S v Jantjies (CA&R 105/04) [2004] ZANCHC 92 (2 December 2004)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2004
>>
[2004] ZANCHC 92
|

|

S v Jantjies (CA&R 105/04) [2004] ZANCHC 92 (2 December 2004)

Reportable: Yes /
No
Circulate to
Judges: Yes / No
Circulate
to Magistrates: Yes / No
IN THE HIGH COURT
OF SOUTH AFRICA
(Northern Cape
Division)
Case no: CA&R
105/04
Date
heard: 2004-12-02
Date
delivered: 2004-12-02
In
the appeal of
:
MOSES
JANTJIES APPELLANT
versus
THE
STATE RESPONDENT
Coram:
MAJIEDT J et WILLIAMS J
JUDGEMENT ON APPEAL
MAJIEDT
J:
The
appellant was convicted of murder and assault with the intent to do
grievous bodily harm. He was sentenced on the first count
to 10
years imprisonment and on the second count to 18 months
imprisonment. The trial court ordered that the sentence on the

second count run concurrently with that on the first. The appellant
now appeals against both conviction and sentence.
The
appellant was accused of murdering his girlfriend on 8 December
1995. It is worth noting at this early stage already that the
matter was heard some 6 years after the event aforementioned, with
the result that witnesses’ recollection and memories had faded
considerably by the time the matter came to trial. The appellant
was also accused of assaulting the state witness Juanita van
Wyk by
stabbing her once in the shoulder. The appellant pleaded not guilty
on both counts and exercised his right to remain silent.
He was
represented by an attorney during the trial.
Juanita
van Wyk was the only eye witness on both counts. She testified that
on the day in question the appellant had had a quarrel
with his
girlfriend, the deceased. She intervened and the deceased then
requested the appellant to leave, which he did. According
to
Juanita, the appellant returned shortly thereafter, some 5 minutes
later in fact, brandishing a knife which he used to stab
her
(Juanita) on the shoulder, and thereafter stabbed the deceased
thrice. According to her the stab wounds were on the deceased’s
chest, neck and back. I must immediately point out that Juanita’s
description of the location of the wounds as aforementioned,
are in
direct contrast with the location of the wounds as described in the
post
mortem
report which had been handed in at the trial as an exhibit by
agreement between the parties. According to that report the
deceased
had sustained only 2 stab wounds, namely on her neck and
in her shoulder region. This discrepancy was not picked up at the
trial
at all. Consequently the magistrate did not deal with it in
his judgement. Moreover, neither of the counsel appearing before us
at the appeal dealt with the matter in their heads of argument. I
shall revert to this aspect again when I evaluate the credibility
of
Juanita van Wyk as a witness.
According
to Juanita, the appellant fled the premises after he had stabbed her
and the deceased. Juanita then went to sit under
a verandah. The
deceased ran outside and fell there. Juanita did not receive any
medical treatment for her stab wound. When
she walked to the spot
where the deceased was lying, it was clear that the deceased was
already dead. According to her there was
sufficient light in the
vicinity where the stabbing had taken place.
Under
cross-examination a number of contradictions in Juanita’s oral
testimony as well as contradictions between her
viva
voce
evidence and her witness statement was brought to the fore to which
I shall allude later.
Khagiso
Kwela was the next state witness who testified that the deceased in
the matter had been his cousin. He was at the place
where she was
murdered on the day in question – this house belongs to his
brother who was selling liquor there. On that day
he could see that
the appellant and the deceased had had an argument, which apparently
concerned the appellant having been suspicious
of the deceased
having an affair with another man. He heard shouting after a while
and the deceased shouted that she had been
stabbed by her boyfriend.
He saw the appellant running away and followed him. The appellant
fell a short distance away and he
found a knife on the appellant.
Under cross-examination the witness conceded that in fact he did not
hear his cousin (the deceased)
shout that it was the appellant who
had stabbed her; she merely shouted that she had been stabbed.
Inspector
Samuel Nkosi was the last state witness. He testified that on the
day in question he was called out to the scene with
a message that
somebody had been killed there. Upon his arrival he found the
deceased lying in the street. He also found the
previous witness
Khagiso Kwela there who handed the appellant to him. He searched
the appellant and found a knife in his left
trouser pocket. This
knife had been bloodstained. The appellant was then arrested and the
knife confiscated. This knife was
handed in during the trial as an
exhibit.
The
appellant testified in his defence. His version was that he did in
fact have an argument with the deceased on the day in question.
He
had then left to take two children away to another house and upon
his return various people accused him that he had stabbed
the
deceased. He denied that he had anything to do with the assault
upon the deceased or Juanita van Wyk and he also denied that
he had
a knife in his possession on the day in question.
Mr
Mathewso
n
for the appellant has drawn our attention to various contradictions
in the testimony of the state witnesses. I have already alluded
to
the contradictions in the testimony of Juanita van Wyk, the single
eyewitness. There were also contradictions between Kwela
and Nkosi
relating to the knife allegedly confiscated from the appellant.
Kwela had testified that he himself had found the knife
upon the
person of the appellant and he had handed it to Nkosi when the
latter had arrived on the scene. Nkosi on the other hand
testified
that it was in fact he who had found the bloodstained knife in the
left trouser pocket of the appellant.
It
is indeed so that there are a number of contradictions in the
evidence of the state witnesses. Some of these contradictions
are
more important than others. A crucial factor which bears
consideration when assessing the importance of these various
contradictions,
is the fact that this matter came to trial some six
years after the event. Consequently it is to be expected that
witnesses’
memories must have faded considerably during this time.
Of course this applies equally to the state witnesses and to the
appellant.
In considering the importance of the contradictions in
their evidence, this particular factor needs therefore to be brought
into
the equation.
The
magistrate exercised the requisite caution in assessing the evidence
of Juanita van Wyk, because he was mindful of the fact
that she was
a single witness to the stabbing itself. He also exercised caution
in assessing her evidence of the identification
of the appellant as
the assailant. With regard to identification, it is clear that the
appellant placed himself on the scene.
It is also clear that he was
seen before the stabbing and immediately thereafter by people other
than Juanita van Wyk. It is
also quite apparent that Juanita knew
the appellant very well. I am also of the view that on all the
evidence before the trial
court that there had been sufficient
lighting at the scene to enable Juanita to identify the appellant.
Corroboration
for the testimony of Juanita as a single witness is to be found in
the following:
a) The
fact that a bloodstained knife was found upon the appellant
immediately after the stabbing. In this regard I am mindful of
the
contradiction on this aspect between the witnesses Kwela and Nkosi.
I prefer the evidence of Nkosi to that of Kwela. The latter
was very
unsure of himself and in fact conceded more than once that his memory
may have failed him on important aspects, given the
lapse of time
since the event had taken place. Nkosi appeared to be more certain
of his evidence and could certainly not have made
a mistake on such
an important aspect as the discovery of a bloodstained knife in the
trouser pocket of the appellant. He had also
confiscated the knife
and brought it to the court where it was handed in as an exhibit at
the trial.
b) The
fact that the appellant places himself on the scene before the
incident, coupled with Kwela’s testimony that he had seen
the
appellant and the deceased arguing shortly before the stabbing
incident.
c) Kwela
corroborates Juanita van Wyk’s evidence that the appellant had run
away from the scene after the stabbing.
In
S
v Mkohle
1990(1) SACR 95 (A) at 98 f-h Nestadt JA remarked as follows:
“
Contradictions
per
se
do not lead to the rejection of a witness’ evidence. As
Nicholas J, as he then was, observed in
S
v Oosthuizen
1982(3)
SA 571 (T) at 576 B-C, they may simply be indicative
of an error. And (at 576 G-H) it is stated that
not every error
made by a witness affects his credibility; in each case the trier of
fact has to make an evaluation; taking into
account such matters as
the nature of the contradictions, their number and importance, and
their bearing on other parts of the witness’
evidence.”
With
regard to Juanita van Wyk I am of the view that the approach should
be that her evidence ought to be accepted only in those
instances
where it has been corroborated by other acceptable evidence or by
the objectively proved facts. I have already shown
that there was
sufficient corroboration for her evidence on important aspects.
With regard to the discrepancy between her evidence
on the location
of the wounds of the deceased and the
post
mortem
report,
it is important to note her actual evidence in this regard. In her
evidence in chief she testified as follows:
“
So, did you see
all three times of the accused’s stabbed at the deceased? --- I
see that his hand was moving three times towards
her.”
I
therefore do not regard this particular contradiction of such
importance as to impact negatively on her credibility. The rest of
the contradictions in her own testimony and in her testimony compared
to that of Kwela, are in my view explicable on the basis of
the
lapsed time between the event and the date of the trial.
The
magistrate correctly rejected the appellant’s evidence as false
beyond reasonable doubt. His testimony does not explain why
the
witness Kwela would have chased after him if, as the appellant
alleged, he was innocently returning from his house after having
taken two children away. He also does not explain the presence of
the knife in his possession, in fact he denies it.
A
further factor to be considered is the fact that all the witnesses,
with the exception of inspector Nkosi, had been to some or
other
degree under the influence of liquor during the night in question.
This obviously affected their powers of observation.
This of course
equally applies to the appellant. I have, however, no doubt
whatsoever in my mind that the appellant was a lying
witness and
that the magistrate had correctly found that it was in fact he who
had stabbed the deceased and Juanita van Wyk.
Consequently
I am of the view that the conviction is in order.
The
incident occurred before the advent of Act 105 of 1997 (“
the
Act
”)
which introduced a minimum sentences for certain offences. In the
instant matter the appellant would have faced a minimum
sentence of
15 years imprisonment on count 1 (murder), had the provisions of the
Act been applicable. There is some suggestion
that this was an act
of jealousy on the part of the appellant in stabbing the deceased,
his girlfriend. Be that as it may, I am
of the view that the
sentence imposed cannot be said to be shockingly excessive, nor has
our attention been drawn to any misdirection
on the part of the
magistrate. The test is not whether we would have imposed the same
sentence, but whether we find it shockingly
excessive. I am of the
view that the sentence is appropriate in the circumstances and the
appeal must also fail on this aspect.
The
appeal fails. The appellant’s conviction and sentence on both
counts are confirmed.
___________
SA
MAJIEDT
JUDGE
I
concur:
___________
CC
WILLIAMS
JUDGE
FOR
THE APPELLANT : Mr A Mathewson
FOR
THE RESPONDENT : Adv C Jansen
DATE
OF HEARING : 2004-12-02
OF
JUDGEMENT
: 2004-12-01