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[1989] ZASCA 162
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S v Harper (359/89) [1989] ZASCA 162 (29 November 1989)
CASE NO. 356/89
GEORGE JOSEPH HARPER
APPELLANT
and
THE STATE
RESPONDENT
Judgment by:
NESTADT, JA
CASE NO. 356/89 /CCC
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
GEORGE JOSEPH
HARPER
APPELLANT
and
THE
STATE
RESPONDENT
CORAM
: CORBETT CJ, VAN HEERDEN et NESTADT
JJA
DATE HEARD
: 20 NOVEMBER 1989
DATE DELIVERED
: 29 NOVEMBER
1989
JUDGMENT NESTADT, JA:
Appellant was convicted of murder. It was
found that on the night of 16 January 1987 he fatally stabbed Maxwell Ogle. The
attack on
deceased took place whilst he and appellant were passengers on a
public bus
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being driven in the district of Inanda from Newlands
East
to Durban. No extenuating circumstances having been
found, appellant
was sentenced to death.
The issue in the appeal against the
conviction is whether the trial court (VAN HEERDEN AJP
sitting with
assessors in the Durban and Coast Local
Division) was correct in rejecting
appellant's denial that
it was he who killed deceased. The State case that he
did
rested on the evidence of Conway Johns. He was also a
passenger in the
bus. His version of what happened was in
summary the following. At a
particular bus stop a group
of about fifteen persons boarded the bus.
Appellant, whom
he knew, was one of them. They were members of the
SGF
gang. Appellant was their leader. They proceeded past
where deceased
was sitting to the back of the bus.
Appellant, however, returned and spoke to
deceased. He
accused deceased of having the previous month stabbed one
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of appellant's friends. Because of this, so
appellant
threatened, he was going to kill deceased. He was as
good as his word. He
took out a knif e and stabbed
deceased once in the chest. As deceased moved
into the
aisle of the bus appellant stabbed him again in the
back.
Deceased managed to reach the front of the bus where he
collapsed
into Johns' arms. The bus stopped. The
witness pushed deceased out of the bus
and himself jumped
off after him. Deceased lay on the ground alongside
the
bus. That is where he died (as a result of the chest
wound). Appellant
also alighted from the bus. He told
Johns to get back in. Johns complied.
Leaving the
deceased where he lay, the bus continued on its route.
The
driver asked appellant why "he did that". Appellant
replied "I killed this man because ... he stabbed (my)
friend". The conversation was in Zulu. The bus reached
the stop that was Johns' destination. He hurriedly got
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off and ran to the nearby house of deceased's brother. He reported to him
that deceased had been stabbed. The brother in turn telephonically
informed the
police.
Appellant in his evidence did not deny that he and Johns knew each
other. He also admitted that he boarded the bus at the same time
as the group to
which ref erence has been made. It was true that they were members of a gang. He
was, however, not their leader or
even one of them. He walked past the deceased
and sat down. He was unarmed. Trouble arose between deceased and the gang. It
began
when deceased belittled them by saying they were "cardboard gangsters".
One of them, apparently taking offence at this, reacted by
challenging deceased
to "prove" the allegation. Deceased responded by threatening to hit him. This
person said "try it". By this
time he had a knife in his hand. Deceased, having
noticed this, invited him to put it down whereupon, so deceased added, he
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would "show (him) something". The gang member refused to do
so. Deceased himself then produced a knife. This person summoned his
confederates.
They were at the back of the bus. As they surged forward deceased
rushed at them. Though armed with knives and belts they retreated.
Appellant
then noticed that deceased had been injured. He had blood on his shirt. He did
not, however, actually see deceased being
stabbed. Deceased moved towards the
front of the bus. As he did so he turned round and said to the gang that "he' s
not f inished
with them". He reached the front of the bus and together with
Johns, whilst the bus was still moving, fell.out of it through the
open door.
The bus stopped. Appellant got out. He never saw the deceased. But he noticed
the State witness lying on the ground. He
helped him up. The two of them got
back into the bus which proceeded on its journey. The bus driver asked him what
had happened.
Appellant replied that "they
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are killing each other".
Appellant called a witness, Colin Davids. He
testified that he boarded the bus at the same time as Johns. He took up a seat
next to
the deceased. Later "a group of guys got into the bus". Deceased said
something to them "about ... gangsters". One of them took offence
and approached
deceased. He had an object which looked like a knife. When he saw this, the
witness became afraid. He got up and ran
to the front of the bus. The door
opened and he was pushed out. He never saw what happened behind him. He
accordingly never saw deceased
being stabbed.
It will be apparent that the
trial court was faced with two conflicting versions as to how deceased met his
death. On that of the
State it was appellant who, bearing a grudge against
deceased, killed him. According to appellant, however, deceased was
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stabbed by an unidentified member of the gang consequent upon deceased's
provocative behaviour. Before us, counsel for appellant,
stressing that the
State case rested on the evidence of a single witness (the bus driver died
before the trial), strongly attacked
the trial court's credibility finding cm a
number of grounds. In summary the argument was the following:
(i) Johns' veracity should have been held to have been suspect. The witness
would have been keen to falsely implicate appellant because
appellant was on the
evidence (and contrary to appellant's own version) a notorious gangster; he
might have been influenced by members
of the deceased's family to untruthfully
incriminate appellant; it was reasonably possible that he was mistaken as to the
exact role
appellant played on the bus; when he reported the matter to
deceased's
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brother, he did not name appellant as the assailant; instead
of himself going to the police they had to seek him out (five days after
the
murder); he bore appellant a grudge because appellant had previously assaulted
him and his brother-in-law. (ii) Johns was a highly
unsatisfactory witness. This
was because of numerous contradictions between his evidence and a statement (in
the form of an affidavit)
he made to the police on 21st January 1987 (ie five
days after the crime) . They related to the following: whether he saw only the
butt of appellant's knife or whether he was able to identify its make (as a
three Star Okapi); did appellant take out his knife from
his right hand side or
from his back pocket; whether appellant stabbed deceased in the chest
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or in the neck; when exactly, consequent upon being accosted
by appellant, deceased stood up; whether appellant stabbed deceased twice
or
thrice; where deceased was when a co-accused of appellant (he was convicted of
assault) stabbed him; whether it was only appellant
and his co-accused who
stabbed deceased or whether a third person called Gerald Lamlettie also did so;
was it deceased's brother
who actualiy reported the matter to the police or did
appellant himself do this. (iii) There were certain improbabilities inherent
in
the evidence of Johns. He testified that besides the assault on deceased by
appellant and his co-accused, deceased had been kicked
and provoked by other
members of the gang. Yet the post-mortem report does not reflect any
injuries
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to deceased besides the stab wounds. The co-accused's attack on deceased
ought to have caused a more serious injury than the superficial
one found. It
was also improbable that appellant would admit to the bus driver that he had
killed deceased. (iv) There was no warrant
for rejecting appellant's version. It
was supported by the evidence of Colin Davids. He stated that he was friendly
with deceased
and that he regarded appellant as a gangster. It was therefore
unlikely that he would testify falsely in favour of appellant.
I do not
propose to deal with the argument in detail. For the most part, so it would
seem, it was one which was considered by VAN
HEERDEN AJP. He nevertheless came
to the conclusion that whereas Johns was "a good witness" appellant "was not a
satisfactory witness
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and was indeed ... an untruthful witness". I am not persuaded that these
findings were unjustified. I commence with the former. The
learned judge was
mindful of Johns being a single witness and of the approach to such a witness's
evidence. There is no room for
the reasonable possibility that Johns' account of
what appellant did was a mistaken one. The position in which he was sitting gave
him a good vantage point to observe the whole incident. There was sufficient
lighting in the bus to enable him to do this. He knew
appellant well. Nor
despite him having been a friend of deceased is there good reason for impugning
the witness's honesty. He did
not himself approach the police because he was
afraid of appellant. His failure to do so in itself shows that he was not keen
to
involve appellant in the murder. It is somewhat strange that he did not tell
deceased's brother who had stabbed deceased. However,
Johns adequately explained
this on the
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basis that "as soon as I told (him) he phoned the police and he ran off down
to where the party was lying. I had no time to tell him
anything". There are
many examples of him being a fair witness. Thus (to mention some) he readily
admitted that he was friendly with
deceased, that he did not tell deceased's
brother that it was appellant who had attacked deceased, that he was told that
the place
where deceased had been stabbed was in the chest and that
he did
not understand what appellant said to the bus
driver. (This he found out afterwards; he remembered the
language used and asked someone what it meant.) Generally
I do not get the
impression that he exaggerates the case
against appellant. His description of
events was a
consistent and coherent one.
Clearly there are discrepancies between
the witness's evidence and his police statement. However
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the trial court's attention was drawn to them. Its conclusion
was that they were not "of such a material nature (as) to discredit
the
witness". I think that what was meant was that they did not, to any significant
extent, detract from his credibility. In my opinion
no fault can be found with
this conclusion. Contradictions
per se
do not lead to the rejection of a
witness's evidence. As NICHOLAS J observed in
S vs Oosthuizen
1982(3) S A
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's evidence. VAN
HEERDEN AJP
obviously did this. Certain of the so-called contradictions were
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correctly described by the learned judge (in an aside to
counsel) as "piffling". In some cases it is apparent that the witness's memory
for the finer details of the incident were less clear when he testified than at
the time he made his statement (some eighteen months
before). This is
understandable. As regards where the deceased was stabbed he conceded, as I have
indicated, that he had subsequently
been told (by family of the deceased) that
it was in the chest and not in the neck as he had alleged in his statement. It
would seem
that the wound was in, the upper chest and therefore not so far
removed from the area of the neck. His assertion (in his statement)
that "I
contacted the police" is I think explainable on the basis that it was he who was
instrumental in the matter being reported
to the police. For the rest his
explanation was that although his statement had been correctly recorded (he
conceded that
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he had read it over before signing it), it did not truly
reflect what he had said. I can see no reason for not accepting this. As
GREENBERG JA in
R vs Steyn
1954(1) S A 324 (A) at 335 F - H pointed out,
statements made to the police in the course of the investigation of a crime and
preparation
for a prosecution do not always accurately represent what the
witness has said. Reliance was also placed on Johns having contradicted
himself
in the witness box. He did so, but only in minor respects.
An analysis of
appellant's evidence shows that in a number of respects he admits that Johns was
telling the truth. I have in mind
the following: that appellant was (in the
past) the leader of the SGF gang; that he boarded the bus at the same time as
the group;
that he walked past where the deceased was sitting; that there was a
threat to kill deceased because of him having the previous month
assaulted
someone (though according to
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appellant this threat was uttered by members of the gang);
that outside the bus after deceased had been stabbed he spoke to Johns
and told
him to get back into the bus; and that there was a conversation between him and
the bus driver (in Zulu). Some of these
(and others) are referred to in the
judgment a
quo
. It seems to me that on the probabilities they were
correctly regarded as providing some support for the finding that Johns was a
reliable witness.
The probabilities are, of course, often an important
pointer to credibility. It is
prima facie
a cause for surprise that if,
as Johns alleged, deceased was kicked and punched, no resultant injuries were
found on him. The point
was, however, unfortunately not put to the doctor when
he gave evidence. It therefore lacks a firm factual foundation. It may be
that
there was bruising but that because of the colour of deceased's skin or the
protective effect of his clothing, it was difficult
to
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17. detect. Simllarly, the submission that appellant's
co-acccused's attack on deceased ought to have caused a far more serious injury
must be rejected. It is true that Johns described the weapon used as a home-made
sword and that according to the doctor the resultant
injury was superficial. But
that might have been due to the manner in which the blow was struck. I cannot
agree that it is improbable
that appellant would admit to the bus driver that he
had killed deceased (assuming that he did so admit). Criminals frequently though
unwisely out of bravado boast about what they have done. Reference has been made
to Gerald Lamlettie. Johns described how he unsuccessfully
attempted to stab
deceased. I can see nothing improbable (as was suggested) in the witness's
account of what Lamlettie did. In the
result I do not think there are any
improbabilities of any consequence in the State version.
The same cannot be said of appellant's
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evidence. A basic improbability in his version is that
deceased, being sober, would single-handedly have challenged members of a rival
gang whom he knew to be armed and to bear a grudge against him. It is also
unlikely that Johns would jeopardise his own safety (for
which he feared) by
giving false evidence against appellant. More especially is this so when he
knew, as he must have, that there
were a number of potential witnesses who could
contradict him. VAN HEERDEN AJP quite rightly had regard to these factors. He
also
refers to numerous other unsatisfactory features in appellant's evidence. I
shall not list them. Suffice it to say that here too
there is no reason to
differ from the trial court. Appellant contradicted himself; at times he was
evasive; his description of the
incident when he allegedly assaulted Johns and
his brother-in-law is vague; his account of what happened in the bus was an
incoherent
one; in particular it
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is unclear when deceased was stabbed or by whom; he could not
explain why he did not go to the aid of deceased when the bus
stopped.
Counsel for appellant did not argue that the evidence of the
co-accused could be relied on as supporting appellant's version. He did,
however, submit that Davids corroborated appellant. To a limited extent he does.
But the court a
quo
was not at all impressed by Davids. I am not
surprised. He contradicted appellant. His account is so lacking in detail, so
imprecise
on so many matters as to strongly suggest (to use the words of VAN
HEERDEN AJP) that he was probably not on the scene at all.
It is true that Johns' evidence was, for the reasons stated, not without
blemish and that on the issue of whether it was appellant
who stabbed deceased,
such evidence stands alone. The trial court, however, did
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not misdirect itself and its credibility finding in favour of
the State was a strong one. It was made after a careful evaluation of
the
evidence and the court's impressions of the witnesses. In these circumstances
the appeal can only succeed if we are convinced
that the conviction was wrong. I
am not so convinced. On the contrary, weighing the version of Johhs against that
of appellant, I
think appellant's evidence was correctly rejected. In the result
the appeal against the conviction must fail.
This brings me to the appeal
against the finding that there were no extenuating circumstances. Four factors
were relied on in this
regard. They were (i) the fact that deceased had the
previous month severely assaulted a friend of appellant; (ii) the offence was
not pre-planned; appellant only decided to stab deceased on the spur of the
moment when he saw deceased in the bus; (iii)
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appellant was under the influence of alcohol; (iv)
in
stabbing deceased he acted merely with
dolus eventualis
.
The
same argument was rejected by the trial court. As" to
(i), it was pointed out that the process of the law had
already been put
in motion. Deceased was being charged
with attempted murder. Appellant was to
have been a wit-
ness in the case. In these circumstances, so it was
held:
"This is not a matter where the deceased had already been acquitted and the
accused had, rightly or wrongly, believed that he had
been wrongly acquitted and
had thereby escaped his just punishment. The deceased had not killed a relative
of or someone near and
dear to the accused. It was a fight between rival gangs.
There was no provocation in the bus to the accused to resort to this killing.
He, as a witness in a case that had already started to take its course, was by
his deed in this case interfering with the just process
of the
law".
It was accepted (as regards (ii)) that the
murder was not
pre-planned. However, it involved a deliberate attack
on
deceased. Appellant had first walked past deceased and
then returned to
him; when he drew out his knife, he said
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he was going to kill deceased (because of the incident
in-volving his friend); and he stabbed deceased twice, the first time in a
vulnerable part of the body. There was no evidence that appellant was affected
by the two beers he had drank shortly before the incident
((iii) above). And (as
regards (iv)) appellant had acted with
dolus directus
. The court's
conclusion was that in these circumstances, especially seeing appellant was a
mature man of 26, his moral blameworthiness
had not been reduced. In my opinion
the reasoning is unassailable. Accordingly the appeal against sentence cannot
succeed.
The appeal is dismissed.
NESTADT JA
CORBETT, CJ )
) CONCUR VAN HEERDEN, JA )