S v Joors (0033806) [2003] ZAWCHC 59; [2003] 4 All SA 628 (C); 2004 (2) BCLR 217 (C); 2004 (1) SACR 494 (C) (1 November 2003)

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[2003] ZAWCHC 59
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S v Joors (0033806) [2003] ZAWCHC 59; [2003] 4 All SA 628 (C); 2004 (2) BCLR 217 (C); 2004 (1) SACR 494 (C) (1 November 2003)

Reportable
IN THE
HIGH COURT OF SOUTH AFRICA
(CAPE OF
GOOD HOPE PROVINCIAL DIVISION)
REVIEW CASE NO. 0033806
BREDASDORP
MAGT. CT. CASE NO. 1089/2002
In the matter between:
THE STATE
and
STEVEN JOORS
REVIEW JUDGMENT
BINNS-WARD AJ
:
The accused was convicted by the magistrate at Bredasdorp on a charge
of assault with intent to cause grievous bodily harm. He was
a first
offender. He was sentenced to 12 months imprisonment of which six
months was conditionally suspended for five years.
The
conviction and sentence proceedings occurred on 29 May 2003. The
accused was informed that the case was subject to automatic review
and was advised that if he was dissatisfied with the conviction or
sentence he could make written submissions within three days to
be
submitted together with the record to the reviewing judge. According
to the J4 form on record, it is certified that the magistrate
also
informed the accused that the record would be sent to the High Court
for review within four to seven days. (The typed transcript
of
proceedings does not, however, bear out the latter information.)
The typed
transcript of the record bears an official stamp endorsement by the
clerk of the magistrate’s court dated 24 June 2003.
This suggests
that the transcript had been completed by that date. The J4 form
(which is the coversheet under which magistrates submit
automatic
reviews to the High Court) was signed on behalf of the magistrate on
15 July 2003 (six and a half weeks after the imposition
of sentence).
Another stamp of the clerk of the court on the record reflects the
date 7 August 2003. It is not apparent why that
stamp was endorsed on
the record. The record was eventually received by the registrar of
this court and placed before me on 18 August
2003 (eleven and a half
weeks after the imposition of sentence). On 21 August 2003, after
conferring with a colleague, I ordered
the immediate release of the
accused from custody.
The matter
was subject to automatic review because of the provisions of
s 302
of
the
Criminal Procedure Act 51 of 1977
. Section 303 of the Act
provides as follows:
‘
The clerk of the court in question shall within one week after
the determination of a case referred to in paragraph (a) of
section
302
(1) forward to the registrar of the provincial or local division
having jurisdiction the record of the proceedings in the case or
a
copy thereof certified by such clerk, together with such remarks as
the presiding judicial officer may wish to append thereto,
and with
any written statement or argument which the person convicted may
within three days after imposition of the sentence furnish
to the
clerk of the court, and such registrar shall, as soon as possible,
lay the same in chambers before a judge of that division
for his
consideration.
’
The object of the provision for automatic review proceedings is self
evident. It is to ensure as far as possible that legally
unrepresented
convicted persons have been fairly tried and justly
sentenced. It is intended to enable remedial steps to be taken
expeditiously
if the proceedings in the magistrate’s court have not
been in accordance with justice. In the constitutional context, the
provision
should be regarded as a measure intended to lend substance
to the basic rights now entrenched in
s 35(2)(d)
1
anc" HREF="#sdfootnote1sym">
1
and s 35(3)(o)
2
of the Constitution in particular, and to a fair trial in general.
Over the years, several judgments have been reported in which the
importance of achieving proper compliance with the provisions of
s
303 of the Code (or its statutory predecessor) has been repeatedly
stressed.
In
S v Letsin
1963 (1) SA 60
(O)
at 61, Eksteen AJ, as he then
was, said the following:
‘
In 'n onlangse verslag deur twee lede van die Transvaalse
Regbank aan die Regter-President van daardie Afdeling wat in die
Augustus
1962 uitgawe van die
South African Law Journal
gepubliseer is, sê die geleerde Regters die volgende (op bl. 267):
'One of the important
contributions made by South African law to the administration of
justice is the system of review as of course,
or, as it is more
commonly known, of automatic review. . . . When it is borne in mind
that at least 90 per cent of the accused persons
are either wholly or
partially illiterate and that the great majority of them are
undefended, the vital importance of the system
in the administration
of justice in this country becomes apparent.'
Die geleerde Regters gaan dan voort om daarop te wys dat sodra 'n
landdros 'n vonnis oplê wat onderhewig is aan hersiening, hy verplig
is, ooreenkomstig art. 97 van Wet 32 van 1944, om die beskuldigde in
kennis te stel dat hy geregtig is om binne 3 dae na die vonnis
enige
skriftelike verklarings of argumente in te dien wat dan voor die
hersienende Regter gelê kan word. Die notule van die verrigtinge
word dan binne die bestek van 'n baie kort tydperk - naamlik binne 1
week - aan 'n Regter van die Hooggeregshof voorgelê vir hersiening,
en die Regter het dan baie wye magte om òf die vonnis te bekragtig
òf toe te sien dat reg en geregtigheid geskied. Uit die aard
van die
saak val die klem deurgaans op die spoedige voorlegging van die
landdros se vonnis aan 'n Regter vir hersiening, en dit is
so omdat
dit een van die hoogste roepinge van ons Howe is om toe te sien dat
die vryheid van die individu, binne die perke van die
reg, gewaarborg
sal word. Dit is 'n ingrypende aantasting van individuele vryheid om
'n persoon in die gevangenis te laat aanhou,
en dit is die dure plig
van die Howe en van elke regterlike amptenaar om toe te sien dat dit
slegs sal gebeur met die volle gesag
van 'n behoorlike regsproses.
Waar die Wet dus voorsiening maak vir die spoedige hersiening van 'n
landdros se vonnis, is die regsproses
van sy veroordeling en vonnis
nie behoorlik voltooi voordat die hersienende Regter òf sy
sertifikaat van bekragting van die prosedure
uitgereik het nie, òf
'n ander bevel gemaak het nie.
Die
landdros is dus verplig om in die uitvoering van hierdie hoë roeping
van ons Howe toe te sien dat die regsproses waarvolgens
iemand van
sy persoonlike vryheid ontneem word so spoedig moontlik die volle
imprimatur van die regspraak verkry, en die indruk moet
nooit geskep
word dat ons Howe onverskillig staan teenoor die vryheid van die
individu nie.
’
The principles and jurisprudential philosophy expressed in the above
quotation from
S v Letsin
find resonance in the Bill of
Rights. See ss 7, 8, 12, 35 and 39 of the Constitution.
See also
S
v Mofokeng en 'n Ander
1974 (1) SA 271
(O)
;
S v Raphatle
1995
(2) SACR 452
(T)
;
S v Manyonyo
1997 (1) SACR 298
(E)
;
S
v Lewies
1998 (1) SACR 101
(C)
and
S v Hlungwane
2001 (1) SACR
136
(T)
. In the latter case, it was remarked that a failure to
comply punctiliously with the provisions of s 303 could result in
given circumstances
in a delictual liability to the accused by those
responsible. I refrain from expressing any opinion in that
connection. The question
is not necessarily free of difficulty; cf.
e.g.
Knop v Johannesburg City Council
1995 (2) SA 1
(A)
:
Carmichele v Minister of Safety and Security and Another (Centre
for Applied Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC)
and
Van Eeden v Minister of Safety and Security (Women's Legal Centre
Trust, as amicus curiae)
2003 (1) SA 389
(SCA)
. Obviously,
practical and policy considerations would play a material
determinative role in giving the answer. In my view, it is
more
pertinent for present purposes, in the context of
ss 302
-
306
of the
Criminal Procedure Act, to
consider the effect of a failure to comply
with the provisions of
s 303
of the Code on an accused’s right to a
fair trial.
The
provisions of s 35(3) of the Constitution set out a number of
component rights which are included in the overarching concept of
the
right to a fair trial. These include the right of an accused person
to have his or her trial begin and conclude without unreasonable
delay and the right of appeal to, or review by, a higher court. The
provisions of s 303 provide in part the statutory machinery that
is
in place to give effect to the constitutional rights enshrined in s
35(3) of the Constitution. The extent to which the provisions
were
ignored, with substantial prejudicial effect to the accused in this
case, is such that it might in itself have been a factor
sufficiently
material to exclude any confirmation by this court of the proceedings
in the magistrate’s court. The provisions certainly
bear closely
enough on the concept of what is included in a fair trial to beg the
question as to what the result should be of so
material infringement
of the right
3
.
In view of the conclusion to which I have come on the merits of the
conviction in this matter it is not necessary for me to answer
the
question.
I am
nevertheless concerned that so flagrant an infringement of the
accused’s constitutional rights should not in these circumstances
go lightly without practical notice. The evidence suggests that the
accused is most probably an unsophisticated person of little
education and meagre means. In the circumstances I consider that it
would be appropriate to direct that a copy of this judgment be
forwarded to the Director of the Legal Resources Centre, Western
Cape, for consideration by the Centre as to whether assistance should
not be given to the accused to achieve appropriate redress. In doing
so, I reiterate that I am not thereby expressing any opinion
whatsoever as to the factual or legal premises for such redress, or
its actual availability. It is however an issue which bears
investigation. This matter seems to afford a practical basis for the
investigation to occur. The referral is justified, I think,
because
in the nature of things persons in the position of the accused in
this case are generally unlikely to have the resources
to pursue the
issue. If the resources were available, it is unlikely that persons
like the accused would suffer in silence the unacceptably
lengthy
delays in bringing their cases to the attention of a reviewing judge.
The series of judgments mentioned earlier indicates
that repeated
enjoinders for proper compliance with the provisions of s 303 of the
Code are not in themselves sufficient remedy to
those nonetheless
affected by continuing non-compliance with the provisions.
I am conscious that it is unusual to direct a referral of the nature
proposed. Traditionally referrals of this nature have in general
been
limited to matters such as referrals to the prosecution or the
revenue authorities in respect of matters arising in the course
of
proceedings which are considered by the presiding judge to merit
investigation in the public interest, or of referrals to the
governing bodies of the advocates’ or attorneys’ professions in
respect of
prima facie
evidence of delinquency on the part of
practitioners identified during proceedings. I see no reason,
however, why judicial proactivism
should be limited, particularly
when it comes to the active fostering of respect for the rule of law
and individual’s constitutional
rights. As Lord Woolf, the Lord
Chief Justice of England and Wales, observed recently during an
address to the 13
th
Commonwealth Law Conference : ‘
Just
as the common law has been evolving with increasing rapidity, so has
the role of the common law judge. The judge's responsibility
for
delivering justice is no longer largely confined to presiding over a
trial and acting as arbiter between the conflicting positions
of the
claimant and the defendant or the prosecution and the defence. The
role of the judiciary, individually and collectively, is
to be
proactive in the delivery of justice. To take on new
responsibilities, so as to contribute to the quality of justice. At
the
forefront of these new responsibilities is achieving access to
justice for those within the judge's jurisdiction.’
4
Although expressed in the context of the development of the
English common law, I can think of no reason why Lord Woolf’s
description
of the evolution of a more proactive judicial role should
not apply in the modern South African context.
Turning to the merits of the case.
The only
evidence adduced by the State in support of the charge against the
accused was that of the complainant. He was not a satisfactory
witness.
It appears
from the record that his demeanour in the witness box did not impress
the trial court. He was admonished by the magistrate
at one stage for
laughing inappropriately and apparently finding the proceedings to be
something of a joke.
Under
cross-examination by the accused (who was unrepresented), he admitted
to having returned to the scene of the alleged assault
with a panga.
The complainant’s evidence in chief had suggested that he had been
assaulted by the accused at a shebeen and that
after he had been
chopped across the palm of his hand by the accused, who was allegedly
wielding an axe, he had left to go to his
sister’s house, whence he
had gone to hospital to have his wound attended to. The admission
made by the complainant under cross
examination that his evidence in
chief had not accurately reflected the full story was followed up in
questioning by the magistrate.
In answer to the court’s questions
it transpired that the complainant had returned with a panga and had
confronted the accused
and tripped him up. He said that the accused
was with another man at that stage. The other man had a dog.
According to the complainant
the accused and his companion then
chased him with the dog. He was unable to explain why he had not
mentioned these events earlier.
(It was apparent from remarks
subsequently made by the prosecutor to the court that this aspect of
the complainant’s evidence had
also not been foreshadowed in the
witness’s statement to the police.) His explanation to the
magistrate was that he had forgotten
about these incidents. At the
time (some four or so months prior to her giving judgment), the
magistrate was (justifiably in my view)
not impressed.
The
following exchange occurred between the magistrate and the
complainant:
‘
Nou
as dit so is, hoekom het u dan nou nie dit vir die aanklaer gesê
nie, want u sien die aanklaer was
[
sic
,
?vra]
wat het toe van hom geword en u antwoord was, u het hom nie
weer gesien nie. U is weg en u het hom nie weer gesien nie, nou kom
vertel u vir die Hof hoe u teruggekom het met ‘n panga en hom
omgetrap het, wat gaan hier aan dat die Hof nou nie alles hoor wat
daar gebeur het nie? --- Ja maar ek is, ek vergeet mos party goed
mevrou mos man.
Nou wat vergeet u alles nog meneer? Want u het nou vergeet dat u
teruggekom het met ‘n panga en die man omgetrap het, dis darem
groot goed om te vergeet. --- En na dit toe gaan die polisie bel
mevrou.
Nee ek
wil nie weet van dit nie, ek wil weet hoe gebeur dit dat ‘n mens
sulke groot goed vergeet? Verduidelik vir my, want ek verstaan
dit
nie. Verduidelik maar. --- Toe daardie man my gekap het in die hok
mevrou en toe gaan ek uit, toe gaan ek … (tussenbeide)
Moenie
herhaal wat u gesê het nie meneer, ek wil weet wat veroorsaak dat u
sulke belangrike goed wat u gedoen het, vergeet. Hoe
het dit gebeur
dat u dit vergeet? Hoekom vergeet u dit? --- Ja ek weet nie mevrou
man.
U weet
nie? Ag nee los nou maar die boeie, dit raas en dan antwoord u my
vraag asseblief, ek wil net u getuienis probeer verstaan.
Was u so
dronk dat u nie alles kan onthou nie? Is daar fout met u gewees
nadat u geslaan is, hoekom vergeet u sulke belangrike
goed? --- Nee
ek weet nie mevrou.
U weet
nie? --- Nee.
Nou wat
is daar nog wat u vergeet? --- Niks meer nie. Want dit klink nou vir
my, kom ek sal nou vir jou so sê, jy kan alles onthou
wat hy gedoen
het nè? Antwoord? --- Nee.
Is dit
‘n ja of ‘n nee, kan jy alles onthou wat hy gedoen het? --- Ek
kan nie nog so lekker alles onthou nie.
Maar u
vergeet wat u gedoen het. H’m, is dit nou wat hier besig is om te
gebeur. Vergeet u wat u gedoen het? --- Ja.
Nou
hoekom onthou u wat hy doen, maar u vergeet wat u gedoen het? Dit
werk mos nie so nie, jy onthou mos altwee. Meneer antwoord
laat ek
hoor. --- Nee mevrou.
Ek hoor
nie. --- Nee.
Nee
wat? Nou kom ons begin weer, het jy hierdie man op enige stadium
geruk? --- Geruk mevrou?
Ja. Het
u geruk aan hom? --- Nee mevrou.
Ja. Het
u geruk aan hom? --- Nee mevrou.
Nee?
--- Ek het nie geruk … (tussenbeide)
U het
darem baie lank gedien daaraan nè? --- Nee mevrou.
Hoekom
vat u so lank om daaraan te dink, het u hom geruk of het u hom nie
geruk nie? --- Nee ek het hom nie geruk nie mevrou
U het
hom nie geruk nie, hoe weet jy dit? --- Nee soos ek mos weer dink
mevrou.’
The magistrate’s questioning of the complainant with regard to his
having pulled at the accused arose out of the version of events
put
to the complainant by the accused and later confirmed in the
accused’s own evidence.
According
to the accused, the complainant had pulled at him at the shebeen and
then confronted the accused with having knocked and
spilled the
complainant’s beer. The accused said that the complainant had
refused to accept an apology and had grabbed onto the
accused by his
chest. As the accused pushed the complainant away, he struck at the
accused and cut his chin. The accused surmised
that the cut was
caused by the glass or bottle in the complainant’s hand. The
accused then said he punched the complainant and
knocked him to the
ground. The complainant got up and ran from the shebeen. The accused
noticed a small axe lying on the floor and
presuming it to have
fallen from the complainant’s person picked it up and retained it
in his possession.
The accused continued that when he subsequently left the shebeen he
was attacked by the complainant in the manner described in his
cross
examination of the complainant. He said that at that stage he and the
complainant wrestled together on the ground for some
time as he
sought to subdue the complainant. He eventually released the
complainant when other persons had gathered round. The complainant
then ran away. The accused denied having assaulted the complainant
with the axe. He suggested that the cut to the complainant’s
hand
might have occurred when the complainant fell after being punched by
the accused in the shebeen. The complainant had a glass
or bottle in
his hand at that stage. He also mentioned that the complainant might
have been injured by the axe during the struggle
that occurred later
when the complainant returned with the panga. He really was not
certain (‘
ek weet regtig nie
’).
The prosecutor did not make much impression on the accused’s
evidence in cross examination. The prosecutor’s cross-examination
takes up approximately 11 pages of the typed transcript.
After the prosecutor had completed his cross examination, the
magistrate subjected the accused to detailed and trenchant
questioning,
which takes up 10 pages of the transcript. I do not
think it would be unfair to characterise the manner of questioning by
the magistrate
as in the nature of cross examination. The accused was
subjected by the magistrate to prolonged interrogation. In my view,
the questioning
was at times conducted in a hectoring and distinctly
adversarial manner. The record of the magistrate’s questioning of
the accused
is peppered with ‘
tussenbeide
’ annotations,
signifying the magistrate’s tendency to cut the accused short,
interrupting his attempts to answer her questions.
It was put to the
accused by the magistrate that he was repeatedly contradicting
himself. Some of these propositions were made on
a questionable
foundation. At one stage the magistrate put to the accused that he
said something in evidence, which he had not. When
he tried to point
out to the magistrate that he had not testified as she maintained, he
was rebuffed by a remark that the record
would speak for itself. The
magistrate clearly was signifying that she did not accept his denial.
The record bears out the correctness
of the accused’s denial of the
magistrate’s proposition, but there is nothing to suggest that the
recording of the evidence was
revisited before the magistrate’s
extemporary judgment was given immediately after the conclusion of
the accused’s evidence.
The care
that a presiding officer must take not to descend unduly into the
arena, particularly in a criminal case, is a duty that
has been
reiterated again and again. For a trial to be fair, justice must not
only be done, but it must also be apparent that it
is being done. If
the presiding judicial officer in a criminal trial conducts him or
herself during the trial in a manner which objectively
is
inconsistent with impartiality, then justice is not seen to be being
done. Cf.
S v Roberts
1999 (4) SA 915
(SCA)
at paragraphs
[22] and [25]. The extent to which a judge or magistrate may properly
intervene by questioning witnesses, including
an accused person, is
not capable of precise definition. Much will depend on the particular
circumstances of the case. The issue
has, however, been
authoritatively discussed in a number of reported judgments; see e.g.
S v Sigwahla
1967 (4) SA 566
(A);
and
S v Rall
1982 (1) SA
828
(A).
A useful
and detailed recapitulation of the relevant principles expressed in
those judgments with an emphasis on their current constitutional
implications has recently been made by Southwood J (Kirk-Cohen J
concurring) in
S v Mathabathe
2003 (2) SACR 28
(T)
.
The three
broadly stated limitations to judicial questioning formulated by
Trollip JA in
S v Rall
,
supra, at 831H- 833B, bear
setting out again in full:
‘
While it is difficult and undesirable to attempt to define
precisely the limits within which such judicial questions should be
confined,
it is possible, I think, to indicate some broad, well-known
limitations, relevant here, that should generally be observed (see S
v Sigwahla
1967 (4) SA 566
(A) at 563F - H).
(1)
According to the above quoted dictum of Curlewis JA
[in R v
Hepworth
1928 AD 265
at 277]
the Judge must ensure that ''justice
is done''. It is equally important, I think, that he should ensure
that justice is seen to
be done. After all, that is a fundamental
principle of our law and public policy. He should therefore so
conduct the trial that his
open-mindedness, his impartiality and his
fairness are manifest to all those who are concerned in the trial and
its outcome, especially
the accused (see, for example, S v Wood
1964
(3) SA 103
(O) at 105G; Rondalia Versekeringskorporasie van SA Bpk v
Lira
1971 (2) SA 586
(A) at 589G; Solomon and Another NNO v De Waal
1972 (1) SA 575
(A) at 580H). The Judge should consequently refrain
from questioning any witnesses or the accused in a way that, because
of its frequency,
length, timing, form, tone, contents or otherwise,
conveys or is likely to convey the opposite impression (cf
Greenfiield Manufacturers
(Themba) (Pty) Ltd v Royton Electrical
Engineering (Pty) Ltd
1976 (2) SA 565
(A) at 570E - F; Jones v
National Coal Board
[1957] EWCA Civ 3
;
[1957] 2 All ER 155
(CA) at 159F).
(2) A Judge should also refrain from indulging in questioning
witnesses or the accused in such a way or to such an extent that it
may preclude him from detachedly or objectively appreciating or
adjudicating upon the issues being fought out before him by the
litigants.
As Lord Greene MR observed in Yuill v Yuill
[1945] 1 All
ER 183
(CA) at 189B, if he does indulge in such questioning -
''he, so to speak, descends into the arena and is liable to have
his vision clouded by the dust of the conflict. Unconsciously he
deprives himself of the advantage of calm and dispassionate
observation.''
See, too, the Jones case supra at 159C - E. Or, as expressed by
Wessels JA in Hamman v Moolman
1968 (4) SA 340
(A) at 344E, the Judge
may thereby deny himself
''the full advantage usually enjoyed by the trial Judge who, as
the person holding the scale between the contending parties, is able
to determine objectively and dispassionately, from his position of
relative detachment, the way the balance tilts.''
The quality of his views on the issues in the case, including
those relating to the demeanour or credibility of the witnesses or
the
accused or the relevant probabilities, may in consequence be
seriously impaired (see, eg, R v Roopsingh
1956 (4) SA 509
(A) at
514 - 15). And, if he is sitting with assessors, that may well
adversely influence their deliberations and opinions and opinions
on
the issues.
(3) A
Judge should also refrain from questioning a witness or the accused
in a way that may intimidate or disconcert him or unduly
influence
the quality or nature of his replies and thus affect his demeanour or
impair his credibility. As Lord Greene MR further
observed in
Yuill's case supra at 189B - C:
''It is further to be remarked, as everyone who has had
experience of these matters knows, that the demeanour of a witness is
apt
to be very different when he is being questioned by the Judge to
what it is when he is questioned by counsel, particularly when the
Judge's examination is, as it was in the present case, prolonged and
covers practically the whole of the crucial matters which are
in
issue.''
It therefore follows that the right duty of a Judge to examine the
witnesses or accused in a criminal case is not nearly as extensive
as
the learned Judge seems to predicate it in the above quoted extract
from his judgment in granting leave to appeal.
Now any serious transgression of the limitations just mentioned
will generally constitute an irregularity in the proceedings. Whether
or not this Court will then intervene to grant appropriate relief at
the instance of the accused depends on whether or not the
irregularity
has resulted in a failure of justice (see the proviso to
s 322(1) of the Criminal Procedure Act 51 of 1977). That in turn
depends
upon whether or not the irregularity prejudiced the accused,
or possibly whether or not this Court's intervention is required in
the interests of public policy (cf S v Mushimba and Others
1977 (2)
SA 829
(A) at 844H). Of course, if the offending questioning of
witnesses or the accused by the Judge sustains the inference that in
fact
he was not open-minded, impartial, or fair during the trial,
this Court will intervene and grant appropriate relief (cf, for
example,
S v Meyer
1972 (3) SA 480
(A)).
'
In my view, the magistrate’s questioning of the accused undoubtedly
transgressed the limitations broadly defined in the aforegoing
passage from the judgment in
Rall’s
case. The content of the
magistrate’s judgment, handed down immediately after her
questioning of the accused, suggests to me that
the degree to which
she engaged in an adversarial fashion with the accused affected her
overall approach in assessing all the evidence.
The evidence against the accused was that of a single witness. The
magistrate was astute to the requirement in the circumstances
that
the court should have especially careful and cautious regard to the
quality of the complainant’s evidence to determine whether
it
afforded a proper basis upon which the accused could be convicted.
The question is, however, whether proper heed was actually
had to the
cautionary rule.
The
complainant’s evidence was described in the magistrate’s judgment
in the following terms:
‘
Die enkelgetuienis van mnr Franklin Visser is op record. Daar
is geen rede waarom die Hof nie sy weergawe moet glo nie. Hy is in
alle
opsigte het hy (sic) ‘n redelike goeie indruk geskep, veral sy
eie aandeel, sy eie kry van ‘n panga na die tyd. Hy ht dit alles
erken en daaruit kon die Hof die indruk gekry het dat hy probeer nie
om enigiets vir die Hof weg te steek nie. Die besering het hy
aan die
hof getoon. Die besering het hy die aand opgedoen en hierdie besering
staan dan ook die wyse waarop hy die besering sou opgedoen
het.
’
There is nothing in the magistrate’s reasons which reflects the
adverse comments that she made about the complainant’s demeanour
while he was giving his evidence. There is also no indication in the
judgment that the magistrate considered the implications of
the
complainant’s failure to previously mention that
he
had
attacked the accused with a panga and the implausibility of his
explanation that he had forgotten this. There is no indication
in the
judgment that the magistrate took account of the complainant having
taken a long time to hesitatingly answer the proposition
put to him
by the magistrate arising out of the accused’s questions that the
complainant had pulled at the accused in the shebeen.
I am left with
the distinct impression that in the residual heat of the magistrate’s
confrontation with the accused, the flaws
and weaknesses in the
complainant’s evidence and demeanour did not enjoy the
consideration they deserved.
The magistrate appears to have found objective corroboration for the
complainant’s evidence in the injury that he sustained. There
was
no medical evidence in respect of the injury. The complainant said
that the wound to his hand required eight stitches. The scar
shown to
the court was about 5cm in length. The complainant was not detained
in hospital and suffered no disability in the use of
the affected
hand. I am unable to understand on what basis the magistrate was able
to find that the injury corroborated the complainant’s
version. It
seems to me that the occurrence of the injury described could just as
well have occurred on the bases postulated by the
accused.
In
rejecting the evidence of the accused, the magistrate pointed to the
conflict between the accused’s plea explanation and his
evidence.
There was indeed a basis for this criticism of the accused’s case,
but in my view, in the circumstances, it was given
inappropriate
weight. The record in respect of the plea explanation shows that it
was very terse. The record reads as follows in
the relevant respect:
‘
Artikel 115 wet 51/1977 en swygreg verduidelik.
Wil sê:
Ek rand hom nie aan nie. Hy rand my aan. Ek verdedig myself. Ek
het hom met ‘n byl gekap oor hy my eerste met ‘n glas slaan
’
In evaluating whether the conflict relied upon by the magistrate was
real or apparent, I consider that the following factors should
have
been taken into account: that the accused was an undefended and
apparently unsophisticated person; that the plea explanation
had not
been elucidated by questions from the court in terms of
s 115(2)
of the
Criminal Procedure Act, at
the time it was given; and that the
accused at no stage denied that that complainant had been injured and
accepted that the injury
may well have been caused by the axe during
the struggle when the accused attacked him with a panga. The plea
explanation was not
a model of clarity, but nothing in it is in
essential contradiction of the accused’s evidence. Had the
magistrate considered the
apparent contradiction to be material, she
should at least have raised it with the accused by appropriate
questioning during, or
at the conclusion of his evidence.
Notwithstanding the lengthy examination referred to above, however,
the magistrate did not explore
the issue at all.
The other basis for the conviction of the accused given in the trial
court’s judgment was that the accused’s version of events
was
improbable to the extent of being far-fetched. I do not agree. On the
contrary, it is beyond dispute that the accused’s version
of events
gave a clearer picture of what actually transpired than did the
complainant’s evidence in chief. The accused’s evidence
posited
two possible situations in which the complainant could have sustained
his injury. Neither of them was inherently implausible
and, in my
view, neither of them could be said to be not reasonably possibly
true. The magistrate’s criticism of the accused’s
failure to
satisfactorily explain the detailed mechanics of the tussle between
the accused and the complainant when the latter returned
armed with a
panga to confront the accused was unfair in my opinion. A tussle by
its nature is a constantly moving and generally
uncoordinated event.
The inability of someone involved to subsequently distil the action
in a description akin to a choreographic
annotation is
understandable, especially when it is accepted, as it was, that both
the participants were to some degree affected
by intoxicating liquor.
I consider
that the magistrate could not properly have been satisfied that the
accused’s guilt was not proved beyond reasonable
doubt.
In the
circumstances the following orders are made:
The conviction and sentence of the accused are set aside and the
accused is acquitted and discharged.
The registrar is requested to forward a copy of this judgment to the
Director of the Legal Resources Centre (Western Cape) for
consideration in accordance with the remarks made above concerning
the infringement of the accused’s constitutional rights consequent
upon the delay in submitting the case on automatic review.
A.G.
BINNS-WARD
THRING
J:
I agree.
W.G. THRING
November 2003
1
Which
provides the right of every detained person, including a sentenced
prisoner, to challenge the lawfulness of the detention
in person
before a court and, if the detention is unlawful, to be released.
2
Which
provides the right of appeal to, or review by, a higher court.
3
In
Constitutional Law of South Africa (ed. Chaskalson et al, loose-leaf
revision service 5, 1999), Criminal Procedure, s.v ‘The
right to a
fair trial’, at 27-63, the following is said in this respect: ‘It
is submitted that the fact of a rights violation,
if not justified
under the limitations clause, should always entitle the victim to a
remedy. This fact is independent of the question
of what to do as
far as the trial is concerned, although that question will often be
the answer to the remedy problem. A damages
claim is always on the
cards. It might not be too far fetched to adjust the punishment a
guilty person receives in accordance with
the degree to which his or
her constitutional rights were violated. In this way violations
might be treated as serious wrongs inflicted
upon the person
concerned without entailing the sometimes dubious consequence of
completely absolving such a person concerned of
the liability to
suffer punishment. Of course, disciplinary proceedings for rights
violations are not barred by any of this, and
may well be a valuable
educating mechanism. Fn. See S v Philemon
1997 (2) SACR 651
(W) at
667.’
4
The
full text of the address is available on the Lord Chancellor’s
Department’s website at
http://www.lcd.gov.uk/judicial/speeches/lcj160403.htm
.