trust that Laux would
keep his word on the deal
allegedly struck leading to the pointing out. He became evasive and
merely insisted that that is what
Laux said.
[9] The cogency of the accused’s version is seriously
tainted by his assertion that he did not have personal knowledge of
what he
pointed out to Roets and the accompanying explanations. He
alleges that Laux not only influenced him to do the pointing out, but
also told him what to point out and what to explain to Roets. He
says that Laux drew a sketch plan of the crime scene that he does
not
know and told him where to place the suspects. He thereby implies
that he crammed all that and then repeated it to Roets. This
led to
counsel for the State cross-examining him on aspects of the contents
of the document recording the actual pointing out (which
was however
not handed in and was not seen by me). The cross-examination
revealed a great deal of contradictions, inconsistencies
and
improbabilities. A few examples will illustrate the point.
[10] Some of things reported to Roets could not have
emanated from Laux. For example the accused told Roets that he had
arrived on
the crime scene in a car together with one Mase. This
character is not a known suspect in this case and Laux apparently
knows nothing
about him as he nowhere mentions such a name. It is a
name disclosed for the first time by the accused. Then he gave some
details
which he could not have memorised. For example he told Roets
that one suspect had stood some two metres from a dustbin. When
confronted
about this, the accused denied having told Roets that. He
had all along said that Laux told him that accused number 4 was the
target
and the person that the accused had to plant onto the scene.
When he realised that other people had been placed on the scene as
well, he changed and added accused number 2 and himself. He
initially gave the impression that Laux had even given him directions
as to the route to the scene when in fact he knows that. When asked
how he had directed Roets to the scene, he became evasive and
would
not give a direct answer.
[11] It is unnecessary to go on. Suffice it to say that
the accused’s version is improbable and devoid of any semblance of
truth.
When considered against the background of the largely
uncontested evidence of Roets, Laux’s version on the point is
probable,
and I found him to be a credible witness. The same cannot
be said of the accused. His version that he was unduly influenced by
Laux is rejected as being false beyond a reasonable doubt. I hold
that he engaged in the pointing out exercise freely and voluntarily
and without being unduly influenced thereto. That would conclude the
matter but there are other issues raised in this trial within
a trial
that need to be dealt with and I shall try to do so briefly.
[12] Much was made by the accused and his attorney about
the events of 31 October 2002. The version of the accused is that on
that
day Laux had booked him out from the court cells at the
Magistrate’s offices where he had been appearing on other cases,
and took
him to the offices of the Murder & Robbery Unit where
Laux interrogated him about the instant charges (incidentally he had
been
arrested on the night of the very same day that the attemped
robbery herein was committed. It appears that the arrest took place
in the early hours of 27 October 2002, but the accused curiously
prefers to say that he was arrested on 26 October 2002). He says
that he denied any involvement or knowledge of the crimes; that Laux
told him he was charging him and took his warning statement.

However, Laux never followed up and he was not charged then. Now
Laux denies this and says that he only interviewed the accused
at the
court cells and never took him to his offices. He denies taking any
warning statement from the accused and denies telling
the accused
that he was charging him. In his initial evidence Laux pertinently
denied having booked out the accused. Later Mr Pretorius
applied for
the recalling of Laux after the close of the case for the State. He
then confronted him with a record of an entry made
in the occurrence
book kept at the court cells which shows that Laux had indeed booked
out the accused on that day. Laux admitted
this, but insisted that
he had only taken the accused to another place in the complex where
he questioned him. Thereafter a colleague
of his, Inspector
Tshabalala, took over and went away with the accused as he had been
looking for the accused in connection with
another case that
Tshabalala was investigating. Tshabalala was called pursuant to an
application for reopening of the State case
to counter the new piece
of evidence. Tshabalala confirmed that it is Laux who had booked the
accused out, but that after Laux had
questioned the accused at the
court cells he took over and took the accused to their offices where
he interrogated him. Tshabalala
also revealed for the first time
that Laux had in fact driven alongside in a separate car to and from
the offices of the Murder &
Robbery Unit, but said that Laux had
had nothing to do with the accused at their offices. Back at the
court cells it is apparently
Laux again who booked in the accused.
The explanation for this is that Laux would have done that purely as
a formality seeing that
he was present and had initially booked out
the accused.
[13] The evidence of the accused and that of the two
police officers clearly clashed on this aspect. Mr Pretorius argued
that the
version of the accused is convincing and should be preferred
to that of the police officers. Now there are indeed discrepancies
in the version of the police officers but I do not think that they
were lying as Mr Pretorius suggested. It has to be borne in mind
that the focus of Laux’s earlier testimony was the purpose of the
booking out and not booking out in the narrow sense of making
an
entry in the occurrence book. The booking out was in the context of
Laux taking him out for questioning in his offices. This
Laux
consistently denied and he is corroborated by Tshabalala.
[14] It is, however, unnecessary to engage in a full
evaluation of the evidence and make any definite findings in this
regard. Even
if I should find in favour of the accused and reject
the version of the police officers that would make no difference to
my ruling
on the admissibility of the pointing out evidence. The
events of 31 October 2002 have got nothing to do with what happened
on 9
January 2003. Strictly speaking, all this evidence around the
issue is irrelevant. I allowed it to be canvassed purely on the
insistence
of Mr Pretorius that it would impact on the credibility of
the State witnesses. He also said that it would show a particular
modus operandi
on the
part of Laux. In the event, I do not think that Laux was in any way
thereby discredited. Moreoever, even if a witness is
shown to have
lied on one occasion, that is no basis for holding that he lied on
another different occasion. As for the
modus
operandi
, the argument is that Laux would
have been shown to conduct his investigations in an improper fashion.
In my view nothing of the
sort has been shown. In this regard the
accused was clutching at straws as is shown by the calling of his
co-accused number 4.
The latter had been listening when Laux
testified and yet none of his allegations were put to Laux. At any
rate, these are vague
and generalised complaints about Laux and no
more. Mr Pretorius also tried to lend credence to this allegation of
a sinister
modus operandi
by going outside the evidence led in the trial within a trial and
bringing in evidence led in the main trial. This is the evidence
by
some State witnesses that they had viewed photo’s of the suspects
in the presence of Laux whereas Laux denied that it would
have been
in his presence. That evidence still has to be evaluated and it would
be inappropriate for me to do that now. Moreover,
it is evidence as
to identity and is irrelevant to the instant inquiry. In this regard
Mr Pretorius cited
S v MAYEKISO EN ANDERE
1996 (2) SACR 298
(CPD) at 304-305
. That case
is distinguishable from the present case. In
MAYEKISO
a State witness had, during the course of a trial within a trial,
given evidence that contradicted his evidence in the main case
on the
same aspect.
[15] The last issue to be considered is the evidence of
how the accused was arrested. His version is that Laux phoned him
and told
him that he will be picking him up under the pretext that it
was for the purpose of the accused signing forms in connection with
the changed conditions of his bail relating to cases then pending in
the Magistrate’s Court. He had assured the accused that he
would
not be detained. However, on their way to the offices of the Murder
& Robbery Unit Laux revealed that he was about to
charge and
detain the accused. The accused says that had he known that he would
be arrested he would have left his place in order
to avoid being
arrested. This latter statement raises the question of why run away
if you are innocent. At the same time it lends
credence to his
assertion that he was tricked into waiting for the police. And he is
to some extent supported by his uncle, David
Choantseng. In my view,
Laux’s version on this aspect is less likely. How could a police
detective simply tell a suspect facing
such serious charges that he
is coming to pick him up and expect the suspect to wait? It is more
likely that the bail conditions
story was given as a ploy to get the
accused and that is why as soon as the accused was picked up it was
never repeated. But I do
not think there was anything sinister in it
(and I am not saying that it is in order). Nor do I think that the
accused was prejudiced
thereby. The evidence shows nothing untoward
happening after the arrest of the accused. At any rate, nothing that
could be construed
as undue influence leading to the accused agreeing
to co-operate.
[16] The evidence of Laux is that he had new information
with which he had confronted the accused and the accused admitted
what was
put to him. He then decided to co-operate. It may well be
that the accused thought that his game was up and hence the decision
to co-operate. The fact that he had three months ago denied any
knowledge of the crimes does not mean that he would subsequently
refuse to co-operate, especially when confronted with new
information. Besides, by his own account, the accused is not a
novice
in dealing with the police and he is certainly not a stupid
person who could be misled in the manner that he alleges.
[17] For
those reasons I have ruled the evidence to be admissible.
_____________
H.M. MUSI, J
/scd