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[2020] ZASCA 155
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Doorewaard and Another v S (908/2019) [2020] ZASCA 155; [2021] 1 All SA 311 (SCA); 2021 (1) SACR 235 (SCA) (27 November 2020)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 908/2019
In
the matter between:
PIETER
DOOREWAARD
FIRST APPELLANT
PHILIP
SCHUTTE
SECOND APPELLANT
and
THE
STATE
RESPONDENT
Neutral
citation:
Doorewaard
and Another v The State
(Case
no 908/2019)
[2020] ZASCA 155
(27 November 2020)
Bench:
PONNAN and MOLEMELA
JJA and LEDWABA AJA
Heard:
17 August 2020
Delivered:
This judgment was
handed down electronically by circulation to the parties'
representatives via email, publication on the Supreme
Court of Appeal
website and release to SAFLII. The date and time for hand-down is
deemed to be 09h45 on 27 November 2020.
Summary:
Mutually destructive
versions – evidence of a single witness – corroboration
of evidence of a single witness –
duty to call important
witnesses.
ORDER
On
appeal from
: North
West Division of the High Court, Mahikeng (Hendricks J, sitting as
court of first instance):
(a)
The
appeal is upheld.
(b)
The
convictions and sentences are set aside and replaced with the
following order:
‘
Both
accused are found not guilty and discharged.’
JUDGMENT
Ledwaba
AJA
[1]
This appeal
concerns the conviction of the first and second appellants (referred
to, collectively, as the appellants) on five counts,
viz.
murder, kidnapping,
intimidation, theft, and the pointing of a firearm, by the North West
Division of the High Court, Mahikeng (Hendricks
J).
[1]
The appellants’ application for leave to appeal was refused by
the high court
[2]
,
but granted by the Supreme Court of Appeal in respect of the
convictions.
[2]
The murder charge
involves the death of Mathlomola Jonas Mosweu, a 15-year-old boy
(referred to as ‘the boy’, or ‘the
deceased,
interchangeably). There are two mutually destructive versions of the
circumstances surrounding the boy’s death,
one from the State
and the other from the defence. The main witness for the State, Mr
Sibongile Pakisi (Mr Pakisi), whose evidence
is amplified hereunder,
testified that on 20 April 2017 the appellants assaulted, mishandled
and threw the boy out of a moving
bakkie. They further assaulted,
kidnapped and intimidated Mr Pakisi, such intimidation also through
the pointing of a firearm.
The appellants denied all of the charges
against them and specifically denied that they had been in the
company of Mr Pakisi. They
testified that they had seen Mr Pakisi for
the first time on 26 March 2018, when an inspection
in
loco
was held by the
court. Their defence to the murder charge is that the boy must have
jumped from the back of
the moving bakkie whilst
on their way to the local South African Police Service (SAPS) station
in Coligny.
[3]
Mr Pakisi
testified that on 20 April 2017 at about 07h00 he was at Rietvlei
Farm, carrying eight Castle Lite beers, en route to
an informal
settlement called Scotland to visit a certain Constable Molefe. While
approaching the sunflower fields, he heard a
gunshot. Immediately
thereafter he saw the second appellant, Mr Schutte, holding a firearm
and running towards a quad bike. He
drove it towards the first
appellant, Mr Doorewaard, who was in a bakkie with an unknown white
man. He heard the boy crying and
saying, ‘Mother, please help –
I am dying’. Mr Schutte dismounted the quad bike and climbed
into the back of
the bakkie. Mr Doorewaard drove the bakkie away. The
unknown white man sat in the cab together with Mr Schutte and the boy
was
in the back of the bakkie. Mr Pakisi further testified that he
had seen Mr Schutte throwing the boy out of the moving bakkie.
Thereafter
the bakkie stopped, Mr Schutte picked up the boy and put
him back into the bakkie. They
drove into the
field for
about three minutes and
then returned to
the
place where the quad bike
was parked.
[4]
According to Mr
Pakisi, at this point Mr Schutte alighted from the bakkie and drove
the quad bike towards him (Mr Pakisi) to ask
what he had seen. He
said that he had not seen anything, because he was fearful that what
he had observed happening to the boy
could happen to himself. Mr
Schutte pointed a firearm at him and forced him to ride with him on
the quad bike to where the bakkie
was parked. Upon arrival, Mr Pakisi
noticed the boy lying on his stomach and bleeding through his mouth,
ears and nose in the back
of the bakkie. They left the sunflower
field with the bakkie and the quad bike and proceeded to a house
alongside a graveyard,
at which point the quad bike was parked and
the group departed together in the bakkie.
[5]
Mr Doorewaard and
the other unknown white man were in the cab, while Mr Schutte, the
boy and Mr Pakisi were in the back of the bakkie.
They went to
Noordwes Kooperasie. Here Mr Schutte asked Mr Pakisi once more what
he had seen, to which he again responded with
nothing. Mr Schutte and
the unknown white man assaulted Mr Pakisi with open hands and
clenched fists on his face. Thereafter, they
went towards Putfontein
and stopped at the T-junction of Lichtenburg and Putfontein.
[6]
The appellants and
the unknown white man accused Mr Pakisi of stealing from the farms.
Mr Doorewaard took hold of a bottle of Captain
Morgan, an alcoholic
beverage, from behind the seat of the bakkie, which Mr Schutte then
took from him and forced Mr Pakisi to
drink from it. Whilst drinking
and complaining that his lungs were ‘burning’, the
appellants continued to assault him
with open hands, their fists and
by kicking him. He was also forced to drink one of the beers that he
had with him. The appellants,
while pointing a firearm, instructed Mr
Pakisi to jump over a fence and wade into a dirty dam. He complied
and, when the water
reached knee height, he ran back, grabbed Mr
Schutte and pleaded that they should not kill him. The unknown white
man pleaded also
with the appellants not to shoot him, Mr Pakisi,
because they were farm workers in the vicinity.
[7]
Thereafter the
appellants took Mr Pakisi to the bakkie where, again, Mr Doorewaard
forced him
to
drink from
the
bottle of Captain Morgan. They
left, joined the road
heading towards Lichtenburg and stopped at certain Eucalyptus trees.
The appellants ordered Mr
Pakisi to alight from the bakkie and begin running. As he was running
‘he heard gunshots next to
his feet’. He fell and
vomited. The men instructed him to eat what he had vomited. He felt
dizzy and the appellants told
him to return to the back of the bakkie
again. At that moment the boy was sleeping in the back of the bakkie.
The appellants drove
in the direction of Lichtenburg and in due
course turned towards Coligny. The bakkie came to a stop once more,
at which point Mr
Pakisi was instructed to exit the vehicle and begin
running. As he was running, he felt dizzy
and vomited again. The
appellants approached him
and forced him
to again consume what he
had regurgitated. Mr Schutte loaded him into the back of the bakkie,
which then sped off in haste. The
men stopped the bakkie at a certain
farm, where sheep are sold, and the appellants instructed Mr Pakisi
to alight from the bakkie.
Mr Schutte told him to pick up the boy,
who was still lying in the back of the van, and to check whether he
was still alive. Mr
Pakisi could not tell if the boy was still alive
or not. The appellants further instructed him to wipe the boy’s
blood with
his jersey.
[8]
Thereafter the
appellants requested Mr Pakisi’s residential address, the
details of which he provided to them. They further
asked him if he
shot any pictures with his cellphone, which Mr Doorewaard then
confiscated. They said they are taking the boy to
the clinic and
instructed him to keep his face down. Suddenly he was struck by
something at the back of his head, as a result of
which he lost
consciousness. After regaining it later on the same day, he returned
to his home to rest.
[9]
Later on the same
day Mr Pakisi went to Coligny police station to lay charges, but a
female police officer chased him away and said
that he was drunk. He
left the police station and went to the house of Warrant Officer
Seponkane, where he also found members of
the community. Seponkane
told Mr Pakisi that he was crazy and that he will not take his
statement. I pause to note that Mr Pakisi
did not explain why he went
to the house of Seponkane and why members of the community were
gathered there. Furthermore, he did
not explain why he did not go to
the police officer, Mr Molefe, who he said he was going to visit.
Seponkane only took his statement
on Sunday.
[10]
Mr Pakisi also
said that on Saturday, at about 03h50 in the morning, he heard a
knock on the door of his house. When he opened,
he noticed the
appellants who were carrying firearms. They asked him if he had
reported the incident to anybody and he told them
that he did not
report it to anyone. On Saturday at 10h00 Mr Pakisi met Mr Schutte in
town, who had earlier instructed him that
they meet at First National
Bank. Thereafter, he decided to report the matter at the police
station again. He found the same female
police officer who was on
duty when he went to the police station two days prior. The female
police officer did not record a statement
from him; instead, she told
him to go home and wait for the police who would come to him.
Unfortunately, the identification of
the alleged female police
officer was not revealed and she was not called as a witness to
corroborate the version of Mr Pakisi.
[11]
On Sunday the
police did not show up and Mr Pakisi went to Mr Nyakana, the
principal of JR Sesetsi School, to report what had happened.
Mr
Nyakana arranged that the police should be involved. Seponkane took
Mr Pakisi to the police station where he made a statement
and was
also instructed to sign blank pages. Again, it is unfortunate that
the State did not call Mr Nyakana and/or Seponkane to
testify and
corroborate the evidence of Mr Pakisi.
[12]
Crucially, Mr
Pakisi testified that on Sunday he visited the sunflower fields with
Seponkane and he showed him the place where the
appellants had thrown
the boy out of the moving van. The boy’s blood was still
visible at the scene. Seponkane told him,
Mr Pakisi, that he will
summon forensic investigators to examine the scene the next day.
[13]
The trial court
ruled that an inspection
in
loco
should be held
on 26 March 2018, about 11 months after the incident. Mr Pakisi was
present when the inspection
in
loco
was held and he
also pointed out various scenes that he had visited with the
appellants on 20 April 2017.
[14]
The appellants’
evidence is that, on the morning of 20 April 2017, they drove
together to observe the peanut crops. At about
9h30 they noticed two
boys stealing sunflower heads from the farm that was owned by their
employer. When they approached the two
boys they ran away, in
different directions, into the field. The appellants picked up the
sunflower heads left by the boys and
loaded them into the bakkie.
They managed to trace one boy (the deceased). When they summoned him
he cooperated. They asked him
about the whereabouts of the other boy
and he pointed in the direction of the informal settlement, Scotland.
Mr Doorewaard requested
the boy to climb onto the back of the bakkie
and he complied.
[15]
The boy wanted to
sit on the side of the loading bin and Mr Doorewaard told him to sit
against the cab. They travelled in the direction
of Lichtenburg to
trace the other boy, but could not find him. They made a U-turn and
drove to the Coligny SAPS station to lay
a charge of theft against
the boy. On the way Mr Doorewaard, the driver, checked his rear-view
mirror and noticed that the boy
was still seated on the back of the
bakkie. When he approached a curve, he focused on the road which was
uneven. After executing
the curve, Mr Schutte told him that he thinks
the boy had jumped from the bakkie. Mr Doorewaard was shocked and
made a U-turn to
check what could have happened. As they were
driving, they passed the boy who was lying down on the gravel road.
They made another
U-turn and stopped next to the boy. He had injuries
and was bleeding from his mouth, but he was still alive. They did not
give
the boy any medical assistance and they also did not have the
phone numbers of an ambulance.
[16]
The appellants
decided to proceed to Coligny SAPS station. While en route they met a
man, Mr Israel Moeketsi, and a woman, walking
towards Coligny. The
appellants requested them to look after the boy, who was lying down
on the gravel road.
[17]
Mr Israel
Moeketsi, a State witness, testified that he was with a woman and
that, at that stage, they were walking from an informal
settlement to
the Coligny clinic. He noticed the white bakkie passing and
thereafter saw a boy lying on the road, bleeding. Subsequently,
a
bakkie approached them and the appellants requested them to look
after the boy.
[18]
Brigadier Kgorane,
provincial head of organised crime, testified that on Monday, 24
April 2017,
he
visited the Coligny
SAPS
station to
make
enquiries about the deceased because the community was protesting. He
consulted with Seponkane and was informed that there
is an eyewitness
to the death of the boy. Seponkane explained to Brigadier Kgorane
that he had taken a statement from the eyewitness,
Mr Pakisi, and
that he was crazy. Seponkane further informed him that
Mr Pakisi had pointed out
certain places and stated that there were two suspects involved.
Brigadier Kgorane further testified that
he consulted with Mr Pakisi
and that they went to the scene of the alleged crime, along with a
professional photographer.
[19]
At the close of
State’s case, the trial court found the appellants not guilty
and discharged them in terms of s 174 of the
Criminal Procedure Act
51 of 1977 (the CPA) on counts 5 and 6, unlawful possession of a
firearm and ammunition,
without giving reasons
for its judgment.
[20]
Paragraph 13 of
the summary of the substantial facts, in terms of s 144 of the CPA,
reads as follows: ‘The next morning, the
accused went to the
witness house and threatened him further. An intimidation docket was
opened’. Assuming that
the phrase ‘the
next morning’, as used here, refers to the 21
st
or the 22
nd
of April 2017, according to the evidence of Mr Pakisi he did not go
to the police station on 21 April 2017. Furthermore, there
is no
evidence that a docket relating to the incident was opened on 22
April 2017. Importantly, there is no explanation why only
a charge of
intimidation is mentioned and other serious charges, for example
attempted murder, or assault with intent to do grievous
bodily harm
on Mr Pakisi, are not mentioned. It is also not known which police
officer opened the alleged docket on 21 or 22 April
2017.
[21]
Mr Pakisi in his
affidavit dated 22 May 2017 does not mention going to the police
station or for medical treatment on either 21
or 22 April
2017.
[3]
[22]
Mr Pakisi is a
single witness in respect of all the charges against the appellants.
In terms of s 208 of the CPA, ‘[a]n accused
may be convicted of
any offence on the single evidence of any competent witness’.
The onus is on the State to prove the guilt
of the accused beyond
reasonable doubt. Where there are two mutually
destructive
versions, as is the case
in this matter, the approach is as follows: ‘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 –
in this case proof beyond reasonable doubt.’
[4]
[23]
Some of the issues
and questions to be considered in this matter are:
(a)
Was
Mr Pakisi in the company of the appellants on 20 April 2017 and did
the appellants act as he testified?
(b)
Why
did Mr Pakisi not go for medical treatment for the injuries that he
alleged were caused by the appellants?
(c)
How
did Mr Pakisi know that the deceased was bleeding through his mouth,
nose and ears? and
(d)
How
did Mr Pakisi know that Mr Doorewaard was the driver of the bakkie?
[24]
The trial court
found that the contradictions in the evidence of Mr Pakisi were not
material. The judge was also of the view that
there was no cogent
reason why Mr Pakisi could have been innovative when thinking about
the different scenes, and what transpired
at each of them, if it did
not happen.
[25]
In
S
v Mkohle
[5]
the Appellate Division said the following:
‘
Contradictions
per
se
do not lead to the
rejection of a witness’ evidence. … [T]hey may simply be
indicative of an error. … [N]ot
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.’
[6]
[26]
Mr Pakisi
testified that on 23 April 2017 he visited the scene of the alleged
crime with Seponkane and they noticed some blood.
Yet none of the
photos taken the following day show the alleged blood samples.
[27]
In the affidavit
of Warrant Officer Mabote, it is mentioned that on 24 April 2017 he
photographed scenes shown by Mr Pakisi. Photos
14-19, and 23, show
the sunflower field where the boy was thrown out of the bakkie.
Photos 30-35
indicate
scenes where Mr Pakisi alleges the appellants attempted to kill him.
On the key to the Sketch Plan and Photographs, Mabote
noted points A,
B and C which would have been indicated to him by Mr Pakisi and Mr
Modisane. On the photographs, point C indicates
the area where the
boy was allegedly found after the incident. However, and importantly,
according to the evidence of Mr Pakisi
he last saw the boy in the
bakkie when he was hit at the back of his head and lost
consciousness, and he only regained his consciousness
later that day,
at which point he went home. It should be noted that Mr Pakisi did
not see where the boy landed as he was not present
at the scene where
he was removed by the ambulance. It follows that Mr Pakisi did not
provide the warrant officer with the correct
information.
[28]
Importantly,
Mabote, who has been a police officer for 25 years, and a draughtsman
and photographer for ten years, did not mentioned
in his affidavit
that blood samples were mentioned or showed to him by Mr Pakisi when
he shot the photographs. Mabote states in
his affidavit that Modisane
was present when the photos
were
shot,
but
when
Modisane
testified
he
did
not
mention
that
he
was present when the
photographs were taken, nor that Mr Pakisi pointed to the scene where
the police found the boy. He also did
not mention anything about the
blood.
[29]
Another
interesting factor regarding the shooting of the photographs is that
Brigadier Kgorane testified that, on 24 April 2017,
he arranged
photographers and they, together with Mr Pakisi and the police
officers, went to the scene of the alleged crime where
Mr Pakisi
pointed out all of the scenes mentioned in his statement. Mr Pakisi
confirmed that photographs were taken, but these
photographs were not
handed in as exhibits. Brigadier Kgorane also stated that Mr Pakisi
informed him about
there
being
two
suspects
involved.
This
is
a
material
contradiction
of
the evidence of Mr
Pakisi, who stated that three people were involved in the comission
of the crimes.
[30]
Brigadier Kgorane
further testified that the decision to charge the two appellants was
made on 24 April 2017. On 25 April 2017,
the two appellants handed
themselves over to the police and were charged. Brigadier Kgorane
requested the appellants to hand over
the bakkie that they had used
on 20 April
2017.
[31]
He appointed
Lieutenant Colonel Nkosi as
a new investigating
officer
because
he was not satisfied with the manner in which Seponkane had handled
the case. Importantly, the record of proceedings shows
that, on 27
April 2017, Seponkane was still involved in the investigation of the
case. Indeed, according to the affidavit of Constable
Moremi, a
draughtsman and photographer, he was requested by Seponkane on 27
April 2017 to photograph the vehicle with registration
number FHZ 993
NW at 57 Nelson Mandela Drive, Lichtenburg. Seponkane indicated
certain points to him. The vehicle was found in
a fuming tent at
Lichtenburg.
[32]
The vehicle that
was tested for the blood samples was not identified by Mr Pakisi, nor
Mr Modisame, nor Mr Moeketsi, as the bakkie
that was driven by the
appellants on 20 April 2017 when the alleged crimes were committed.
[33]
The results of
Hexicon Orbit, which was used to test for human blood in the loading
bin of the vehicle, were negative. That is,
samples of blood could
not be found in the vehicle. Assuming that the vehicle that was
tested was in fact the bakkie that was used
to ferry the boy who Mr
Pakisi says was bleeding profusely, the results of the Hexicon Orbit
test cast serious doubt on the testimony
and credibility of Mr
Pakisi, who is a single witness.
[34]
Mr Pakisi further
testified about a quad bike, a third suspect, and firearms. There is
no corroborative evidence about whether the
appellants
possessed firearms or if
the quad bike was used at the sunflower field. If the State based its
charges on the evidence of Mr Pakisi,
it did not explain why they
failed to charge the appellants with the attempted murder of Mr
Pakisi.
[35]
In my view,
Seponkane was an important witness who could have corroborated the
evidence of Mr Pakisi and clarified some material
aspects of the
case. It is not clear if there were any blood samples or whether
there was any blood on the ground when he, together
with Mr Pakisi,
on 23 April 2017 visited the scene where the appellants allegedly
threw the boy from the bakkie. There is no explanation
why Seponkane
was still involved in the investigation after a new investigating
officer was appointed. Mr Pakisi further testified
that the
appellants told him to wipe up the blood of the deceased with his
jersey. Yet Mr Pakisi’s blood-stained clothes
were not produced
as exhibits and no forensic tests were performed in order to check if
the blood on his clothes matched with the
blood on the deceased, to
confirm whether Mr Pakisi was in the company of the deceased and the
appellants.
[36]
The trial judge
also expressed his worries about the manner in which this case was
handled and investigated,
[7]
adding that the relevant police authority should
take action against the
police officers who did not perform their duties adequately or at
all.
[37]
Regarding the
firearms, the trial court discharged the appellants in terms of s 174
of the CPA on counts 5 and 6,
viz.
unlawful possession
of a firearm
and
unlawful possession of ammunition, but convicted them of pointing of
firearm. The only available evidence on the charge of pointing
of a
firearm is the version of Mr Pakisi. There is nothing corroborating
that the appellants pointed the firearm at Mr Pakisi.
Cartridges were
not found at the scene mentioned by Mr Pakisi. Except from what was
said by Mr Pakisi there is no evidence that
corroborates the point
that charges relating to firearms were investigated.
[38]
Mr Pakisi, in his
affidavit to the police dated 22 May 2017, stated that the deceased
was thrown from the bakkie on three occasions.
However, when he
testified in court, he said that he saw the boy being thrown from the
bakkie once, and that he was not sure about
the other two incidents.
Interestingly, the trial court found this unexplained discrepancy not
to be material. In this regard the
court stated that ‘what is
material is the fact that the deceased was thrown from the bakkie
which is consistent with the
evidence as testified by Dr Moorad’.
I disagree, particularly because, save for the evidence of Mr Pakisi,
there was no direct
or satisfactory evidence that the boy was thrown
from the bakkie. In my view, there are material discrepancies in the
evidence
of Mr Pakisi. He is a single witness and there is no
corroboration to his evidence.
[39]
The appellants’
version that they arrested the boy at approximately 9h30, and arrived
at the police station at approximately
10h00, is more probable as
compared to the time mentioned by Mr Pakisi, namely that he noticed
the appellants for the first time
at about 7h30. Modisane testified
that the appellants arrived at the police station at approximately
10h00. The distance from the
sunflower fields to the police station
corresponds with the times provided by the appellants. On the
contrary, the distance and
the times on the version of Mr Pakisi do
not tally with the evidence of Modisane. The duration of the relevant
trip can be estimated
to be about one hour, considering that the
appellants allegedly stopped at certain places. On Mr Pakisi’s
version the appellants
should have arrived at the police station at
about
9h00.
[40]
There was evidence
by Mr Lynette van Zyl and Mr Samuel Hallat, Mr Doorewaard’s
witnesses from Vodacom, who testified as experts
in respect of the
times and calls made. Mr Bakkie Zyl confirmed that the police phoned
Mr Doorewaard at 10:08:39. This confirms
that the appellants arrived
at the police station at about 10h00. Their evidence does not
corroborate the version of Mr Pakisi
in connection with the areas
travelled, the distance and the estimated time it would take for the
said trips.
[41]
There is no
evidence or facts justifying that the trial court should draw an
inference that the appellants have thrown the deceased
from the
bakkie at a place where Mr Motleholwa saw him lying. Without any
substantiating evidence, the trial court
further held that
this
was
done
to
create
an
impression
that
the
deceased
jumped from the bakkie.
The expert evidence of Dr Moorad does not, in my view, support the
inference drawn by the trial court. There
are no facts to support
such an inference.
[8]
Dr Moorad said the following:
‘
My opinion would be that
from the injuries that were found on the post-mortem all of them
being blunt force injuries I maintain
that it is difficult to state
with any certainty that the injuries occurred either as a fall off
the bakkie or a jump off the bakkie.
They
are all blunt force
trauma and consistent with a motor vehicle collision.’
[42]
The appellants’
version regarding how the deceased apparently vanished from the
vehicle is not satisfactory. However, even
assuming as correct Mr
Pakisi’s testimony, all that was mentioned was the boy’s
injuries and the fact that Mr Doorewaard
was the driver and the onus
remains on the State to prove its case beyond a reasonable doubt.
[43]
In conclusion,
after a careful analysis of the totality of the evidence, I take the
view that the State did not prove its case beyond
reasonable doubt
and that the appellants should therefore be acquitted.
[44]
The following
order issues:
(a)
The
appeal is upheld.
(b)
The
convictions and sentences are set aside and replaced with the
following order:
‘
Both
accused are found not guilty and discharged.’
_____________________
A
P Ledwaba
Acting
Judge of Appeal
Molemela
JA
[45]
This
is a case with many, inexplicable twists and turns. After a careful
perusal of the record, the arguments on behalf of the State
and the
appellants and the judgment of the court a quo, I am inclined to
agree with the court a quo’s finding, which
is
supported
by
the
first
judgment,
that
the
criminal
investigation
in
this
matter was bungled.
[46]
A
person who is injured through falling or jumping from a moving
vehicle is involved in a motor vehicle accident for purposes of
s
61(1) of the National Road Traffic Act 93 of 1996
[9]
(National Road Traffic Act). Although Warrant Officer Modisane, given
his seniority, must have been aware that basic precepts applicable
to
motor vehicle accidents were flouted, he took no steps to enforce
them. On his version, when the appellants refused to go back
to the
scene, he did absolutely nothing about that. Neither did the fact
that the deceased soon succumbed to his injuries galvanise
him into
action. Contrary to basic police procedures, he failed to obtain a
written statement from the driver of the vehicle (the
first
appellant) and failed to open a docket. It was only the violent
reaction of community members that triggered the opening
of a docket.
[47]
These
failures resulted in missed opportunities in the investigation of the
matter. Had proper procedures been followed, the appellants’
bakkie would have been stationary at the scene of the accident and
the police would have had a chance to inspect it and assess
its
roadworthiness. Thus, if there were any blood stains on the loading
bin of the bakkie, they would have been visible during
the general
inspection of the vehicle at the scene, which would have led the
inspecting officer to raise an alarm. The appellants’
bakkie
was only inspected days after
the
incident.
[48]
A
further
astounding
aspect
is
the
reaction
of
Warrant
Officer Seponkane,
who
was the investigating officer tasked with taking Mr Pakisi’s
statement. After taking down a statement implicating the
appellants
in murder and other serious charges, Seponkane did not inspect the
scene of the crime and record his observations. Instead,
the scene
was visited days after the incident, and only after the intervention
of senior officers.
[49]
As
regards Mr Pakisi’s evidence that he had sustained visible
injuries at the hands of the appellants, it is troubling that
despite
the fact that he had allegedly recounted his ordeal to his cousin and
showed him his injuries on the same day on which
the incident
occurred, his cousin simply assumed that he was joking and did
nothing about the matter. Furthermore, a statement
was not taken from
his cousin so that the presence of Mr Pakisi’s injuries could
be corroborated. Of course, there is also
the aspect pertaining to
the jersey with which Mr Pakisi allegedly wiped the blood of the
deceased, which is canvassed in the first
judgment. There is simply
no explanation whatsoever as to why the jersey in question was not
handed to the police for purposes
of testing the blood stains for the
presence of the deceased’s DNA. For all the reasons mentioned
above, I am inclined to
agree with the court a quo that the criminal
investigation was bungled. Where I differ with the court a quo is the
extent or the
impact of such bungling.
[50]
In
my view, the bungling of the criminal investigation impacted on the
strength of the State’s case, in particular on the
reliability
of Mr Pakisi’s evidence. I agree with the court a quo’s
findings in relation to aspects which tend to attest
to
Mr
Pakisi’s honesty, such as the fact that he knew that the first
appellant was the driver of the bakkie on the day in question,
and
also his description of the injuries sustained by the deceased (which
were independently confirmed by the paramedics and the
police
officers who attended the scene as well as the post-mortem results).
Furthermore, even though Mr Pakisi had not met the
appellants before,
his description of them was accurate. These aspects make it difficult
to conclude that Mr Pakisi’s entire
version constituted a
fabrication. It is nevertheless trite that the evidence of a single
witness can only sustain a conviction
if it meets certain
requirements. Honesty alone is not sufficient. The witness must also
be
reliable.
[10]
[51]
I agree that Mr
Pakisi’s evidence did not pass muster for the reasons already
mentioned in the first judgment.
I
must state that I found the discrepancy between the averments made in
his second written statement, which were carefully taken
down by a
senior officer under circumstances that withstand scrutiny, and his
oral evidence, to be troubling. Particularly disconcerting
was that,
in his written statement, Mr Pakisi details the three occasions on
which the deceased was allegedly thrown out of the
bakkie. Yet in his
oral evidence, Mr Pakisi stated that he personally witnessed only one
incident and merely assumed that the deceased
was thrown out three
times because the bakkie stopped twice after the first incident. This
is a serious weakness in the State’s
case. In my view, Mr
Pakisi’s evidence does not meet the standard set for the
evidence of a single witness.
[11]
[52]
An
aspect that warrants mention is that the crime scene was visited by
the SAPS officials some days after the incident, by which
time it
could already have been contaminated by elements such as the weather,
or even deliberately, as Mr Pakisi’s account
of events had
quickly become public knowledge. The appellants’ bakkie, too,
was only tested for the presence of blood a few
days after the
incident. The lack of objective evidence at the scene of the alleged
crime must be seen against this light. The
evidence pertaining to the
cell phone towers that allegedly reflected the whereabouts of the
appellants was correctly assessed
by the court a quo. In my view,
that evidence was a neutral factor in the case, considering that
the
data is, apparently, captured only when a transaction such as a phone
call (or SMS transmission) is made or received.
[53]
Having said that,
the
fact remains that there was no objective evidence which could serve
as a safeguard for accepting Mr Pakisi’s version on
how the
events pertaining to the deceased’s death unfolded on that day.
The risk of convicting the appellants on the basis
of Mr Pakisi’s
uncorroborated evidence cannot be ignored. Given the universal
standard of proof in criminal cases, that the
State must prove its
case beyond reasonable doubt, I agree with the first judgment’s
finding that the appellants ought to
be given the benefit of the
doubt and were thus entitled to be acquitted
on
the
charge
of
murder as well as the
other
charges preferred against
them.
I therefore agree that the appeal ought to be upheld and that the
appellants’ convictions ought to be set aside.
To
my mind, however, that is not the end of the matter; there are other
circumstances that bear consideration. For this reason,
I
respectfully
disagree
with
the
criticism
by
my
colleague,
Ponnan
JA
(the
third
judgment), in
relation to the court a quo’s refusal of the appellants’
application for discharge at the close of the
State case, as
contemplated in s 174 of the CPA. A brief discussion of that section
is necessary, as it serves as the backdrop
against which the court’s
refusal to discharge the appellants is to be viewed.
[54]
The starting point
must be the wording of
s 174
of the
Criminal Procedure Act, which
reads:
‘
If, at the close of the
case for the prosecution at any trial, the court is of the opinion
that there is no evidence that the accused
committed the offence
referred to in the charge
or
any offence of which he may be convicted on the charge
,
it may
return
a verdict of not guilty.’ (Own emphasis.) In
R
v Shein
,
[12]
this court held that the reference to the words ‘no evidence’
in the text of that provision meant ‘evidence on
which a
reasonable court, acting carefully, “might convict”’.
The following dictum of this court in
S
v Lubaxa
[13]
is instructive: ‘
Section 174
of [the CPA] repeats in all
material respects the terms of its predecessors in the 1917 and 1955
Criminal Codes. It permits a trial
court to return a verdict of not
guilty at the close of the case for the prosecution if the court is
of the opinion that there
is no evidence (meaning evidence upon which
a reasonable person
might
convict:
S
v Khanyapa
1979 (1)
SA 824
(A) at 838F-G) that the accused committed the offence with
which he is charged,
or
an offence which is a competent verdict on the charge
.’
[14]
[55]
Hiemstra
[15]
opines that the decision to allow or refuse a discharge is fact-
specific and ‘the entire spectrum of circumstances’
plays
a role. I agree. For reasons that will presently become evident, I am
of the
view
that the court a quo’s refusal to discharge the appellants was
justified under the circumstances.
[56]
This court in
S
v Lubaxa
pointed out
that what is entailed by a fair trial ‘must necessarily be
determined by the particular circumstances’ of
a case.
[16]
Similarly, in
S v
Steyn
,
[17]
the Constitutional Court explained that in determining what is fair,
‘the context or prevailing circumstances are of primary
importance’, as there is no such thing as ‘fairness in a
vacuum’.
[18]
The following observation made by Kriegler J in
Key
v Attorney-General Cape Provincial Division and Another
[19]
is apposite:
‘
In any democratic
criminal justice system there is a tension between, on the one hand,
the public interest in bringing criminals
to book and, on the other,
the equally great public interest in ensuring that justice is
manifestly done to all, even those suspected
of conduct which would
put them beyond the pale. To be sure, a prominent feature of that
tension is the universal and unceasing
endeavour by international
human rights bodies, enlightened legislatures and courts to prevent
or curtail excessive zeal by State
agencies in the prevention,
investigation or prosecution of crime. But none of that means
sympathy for crime and its perpetrators.
Nor does it mean a
predilection for technical niceties and ingenious legal stratagems.
What the Constitution demands is that the
accused be given a fair
trial.
Ultimately, as
was held in Ferreira v Levin, fairness is an issue which has to be
decided upon the facts of each case, and the trial
judge is the
person best placed to take that decision.’
(Emphasis
added.)
[57]
The
circumstances of this case warranted a further consideration,
viz.
whether
the appellants are guilty on the competent verdict of culpable
homicide, an aspect to which I now turn.
[20]
During the cross-examination of the appellants, the State Advocate
explored this aspect. It is evident from the judgment of the
court a
quo that the appellants had seemingly made submissions on this
aspect, which the trial court, in
light
of
its
guilty
verdict
on
the
murder
count,
did
not
consider
necessary
to
evaluate.
During the hearing of the appeal, this aspect was debated with
counsel. Counsel for the State argued that if this court
was not
persuaded that the charge of murder had been proven, it should set
that conviction aside and replace it with a conviction
of
culpable homicide. Counsel for the appellants argued that the State
had not proven the commission of culpable homicide beyond
reasonable
doubt.
[58]
It
is trite that although the onus of proof differs, in relation to
liability, the test of negligence to be applied in criminal
trials is
the same as that applied in civil cases, namely the standard of care
and skill which would be observed by a reasonable
man.
[21]
The learned authors of
Cooper’s
Motor Law
explain:
‘
On
a charge of culpable homicide, the critical question is thus: would a
reasonable person in the accused’s position have
foreseen the
possibility that his or her driving may cause death? Once
foreseeability has been established, it is incumbent on
the court to
further inquire whether the reasonable person would have taken steps
to guard against such a possibility, and whether
the accused’s
conduct deviated from that of the reasonable person…
It is the
“general” possibility, not the specific manner in which
the deceased was killed, that must be reasonably foreseeable.
Foreseeability
is not confined to an accused’s own conduct.’
[22]
[59]
As
regards the appropriate approach, it has also been held as follows:
‘
[T]he
practical approach is to look at
all
the
facts at the end of the case, including, if it be one of the facts,
the absence of any evidence from the person to whom negligence
is
sought to be imputed… And the enquiry is whether, from the
totality of the facts, one can draw an inference of negligence…’
[23]
For
the reasons set out below, I am of the view that the totality of the
facts of this case justify an inference of gross negligence.
[60]
From
what can be seen in the photographs depicting the contents of the
appellants’ bakkie, the incident that led to the deceased’s
death was sparked by the suspected theft of about five heads of the
sunflower plant. In response to the questions posed by the
court a
quo, the appellants estimated the value of the sunflower heads to be
between R60-R80. On the appellants’ version,
they were driving
past their employer’s sunflower fields on the gravel road
linking Coligny and Lichtenburg when they observed
the deceased and
his unidentified companion stealing sunflower heads. On this aspect,
Modisane’s
testimony was that the appellants informed him that they saw the
deceased and his companion at the sunflower fields
while they were in
the process of patrolling the crop fields on their employer’s
farm. The appellants
disputed
that evidence. According
to
the appellants, upon noticing that the deceased and his companion
were stealing sunflower heads, t
he
first appellant immediately stopped the vehicle and asked them what
they were doing. The duo immediately threw the sunflower
heads on the
ground and fled the scene in different directions. Before pursuing
them, the first appellant picked up the sunflower
heads from the
ground and put them in the bakkie.
[61]
The
appellants stated that they decided not to pursue the unidentified
companion that had fled in the direction of the sunflower
fields, as
they knew it would be difficult to spot him. Instead, they drove in
the direction of the one who had fled in the direction
of the maize
fields. They saw the deceased climbing over the cattle fence, after
which he suddenly stopped. Having apparently decided
that the
situation warranted the arrest of the deceased, the first appellant
stopped
the
bakkie and instructed the deceased to get onto the back of the
bakkie. The deceased obliged.
[62]
Notably,
there was no attempt to summon the police to the scene.
[24]
It bears mentioning that, in the normal course, an arrestee is
transported by the police in a bakkie with a canopy, which at least
ensures that the arrestee does not fall out in the normal operation
of the vehicle, and thus excludes the risk of the arrestee
being
ejected from it. It is axiomatic that a bakkie without a canopy
cannot offer the same protection. In addition to offering
protection
to the arrestee, the canopy of the police van ensures that the
arrestee does not escape.
[63]
In
my view, by deciding to arrest the deceased, both appellants assumed
the duty of care to ensure his safe conveyance to the police
station.
I noted from the contents of the post-mortem report and the
deceased’s photographs, as depicted in the photo album
that
served as an exhibit in the proceedings, that a
lthough
he was 15 years old, he was of small build. It is therefore not
surprising that the appellants, throughout their evidence,
referred
to him as a boy (‘seun’). According to
the
appellants, the deceased had opted to sit at the corner of the
bakkie, close to the tailgate, but the first appellant instructed
him
to sit in the middle of the loading bin, against the cabin section.
When asked why he did not sit at the back of the bakkie
with the
deceased, the second appellant stated that he did not consider it
necessary to do so as he did not think that the deceased
would
attempt to
flee.
[64]
On the appellants’
own version, they were traveling on an uneven gravel road that had
ridges and potholes. The photographs
that were submitted as exhibits
attest to the poor condition of that road. Although both appellants
were aware that the deceased
was petite, none of them, as mature
adults, expressed misgivings about him sitting alone and unrestrained
in the loading bin of
the bakkie. Both appellants must have had a
full appreciation of the risk of the deceased, as an unrestrained
passenger sitting
in the loading bin, being ejected from the moving
bakkie that was travelling on a bumpy road, but they failed to take
the necessary
steps to ensure that that risk would not eventuate. In
deciding to convey the diminutive deceased in a bakkie without a
canopy
and on a bumpy road, the appellants created a potentially
dangerous situation for the deceased.
[65]
In my view, a
reasonable person in the position of the first appellant, as the
driver, would have foreseen that conveying the deceased
at the back
of a bakkie without a canopy presented certain risks, including that
he could lose his balance while the bakkie was
going around the bend
of an uneven, ridged road surface, as he was unrestrained.
Appreciating that risk and conscious that the
deceased, as an
arrestee, had to be safely conveyed to the police station, a
reasonable person in the position of the appellants
would have
directed the deceased to sit in the cabin section of the bakkie with
the driver (first appellant). Alternatively, he/she
would have
ensured that the second appellant sat with the deceased in the
loading bin as an escort to prevent, at the very least,
the deceased
being catapulted from the moving bakkie on account of the poor road
conditions. Instructing the deceased to sit in
the middle of the
loading bin against the cabin could not have mitigated that risk.
[66]
Furthermore, the
second appellant’s version is that the first appellant was
driving at 60km/h when approaching the bend on
the
Lichtenburg-Coligny gravel road. A reasonable person in the position
of the first appellant would not have approached a bend
at that
speed, given the poor conditions of that gravel road and the presence
of the unrestrained deceased in the loading bin of
the bakkie. It is
clear from the evidence of the second appellant that the deceased was
still seated at the back of the bakkie
shortly before they started
moving around the bend. The deceased’s absence from the loading
bin was noted while the first
appellant was still rounding the bend.
The appellants’ version leaves me with the impression that no
serious thought was
directed at the safety of the deceased.
[67]
It is true that
Modisane testified that he personally ‘did not have a problem’
with the arrangement of the farmers bringing
suspects to the police
station; and, further, that the appellants had, on two prior
occasions, brought ‘underage boys’
to the charge office
for the theft of their products. In relation to the remarks that, ‘on
no previous occasion had any suspect
jumped off the bakkie’ and
that ‘there had never been a complaint of any
sort by
the suspects’, in
my
view
the fact that underage
boys had previously been brought to the charge office without any
demur from them or the police did not serve
as a carte blanche for
the appellants to continue doing so in whatever way they deemed
appropriate. I am mindful of the fact that
the context of a scarcity
of resources in our country, especially in rural areas, must always
be borne in mind. Indeed, the police
service is often left with
inadequate human and material resources. I am, at the same time,
equally alive to the lawfulness of
a citizen’s arrest. But
basic precepts still need to be observed in order to ensure the
safety of the arrestee.
[68]
As I see it,
accepting that the deceased jumped off the bakkie should not
exculpate the appellants. As stated before, both appellants
took it
upon themselves to apprehend the
deceased, take him
into their custody
and transport
him
to the
police station. In so
doing, they assumed the duty of care to ensure his safety while he
was in their custody. They both knew that
he and his companion’s
initial reaction, when confronted, was to flee from the scene. They
had also observed that the deceased’s
inclination, when
instructed to get onto the back of the bakkie, was to sit in one of
the corners closest to the tailgate. That
he could attempt to escape
from their custody by jumping from the moving bakkie, and harming
himself in the process, must therefore
have been foreseeable. And the
eventuality of the deceased jumping from the moving bakkie could
easily have been prevented by either
transporting him in the cabin of
the bakkie, or one of the appellants sitting with him in the loading
bin. Instead, both appellants
opted to sit in the cabin while the
deceased sat alone and unrestrained in the loading bin of their
bakkie.
[69]
On the appellants’
own version, upon realising that the deceased was no longer sitting
in the loading bin of the bakkie, they
concluded that he had jumped
out and fled and decided to drive back in an effort to apprehend him
once more. The second appellant’s
account on this aspect was
narrated as follows:
‘
Nou wat doen julle nou,
nou dat jy vir Mnr Doorewaard gesê het die oorledene het
gespring, wat gebeur toe? -- Ons het weer
omgedraai om te kyk of ons
hom kan kry.
[Now what are you guys doing
now, now that you have told Mr Doorewaard that the deceased has
jumped, what happened then? -- We turned
around again to see if we
could get him.]
As u sê of julle hom kan
kry wat bedoel u daarmee? -- Ek het vermoed hy het dalk probeer
weghardloop so ek het gedink ‘n
mens moet hom seker maar weer
vang.
[When you say if you could get
him, what do you mean with that? -- I suspected that he perhaps
attempted to run away, so I thought
one should probably catch him
again.]
En wat gebeur nou? -- Toe ons
terug kom, na ons omgedraai het, het ons weer rigting Litchtenburg
gery het. Toe ons om die draai
kom het ons die seun gesien lê
in die pad.
[And what happens now? -- When
we came back, after we had turned around, we were driving in the
direction of Lichtenburg again.
When we came around the corner we saw
the boy laying in the road.]
En wat doen u nou? -- Ons het
weer die bakkie omgedraai en langs hom gestop.
[And what are you doing now? --
We turned the bakkie around again and stopped next to him.] Kan u net
‘n bietjie klaarheid
daaroor gee die bakkie omgedraai en langs
gestop het is u eersverby die oorledene of hoe, kan u net verduidelik
asseblief? -- Ons
het, die oorledene het op ‘n draai gelê
so ons het net verby hom om die draai gegaan want aan die regterkant
die mielies
het dit moeilik gemaak om te sien weerskante waar die
voertuig van weerskante af kom.
[Can you just provide some
clarity on turning the bakkie around and stopping next to him, did
you first drive past the deceased
or what, can you please just
explain? -- The deceased was laying on a bend, so we just passed him
around the corner because on
the right-hand side the maize made it
difficult to see on both sides where the vehicle was coming from on
both sides].’
[25]
[70]
As regards the
appellants turning the vehicle around after noticing that the
deceased was no longer sitting in the loading bin,
Mr Motleholwa’s
evidence was that as he and his companion were approaching the
Lichtenburg-Coligny gravel road, he noticed
the appellants’
vehicle speeding in the direction of Lichtenburg, before re-emerging
in the direction of Coligny and then
stopping near to the spot where
the deceased lay unconscious on the road. The appellants’
denial of his evidence
relating to the speed at
which the
bakkie
was traveling was
put
to him
under
cross-examination, but he remained steadfast.
[71]
I interpose to
mention,
en passant
,
that I find it quite disconcerting that the appellants decided to
leave the scene of the accident merely to request the police
to
summon an ambulance. On their version, they had previously phoned the
police station on various occasions. They were both in
possession of
their cell phones and could simply have called the police, or anyone
else for that matter, from where the deceased
lay to request them to
summon an ambulance. Instead, the appellants left the scene for the
police station and delegated the task
of looking after the seriously
injured deceased to unknown persons under dangerous circumstances, as
the deceased lay on the road
in close proximity to the crop fields
which made it difficult to see oncoming traffic. Furthermore, I find
it quite shocking that
from the police station, the two appellants
went back to their workshop and continued about their daily farming
activities as if
nothing exceptional had happened. Despite their
awareness about the serious nature of the deceased’s injuries,
none of them
later bothered to find out what had ultimately
transpired. I do appreciate that this morally reprehensible conduct
has no bearing
on the inferences that may be drawn in relation to the
crime committed, hence the forewarning that this is mentioned in
passing.
[72]
I consider next
the issue of causal negligence. It is trite that in addition to
proving the negligence of an accused person, the
State also bears the
onus of proving that such negligence caused the death of the
deceased.
[26]
This means that the accused person must have foreseen that death
could eventuate from his conduct.
As
stated before, a person who is injured through falling or jumping
from a moving vehicle is involved in a motor vehicle accident
for
purposes of the
National Road Traffic Act.
In
this case, it
cannot
be gainsaid that the deceased’s death resulted from the serious
injuries he sustained from falling off the appellants’
moving
bakkie, regardless of how exactly that happened.
[73]
T
he
post-mortem report of Dr Letabile, who conducted the first
post-mortem, was unchallenged. The chief post-mortem findings are
that the deceased sustained ‘an atlanto-axial fracture
dislocation which is consistent with falling head first to the ground
at high velocity.’ It was not disputed that the deceased
sustained serious injuries, bled profusely and succumbed to his
injuries soon thereafter. Dr Moorad, a specialist forensic
pathologist, testified that the deceased’s injuries were
consistent
with a motor vehicle collision. It is evident from his
evidence that it is within the range of ordinary human experience
that particular
persons may suffer fatal
injuries
from falling out of a moving vehicle. In my view, causal negligence
has also been proven beyond reasonable doubt.
[74]
I have already
demonstrated that the conduct of both appellants, in placing the
helpless deceased in the position in which he found
himself, and
their omission to take adequate steps to prevent the eventuation of
the risks alluded to, constituted gross negligence.
Having said that,
the death of the deceased is directly linked to the driving of the
bakkie in which he was a passenger. Causal
negligence is therefore
ultimately attributable only to the first appellant, as the driver of
the bakkie. Thus, only he can be
held accountable for the negligence
that caused the deceased’s death. For
all the
reasons mentioned above,
I
would set
aside
the
first
appellant’s
conviction on the charge of murder and replace it with a conviction
on culpable
homicide.
___________________
M
B Molemela
Judge
of Appeal
Ponnan JA
[75]
I have had the
benefit of reading the judgments prepared by Ledwaba AJA and Molemela
JA. I agree with the former that the appeal
must succeed. Molemela JA
inclines to the view that, on count 1, the charge of murder, the
first appellant should be convicted
of culpable homicide. I cannot
agree with that
conclusion.
[76]
Like my
colleagues, I also am of the view that there are several disquieting
features about this case. To commence with the police
investigation
of the matter: Some three days after the deceased had met his death,
Brigadier Kgorane received a call from
his Provincial
Commissioner, as he put it, ‘to go and assist the investigators
about the case of the young boy who …
passed away on Friday
because there was more violence in the area of Coligny’. When
Kgorane got there, so he testified, there
were schoolchildren as well
as members of the community protesting at the police station. He was
informed by community leaders
‘that suspects who were involved
in the murder of this young boy are known and they were not
arrested’. In addition,
he continued, ‘they indicated
that there was an eyewitness available in the matter… They
were insisting that …
the child was killed. The community
members said they are not going to leave the police station …
until they see justice
being
done’.
[77]
Thus,
even
before
Kgorane
had
become
involved in
the
matter,
the
community had already
labelled what had befallen the young man a ‘murder’; were
satisfied that there was a witness to
the murder; had decried the
inaction on the part of the police; were insisting that charges be
preferred against the ‘suspects’;
and, had embarked upon
violent protest action, including the burning of houses and crops, to
force the hand of the police.
[78]
According to
Kgorane, when he interviewed the then investigating officer, Warrant
Officer Seponkane, he established that an inquest
docket had been
opened. Seponkane had informed him that he had taken a statement from
the eyewitness, but went on to state that
‘the alleged witness
is crazy’. Kgorane then arranged to interview the witness, Mr
Pakisi, and for him to point out
the crime scene. Thereafter he
instructed ‘them to change the charge to [a] charge of murder’
and he ‘appointed
the new investigator, which is Lieutenant
Colonel Nkosi, to investigate the matter’. What this reveals is
that, even before
Nkosi was appointed to investigate the matter, a
decision that a charge of murder should be preferred had already been
taken by
Kgorane.
This,
solely
on
the
strength
of
the
interview
with Mr
Pakisi
and
his pointing out of the
crime scene. Until then, no further investigation had been
conducted.
[79]
Nkosi did not
testify. We accordingly do not know what further investigations he
undertook in order to satisfy himself that there
was sufficient
evidence for an indictment against the appellants. There could hardly
have been much by way of further investigation
because, on that very
day, the appellants learnt that they were to be charged. The next
morning they handed themselves over to
the police. According
to Kgorane, members of
the
community
were ‘still
protesting
at the
police station where they
wanted to see the suspects being arrested’. The appellants were
then arrested and charged.
[80]
Prosecution
of crime is a matter of some constitutional importance to the
citizenry of this country. Given the adversarial nature
of criminal
trials, prosecutors play a critical role in our criminal justice
system. The mere decision to prosecute can have a
far-reaching impact
on an accused person’s life. It should not be lightly made,
because even if an accused is ultimately
acquitted, the harm already
suffered could prove to be irreparable.
[81]
Prosecutors
have at their disposal the full machinery of the State. It is for a
prosecutor to establish, through the presentation
of evidence, the
guilt of the accused beyond reasonable doubt. The prosecutor must
provide proof of the accusation made. To that
end, the prosecutor
must place before a court credible evidence in support of the alleged
crime. It is for a prosecutor to evaluate
the conduct of the police
and the strength of the State’s case that will be actively
presented to a court. It is not the
function of a prosecutor
‘disinterestedly to place a hotchpotch of contradictory
evidence before a court, and then [to] leave
the court to make of it
what it will’.
[27]
[82]
Broughton
observes:
‘
Firstly,
the prosecutor cannot become, as it were, an extension of the media.
The prosecutor must act independently of the media.
That is to say,
he or she must not base his or her decision on media reports or
opinions or sentiments expressed in the media,
nor in exercising his
or her discretion may he or she yield to or be influenced by pressure
placed on the prosecuting authority
by the media or the public as
expressed through the media. Besides political and judicial
interference, the prosecutorial discretion
to institute and stop
criminal proceedings must also be free from "
public
"
interference. Surrounding publicity may result in a prosecutor being
reluctant to withdraw a case notwithstanding that he
or she has
personal doubts concerning the guilt of the accused, because by doing
so he or she runs the risk of being perceived
in the public domain as
soft, fearful and lacking the skills to win the difficult case. Where
a case generates media attention,
there may be "enhanced
pressure" upon the prosecutor to obtain a conviction. A
prosecutor may prefer a particular charge
or a more serious charge
against an accused which is not supported by the prima facie evidence
as per the case docket, where he
or she is driven by a media frenzy
attendant upon the case (because of its high-profile or notorious
nature or because it involves
shocking facts) or by an outcry from
society (or community outrage) as expressed through the media in its
various forms, including
social media, especially as to what the
outcome of the case ought to be. The prosecutor may
thereby
hope to obtain a conviction which is not supported by the evidence
and to gain an increased or a more severe sentence than
what the
facts of the case warrant and thus to be seen in the media as a
champion of "justice" who satisfied the public's
baying for
justice and the maximum or harshest possible punishment (ie who did
what the public expected). The prosecutor may simply
lose his or her
objectivity on account of hostile or adverse pre-trial publicity when
exercising his or her discretion, instead
of devoting himself or
herself to the facts of the case.’
[28]
[83]
Had
there been a sufficiently careful assessment of the evidence in the
docket, the public interest and the law, perhaps some doubt
would
have been entertained as to whether there was, on the basis of
sufficient and admissible evidence, reasonable and probable
cause to
believe that the appellants are guilty of an offence and that
conviction was a reasonable prospect. To once again borrow
from
Broughton:
‘
Prosecutors
should bring professional standards of a non-partisan nature to their
prosecutorial discretion. The decision to prosecute
or not to
prosecute must be shaped in substance by
an
impartial and objective assessment of the prima facie evidence as
contained in the case docket
,
the law and the public interest, as well as prosecutorial guidelines,
codes of conduct and policy directives.
Prosecutors
must assess whether there is sufficient and admissible evidence to
provide
a reasonable prospect of a successful prosecution
.
There must indeed be a reasonable prospect of a conviction, otherwise
a prosecution should not be commenced or continued.
Before
a prosecution is initiated, there should be reasonable and probable
cause to believe that the accused is guilty
of
an offence
.
When instituting or maintaining criminal proceedings, the prosecutor
should proceed
only
when
a case is well founded,
upon
evidence reasonably believed to be reliable and admissible
.
It is clear that prosecutors must pay meticulous attention to police
dockets before deciding whether
or
not to prosecute, and in this respect they must act with objectivity.
A “sensible discretion” and “circumspection”
should be exercised by the prosecutor in deciding whether to
institute a prosecution. After all, “it is excellent to have
a
giant's strength, but it is tyrannous to use it like a giant.”
A prosecutor should be
just a prosecutor, not a persecutor
.’
[29]
(Italics my own.)
[84]
The prosecution in
this matter came to rest almost entirely on the evidence of Mr
Pakisi, a single State witness. Kgorane testified
during the bail
proceedings that, having visited the various scenes with Mr Pakisi,
he ‘could find no independent, verifiable
evidence linking [the
appellants] to those scenes’. That did not change by the time
of the trial. There was no evidence:
(i) of tyre tracks of either the
quad bike or bakkie in the sunflower fields; (ii) that the sunflower
crop had been damaged or
flattened in any way by having being driven
over; (iii) of spent cartridge cases at any of the various scenes
described by Mr Pakisi
at which, according to him, firearms had been
discharged; (iv) of blood on the back of the bakkie; or (v) of
visible injuries on
Mr Pakisi after what, on his version, were fairly
severe assaults.
[85]
In short, the
prosecution’s case consisted of Mr Pakisi’s say-so and
nothing more. No effort appears to have been made
by either Kgorane
or Nkosi to satisfy themselves as to the truthfulness and reliability
of Mr Pakisi’s account of events.
In my view, even the most
perfunctory interrogation of his version ought to have satisfied them
of his mendacity. Not only is there
no objective corroboration for
Mr Pakisi, but his
version, such as it is, is riddled with inconsistencies and
contradictions.
[86]
During the course
of his evidence, Mr Pakisi disavowed the first statement (the first
statement) that he had made to Seponkane on
Sunday, 23 April 2017. In
his evidence in chief, he testified:
‘
He then went with me to
his office. On arrival in his office he took out a paper. He then
said to me that I should tell him my statement.
Yes. -- After I gave him my
statement he then took those documents, or those papers that they use
at the police station, and he
said to me that I must sign. Those
papers were blank there was nothing written on them.
Yes. -- And then after I had
signed he said to me he is going, or he did not let me read my
statement he just said that he is going
to copy my statement into
those police papers, or police documents. Let me try to show that I
understand you here Mr Pakisi. Do
I understand you to be saying that
Seponkane caused you to sign a document, a police document and that
police document it was empty,
but whilst he was taking your statement
he had written on another document which he did not read to you? --
Yes.
All right this other paper which
you say he was writing on, but which he did not read to you. Did he
give that paper to you so that
you should read it yourself? -- No.
When you were giving him your
statement about what you knew did you give him detailed information?
-- Yes I gave him my statement
in detail, but when I was at NPA that
statement was not mine.’
[87]
Mr Pakisi made a
second statement on 22 May 2017 (the second statement) and a third on
25 July 2017. Both were made to Nkosi. In
that regard he testified:
‘…
Mr Pakisi
yesterday during your evidence-in-chief you testified that you made a
statement on 23 April which was reduced to writing
by Warrant-Officer
Seponkane and furthermore that you at some point at the offices of
the National Prosecuting Authority came to
see the contents of that
statement and that you were not happy with … the contents and
the correctness thereof is that correct?
-- That is correct.
On that day at the National
Prosecuting Authority’s office will I be correct to say that is
when you went to consult with
the prosecutor? -- That is correct.
And did you then inform the
prosecutor of the issues you took with the first statement? -- Yes.
Now after explaining to the prosecutor
how the first statement was
taken and that you were not happy with the procedure did the
prosecutor inform you of the correct procedure
for a statement to be
obtained? -- He said to me I should concentrate on the statement that
was taken by Colonel Nkosi I should
not confuse myself about that
statement that was taken by Warrant-Officer Seponkane.
Okay. So you were not happy with
the first statement but the second statement that you made to Colonel
Nkosi that statement was
correct?
…
-- Correct.
So the second statement you were
granted an opportunity to read through the statement or it was read
to you before you signed it?
-- I have read it they even read it to
me and I understood it then.
…
Mr Pakisi will I also be correct
to say that you made an additional statement, a third statement which
was also reduced to writing
by Colonel Nkosi and this one is dated 25
July 2017 where you made additional statements or provided initial
information pertaining
to your second statement. -- Yes…’
[88]
His explanation
for having made as many as three statements ran thus:
‘
Sir with regard to your
statements and your additional statements you have just indicated
that you made additional statements because
you kept on remembering
or recalling what actually happened on 20 April am I understanding
you correctly? -- Correct.
So it took a while for you to
recall everything in detail? -- Yes it took me time because I was
thinking and I had trauma and stress.
Now as you sit here and testify
ever since Wednesday are you convinced that you now with precision
recall what happened on 20 April
last year? -- Yes I remember now
even now some of the things are still coming.
Do you mean by saying that as
you sit there some things come to you for the very first time still?
-- That is correct because I
have been disturbed, I have been disturbed on my health and my mind.
Did you tell the prosecutor
about these problems you are experiencing before you started to
testify here? -- Advocate Molefe and
his group knows about my
problems because they have been informed because I have been
attending doctors and they were told, I was
telling them as well.
Now sir it was pointed out to
you that there are discrepancies and contradictions between what you
say here at court and the statements
you made? -- My statement is
corresponding because I have said the things that accused have
committed I did not change anything.
The problem is that when you now
say that you testify and even now things are only coming to you for
the first time and my predicament
is that when I close the
cross-examination you can remember tonight something else is that not
true? -- Yes that is correct because
I have flashbacks I can remember
every time what occurred.’
[89]
The summary of
substantial facts, in terms of s 144(3) of the Criminal Procedure Act
51 of 1977 (the CPA), alleged that the ‘accused
drove with the
deceased and threw him from the bakkie. He was put back into the
bakkie. This happened more than once’. That
could only have
come from Mr Pakisi. That was consistent with what was stated by him
in his second statement. He there
said:
‘
11. The white man driving
motorbike then climb at the back of the van and I saw him [grabbing]
the boy at the back of the van and
threw him on the ground.
12.
He then alight from the van
and grabbed the boy from the ground and put him back at the van. The
white fat beard male then climb
at the back of the van.
13.
By then I was standing
motionless, shocked and admiring to what had happened.
14.
The white van then started
moving and whilst in motion the very same white guy sitting at the
back of the van, grabbed the boy and
throw him out of the moving
vehicle. After throwing him, the van stopped and the white guy climb
out of the vehicle, picked up
the boy and put him at the back of the
van. The white guy again got back into the van at the back, and the
van started moving.
15.
The white fat guy with beard
again grabbed the boy and threw him for the third time out of a
moving vehicle. The van stopped again
and the white fat guy climb out
off the vehicle and grabbed the boy from the ground and put him back
at the back of the vehicle.’
That
was the tenor as well of his evidence in chief.
[90]
Under
cross-examination, though, Mr Pakisi altered his version. He
testified:
‘
Now that statement of
yours the second one dated the 22 May do you still have it there? --
Yes. You were very, very specific in
paras 11, 14 and 15 that the
child was thrown three times. Yes thrown three times and with
relation to the second and third time
paras 14 and 15 you described
this in detail. You saw when referring to the very same white guy
being accused 2 grabbed the boy
and throw him out of the moving
vehicle you said here that you saw this happening? -- I saw him with
my two eyes.
And that he for the second time
threw the child from the vehicle? -- I said at that point I did not
see what was occurring because
the van was deeper and I could not see
but the van was going and stopping and driving and stopping we would
not make out why are
they stopping did they throw the child or did
they not.
Yes that is what you came here
to testify so you will agree with me that you lied here. -- I am not
lying. I was telling the truth.
What I am telling is not a lie it is
the truth because as the van was moving and stopping and moving it
stopped two times and moved
three times so I do not know what are
they doing there at the front are they throwing him off or not.
Yes but if you confirm now …
So you are lying when you say the white guy then started moving the,
sorry the white van, this
is paragraph 14:
“
The white van then
started moving and whilst in motion the very same white guy sitting
at the back of the van grabbed the boy and
threw him out of the
moving vehicle.”
Now you come and say you could
not see that happening so you lied here. -- I saw him when he was
throwing him off for the first
time, on the first instance I observed
that but as the van was moving the van moved and stopped three times
so as it stopped, it
stopped for the first time, they threw the child
off and then it stopped for the first time then when it stopped for
the first
time I did not know what was going on there and it went on
and stopped again upfront as it was moving to the front and I could
not see what was going on whether they have thrown the child off or
not.
Sir the police investigated this
as a murder because of what you were telling them. You were telling
them that the child was thrown
three times. You also lied at
paragraph 15 when you told them that the child was thrown for yet
another time, a third time out
of the moving vehicle. -- I assumed so
that the child was thrown once again in another chance because of the
van drove and stopped
and then it drove and stopped so I assume that
as it stops as they picked the child up but I did not know if they
are throwing
the child.
Yes why did you not tell the
police that you assumed this, why did you tell the police that you
saw it happening? -- That is what
I mentioned in my statement that I
saw as if they are throwing him off three times that is why I assumed
so.
Tell me where you see that in
your statement at paragraph 14 and 15 that you thought or you assumed
that they threw the child for
a second and third time when the
vehicle stopped the second and third time? -- Because the van was
stopping and going and stopping
and going, it stopped three times so
there was nothing that I can do. Can you please explain to me
according to your observation
for me to be able to see what has
occurred did you expect me to follow that van and see where it ends
up?’
[91]
The high court
approached that aspect of Mr Pakisi’s evidence thus:
‘
In his statement it is
stated that [Mr Pakisi] said that the deceased was thrown from the
van thrice. In his evidence in court he
testified that it was once
and then that he is not sure about the other two acts, but infer that
it must have been a repetition.
Once again this is not material. What
is
material
is the fact that the deceased was thrown from the van which is
consistent with the evidence as testified to by Dr Moorad.’
But,
that is far too charitable to the witness.
[92]
The truth of the
matter is that this is a contradiction of some moment. It cannot
simply be brushed aside, as the high court purports
to do. Brushing
it aside in that fashion also ignores the context in which the
witness came to retract his earlier version. Mr
Pakisi initially
testified in some detail as to manner in which the deceased was
manhandled, thrown off the moving bakkie and landed
in the sunflower
field. He stated that the deceased had fallen on his head and landed
on the left side of his body. It was only
when it was suggested to
him that he could not have seen any of this because of the height of
the sunflower crop that he started
to retreat from his earlier
evidence. This culminated in him saying that he did not actually see
the deceased being thrown on the
second and third occasion, but that
he assumed that that had occurred. However, in that he was plainly
disingenuous.
[93]
Mr Pakisi made no
mention in his statements of having been assaulted by the appellants,
except for the following:
‘
46.
I bend my back and looked
on the ground and suddenly I was struck with something on the neck
and fell on the ground.’
This
assault, which is mentioned in his second statement, came at the end
of his ordeal that morning. It caused him to lose consciousness.
When
he came too, he did not know what had become of the appellants and
deceased.
[94]
And yet Mr
Pakisi’s testimony is replete with allegations that during the
course of the morning, on many different occasions,
he was subjected
to sustained assaults. I need only touch on the following: According
to Mr Pakisi, the appellants and the third
person drove from the
sunflower fields to NWK. Once there, so he testified:
‘
When I alighted they
asked me several times what did I see. I also replied several times I
did not see anything. I was begging them
that I did not see anything,
and then they started to assault me. So I understand you correctly
when you say they to be saying
that all three of them assaulted you?
-- Yes all three.
Yes you were assaulted continue.
COURT
:
How were you assaulted? -- Open hands, and fists, or clenched fists.
Where on your body? -- On the face.’
[95]
They
then
proceeded
to
the
Lichtenburg-Putfontein
T-junction.
When
they
got there, Mr Pakisi was
forced to drink the Captain Morgan alcohol. He testified in chief:
‘
Yes. -- Whilst I was
drinking it, it was burning me inside my lungs, so I then told them
that it is burning, and they said that
I should drink it, and they
proceeded to assault me.’
…
‘
This time how were they
assaulting you? -- They were assaulting me with open hands, clenched
fists, and kicking.
All of them? -- Accused 1 and 2
and then that other man was standing next to the van and looking at
the child, or looking after
the child.’
[96]
Neither of these
assaults, however, merited a mention in his statement.
When taxed in
cross-examination he stated:
‘
So from my understanding
all three of them attacked you? -- Yes.
You were taking blows from all
sides? -- Yes they were all assaulting me.
Yesterday you testified that all
these blows were directed towards your face? -- Yes they were
assaulting me on my face.
In total how many blows struck
your face? -- It was really dark to me because I was just standing
for all the assault and pain.
Will you say that it is more
than five? -- More than five.
Okay. And did you sustain any
injuries? -- On my mouth and eye was also swollen. Which eye was
that? -- The left eye.
Sir if I, if any person or
witness will come to this court and say that the third person at NWK
Silos never climbed out of the vehicle
will that person be telling a
lie? -- That person would be telling a lie.
Let me take you to your second
statement please the one for 22 May 2017. Paragraph 24. It reads as
follows:
“
On arrival at NWK behind
the storage tank they stopped. The driver and the big fat bearded guy
alighted from the van. All three
of them started communicating whilst
the third one was sitting inside the van.”
Then it proceeds to paragraph
25:
“
After some few minutes
they got back into the van and drove to the direction of Botshabelo.”
-- The third person did alight.
He alighted, they assaulted me together with accused 1 and 2 and
after assaulting me they then drove
away.
Did you realise that those
paragraphs I referred to where you on your own version referred to
the incident at NWK Silos there is
no mention of an assault
whatsoever. -- They assaulted me right there it is my fault or my
mistake that I did not mention it in
the statement but then otherwise
they did assault me there.
Apart from the negligence on
your part to mention the assault in your statement on your own
version you are telling a lie when you
say that the third person
never alighted from the vehicle.’
[97]
On 27 April 2017,
Mr Pakisi was interviewed by a journalist. The interview was
broadcast on television the next day. His account
of the assaults, in
the course of the interview, differed from both his statement and his
evidence in court. When asked about this,
he stated:
‘
Yes I mean the interview
with the news person when you went to the news people to the scene
and everything, the interview that we
are talking about can you
remember was that before you made your second statement on 22 May
last year? -- That had been a very
long time after I had spoken to
the television people.
Yes. Now you say in the
television interview that they started beating me up but the context
is that you are still there where they
caught you at the sunflower
field you are not yet at NWK? -- Yes they assaulted me there forcing
me to tell them what I saw, that
part also occurred there.
Yes. In your evidence-in-chief
you said that the first assault occurred at NWK not there at the
sunflower field. -- The incident
started at the sunflower and
proceeded to NWK and they kept on using their powers on me.
Why did you not tell the court
in your evidence-in-chief that you were assaulted at the sunflower
field already? -- I was assaulted,
being assaulted at sunflower as
well as at NWK is the same thing I just thought that the court will
take it that as the same thing,
it is one thing, it is the same thing
to be assaulted as I was assaulted at the sunflower and NWK.’
[98]
The appellants
were indicted on a raft of charges. None of these assaults were
included in the indictment. Mr Pakisi was simply
unable to explain
why he did not mention the assaults to Nkosi. In that regard he
testified:
‘
Yes because you said, oh
sorry. Because you have said or you have testified yesterday
that accused 1 and
accused 2 and the third person all three of them assaulted you there
in front of NWK
Silos.
-- Yes they assaulted me there I
will not deny that. Have you told Colonel Nkosi who took your
statement that accused 1 and 2 and
the third person assaulted you
there at NWK Silos? -- No I did not tell him because I was still
scared I explained about the occurrences
what has occurred and I was
still scared that maybe the same thing is going to repeat itself.
Sir you were already in witness
protection at that time? -- Yes I was under witness protection but I
was going to explain to the
court what has occurred, I was going to
tell the court everything that happened.
Sir at the time when you were
providing your second statement to Colonel Nkosi on 22 May 2017 you
were already in witness protection
there was nothing threatening you.
-- We knew that there was nothing that could happen to me because any
time is tea time nobody
knows.’
[99]
What detracts
quite significantly from Mr Pakisi’s credibility is that, when
Kgorame interviewed him, he only mentioned two
suspects – ‘the
one who was driving and the one he saw throwing the deceased out of
the motor vehicle’. That
as well, so it emerges from his
cross-examination, is what was contained in his first statement.
Later, the following emerges from
his evidence.
‘
Sir yes Brigadier Kgorane
informed this court that you were in a position to describe but he
said you particularly spoke about two
suspects and accordingly he
tasked Intelligence to trance two suspects. -- I described three
people with their stature in front
of him. And then after I described
those two they said the same people that I gave description of two of
them are at the police
station they handed themselves over where is
the third one? I then said I do not know.
So if Brigadier Kgorane said
that you only mentioned two suspects it is complete and absolute
untruth? -- I informed him that there
were three people, I explained
to him about three people he said he will have to do his duty in the
correct manner that third person
must be apprehended.’
[100]
Even accepting in
his favour that there were three perpetrators, as the following
excerpt from the record reveals, his evidence
in that regard is still
not without blemish:
‘
Sir can I ask you
something, am I correct to say that you informed Colonel Nkosi that
accused 1 before court you recognised him
as a family member of Mr
Fai who owns the garage, the petrol garage in Coligny am I correct?
-- That I realised that or I started
knowing that information when I
went to the police station to lay a charge and when they said I
should describe him I described
him and they confirmed yes it was
him.
Okay but you are certain that is
accused 1 before court today? -- Yes.
…
You also confirmed that accused
1 is the person whom you identified as the relative of Mr Fai? -- Yes
that is correct.
Can I please take you to
paragraph 27 of that statement dated 22 May 2017. My Lord there is a
copy that I have of the second and
third statement for the court’s
convenience, it is exactly the same as the one before the witness if
the court would like
to follow.
…
This is where you in your
statement describe what is happening there at the scene at the dam.
“
The white fat bearded guy
then instructed me to jump over a fence. I jumped the fence and the
white bearded male and the passenger
on the van followed me.”
-- The third one came when we
were already at the dam when I was already in the water when I was
pleading with them not to shoot
me and he came to warn them that they
should not shoot.
No sir that is not what your
statement is saying. Have a look at paragraph 30. At paragraph 30 you
say:
“
The other white guy who
was left behind at the van then came and asked the two guys not to
shoot me because there are people in
the veldt who might notice the
incident.”
Then on paragraph 31 you say:
“
I then realised that I
know this white guy he is the relative of Mr Fai who owns Henex
Garage having trucks, delivering petrol having
lots of businesses in
and around Coligny”.’
[101]
The trial court
did not engage with this aspect of his evidence at all. It contented
itself with the statement that: ‘there
was another man, a third
man … This third man is not an accused before court’.
Because Nkosi did not testify, there
was no evidence whatsoever as to
whether any investigation was undertaken to establish whether a third
person was indeed involved,
when during the course of the morning he
parted ways with the two appellants, his identity or what had
subsequently become of him.
If Mr Pakisi had conjured up a third
person that would detract significantly from his veracity as a
witness.
[102]
According to Mr
Pakisi’s second statement, he was driven to NWK, then to the
T-junction of the Lichtenburg/Putfontein Road,
then to the
Lichtenburg/Koster T-junction. They then stopped at the Henwill
Abattoir, from where he was instructed to run
up to the Doornhoek road
sign,
which
is about 12km
away. They
then travelled to the
Coligny road sign and then to Aubrey’s farm.
[103]
Before the
commencement of Kgorane’s cross-examination, an inspection
in
loco
was held at
Coligny on Monday 26 March 2016. According to Kgorane, the route
followed on this occasion differed from that travelled
with Mr Pakisi
on 24 April 2017. In that regard, Kgorane testified that ‘the
points that he pointed out to me is inconsistent
with his
explanations even before we left for the pointing out’. When
asked to account for this discrepancy, the evidence
of Mr Pakisi was:
‘
Sir I am putting it to
you that you are not telling the truth, you are changing your
version. Brigadier Kgorane came to court and
under oath said that the
route that you showed us to NWK Silos on that particular day of the
inspection-in-loco
is
not the route that you took him to NWK Silos you took him on a
different road. -- No it is not true we used the same route that
we
used when we were doing the
inspection-in-loco
.
So if Brigadier Kgorane says on
the day when you pointed the scenes and the route out to him on 24
April and he says you used a
different road to get to NWK Silo will
he be lying? -- Yes because they used their own route, I used the
route that I saw when
we were doing the
inspection-in-loco
that
is the route that is the one that we used, they used their own route.
So Brigadier Kgorane is not even
from Coligny he was travelling where you directed him to drive?
-- Which one is Kgorane again?
The Brigadier. -- To tell you
the truth Kgorane we used the same route that I used the time when I
was pointing out and even when
we went for an
inspection-in-loco
I
even used the same route again I have never used any other route.
Sir I put it to you that the
version of lying down and being pointed with a firearm the whole
route is a new story that you are
coming up today with. -- That is
your story that you bring to court I have told the court the truth
about the route that you have
used.’
[104]
Moreover, Mr
Pakisi’s pointing out to Kgorane did not include Henwill
Abattoir or the Koster/Lichtenburg road. Under cross-examination,
Mr
Pakisi testified:
‘
In your evidence-in-chief
that is the spot or the place, the location where you said that they
reversed park and then they were
firing shots at you as you were
ordered to run on that gravel road.
-- Yes I remember that
statement.
Now if I go through your
statements this incident is nowhere mentioned. – That is there
it appears and I did not even know
the place at the time but by
seeing it I could recognise it.
No sir let me tell you what you
wrote in your statement … You say:
“…
At the
T-junction of Lichtenburg and Koster we made a U-turn driving back.”
Can you see it, is that correct?
-- It is correct.
…
“
We reached Hanwell
Abattoir and stopped the van there.”
Is that also correct? -- No So
that one is a lie? -- Yes
It is a lie from the statement
that you signed after you have read it through? -- Yes.
…
…
[W]here would Colonel
Nkosi get this information of Hanwell Abattoir … ? -- I do not
know where did they get the Hanwell
part [from] … I disagree
with the Hanwell issue.
…
And what about the Koster,
Lichtenburg T-junction where the U-turn was made? -- On the road, on
that same road you find those boards
that are written Koster,
Lichtenburg but the Hanwell issue I still disagree with that but
maybe I mentioned those names Koster
because there are boards that
are indicating Koster.’
[105]
The importance of
this is that, ultimately, Mr Pakisi was driven to concede that the
events that he described in his second statement
at those places did
not occur at all. Significantly, his evidence in regard to the
places, to which he was taken, was also
shown
to be
objectively
impossible.
According to
the
Vodacom
employees,
who were called to
testify during the defence case, the two cell phones of the first
appellant and the one cell phone of the second
appellant were on the
day only within the radius of the Coligny cell phone tower. Some of
the places that Mr Pakasi was allegedly
taken to were far outside of
the reception area of the Coligny Tower. The distance travelled on Mr
Pakisi’s version was approximately
45 km. The time period spent
at these places, including him having to run 12 km, outside the
reception area of the Coligny Tower
would not have been possible.
This evidence conclusively refuted any possibility that Mr Pakisi
could have been driven to places
outside the tower reception area,
such as the Putfontein T-junction, the Coligny road sign, the
Lichtenburg/Koster Road and Doornhoek.
[106]
Over time Mr
Pakisi came to make repeated references in his evidence to the
employment of firearms. As emerges from the following
excerpt, his
evidence on this score was far from consistent:
‘
Okay. On that note please
go to paragraph 35 of that statement. It reads as follows:
“
By then he was still
sitting at the back of the van and he took out a rifle (a long
firearm) and instructed me to run again in front
of the van. I ran
again and he started shooting randomly around me while I am running.
-- It is true.
Now last week under oath you
told us that there were only two firearms you saw the day in question
that was used it was a handgun
used by accused 1 and a handgun used
by accused 2. -- Yes with the, in consideration with the firearms
there were firearms I could
not look back I was running looking or
facing forward and I was running, as I was running even the time when
I was seated and when
they called me back when I reached the van I
could see the firearm on top of the bonnet. So the version you gave
us last week that
the only two firearms that were used were the two
handguns that one is incorrect? -- That information or the testimony
is correct
but that firearm was also present it is only that I did
not explain before court.
No sir I pertinently asked you
are you sure it was only those two handguns and you said yes. -- Yes
I did not mention it but I was
running facing forward and I could
hear the sounds and the sounds of the firearms were also confusing me
as I was running, they
were also confusing me about the shooting so
that firearm was also present because I found it on the bonnet on
that day though
I did not mention, I only mentioned those two but
otherwise that is why I heard the sound of it as well and at the time
I was also
dizzy.’
[107]
The importance of
Mr Pakisi’s inconsistent evidence relating to the firearms
cannot be understated. The appellants were indicted
on charges of
unlawful possession of a firearm (count 5), unlawful possession of
ammunition (count 6) and pointing of a firearm
(count 7). They were
discharged at the end of the State’s case on counts 5 and 6.
According to the trial court, ‘[t]he
basis for their discharge
on these counts is that the State failed to prove that the accused
were unlawfully
in
possession of the firearms and ammunition they had’. They were,
however, convicted on count 7. From the rather cryptic
observation by
the court it is difficult to comprehend how they could have been
acquitted of the possession of a firearm charge
but convicted on the
pointing of a firearm. In that regard it appears that the judgment
suffers an internal contradiction.
[108]
These criticisms
of Mr Pakisi’s evidence represent but the tip of the iceberg.
Almost every facet of his evidence does not
survive scrutiny.
Nevertheless, Hendricks J was ‘satisfied that the evidence of
Mr Pakisi is honest, truthful and reliable
and must be accepted…’.
Even a superficial perusal of Mr Pakisi’s evidence demonstrates
that this finding cannot
be supported. I have quoted
in
extenso
from the
record to show that Mr Pakisi simply cannot be taken at his word. I
have also dwelt in far greater detail than is absolutely
necessary
on his evidence to
demonstrate that, on many of the aspects to which I have alluded,
there is no room for honest mistake and that
his evidence cannot be
true. This must mean that on the aspects mentioned, which are by no
means exhaustive, his evidence has been
deliberately fabricated. The
fact that Mr Pakisi was guilty of deliberate falsehood required the
high court to consider whether
he could be safely relied upon.
[30]
The high court did not embark upon that enquiry. Had it done so, it
may well have concluded that it could not. Instead, the high
court
appears to have been far too receptive to the prosecution case.
Consequently,
it far too readily
accepted
the
evidence of Mr
Pakisi. It lost from
sight that Mr Pakisi was
a single witness. Had it approached his evidence with the appropriate
measure of caution, it ought to have
concluded that his evidence fell
to be rejected.
[109]
When the
prosecution closed its case, both appellants applied to be discharged
in terms of
s
174
of the
C
PA.
Save for counts 5 and 6, the applications were refused. Why precisely
the applications for a discharge in respect of the remaining
charges
failed is not apparent. I have been at pains to show that Mr Pakisi
could not safely be relied upon. Thus, at the close
of the State case
there was simply no reliable evidence upon which to found a
conviction. As Nugent AJA observed in
S
v Lubaxa
:
[31]
‘
To place the accused on
his defence in those circumstances has usually been said to conflict
with the presumption of
innocence (which is a concomitant of the burden of proof: per
Kentridge J in
S v
Zuma and Others
[1995] ZACC 1
;
1995
(2) SA 642
(CC)
para 33), or to infringe the accused’s right of silence and his
freedom to refrain from testifying (eg
S
v Mathebula
1997 (1)
SACR 10
(W) at 35C; Schwikkard
Presumption
of Innocence
at 129;
Schmidt
Bewysreg
4
ed at 95).’
[110]
Nugent AJA added:
‘
I
have no doubt that an accused person (whether or not he is
represented) is entitled to be discharged at the close of the case
for the prosecution if there is no possibility of a conviction other
than if he enters the witness-box and incriminates himself.
The
failure to discharge an accused in those circumstances, if necessary
mero
motu,
is,
in my view, a breach of the rights that are guaranteed by the
Constitution and will ordinarily vitiate a conviction based
exclusively
upon his self-incriminatory evidence.
The right
to be discharged at that stage of the trial does not necessarily
arise, in my view, from considerations relating to the
burden of
proof (or its concomitant, the presumption of innocence) or the right
of silence or the right not to testify, but arguably
from a
consideration that is of more general application. Clearly a person
ought not to be prosecuted in the absence of a minimum
of evidence
upon which he might be convicted, merely in the expectation that at
some stage he might incriminate himself. That is
recognised by the
common-law principle that there should be “reasonable
and
probable”
cause
to
believe
that
the
accused
is
guilty
of
an
offence
before
a
prosecution is initiated (
Beckenstrater
v Rottcher and Theunissen
1955
(1) SA 129
(A) at 135C- E), and the constitutional protection
afforded to dignity and personal freedom (s 10 and s 12) seems to
reinforce
it. It ought to follow that if a prosecution is not to be
commenced without that minimum of evidence, so too should it cease
when
the evidence finally falls below that threshold. That will
pre-eminently be so where the prosecution has exhausted the evidence
and a conviction is no longer possible except by self-incrimination.
A fair trial, in my view, would at that stage be stopped,
for it
threatens thereafter to infringe other constitutional rights
protected by s 10 and s 12.’
[32]
[111]
Having
decided that a prosecution was warranted in this matter, it was not
the function of the prosecutor to seek a conviction at
any cost. As
it was put by Rand J, of the Supreme Court of Canada, in
Boucher
v The Queen
[1955]
SCR 16
at
23-4:
'It
cannot be over-emphasized that the purpose of a criminal prosecution
is not to obtain a conviction; it is to lay before a jury
what the
Crown considers to be credible evidence relevant to what is alleged
to be a crime. Counsel have a duty to see that all
available legal
proof of the facts is presented: it should be done firmly and pressed
to its legitimate strength but it must also
be done fairly. The role
of prosecutor excludes any notion of winning or losing; his function
is a matter of public duty than which
in civil life there can be none
charged with greater personal responsibility. It is to be efficiently
performed with an ingrained
sense of the dignity, the seriousness and
the justness of judicial proceedings.’
[33]
[112]
These
observations by Rand J are of particular importance to this matter,
because
by
the
time
that
the
appellants
came
to
testify
in
their
defence,
the
prosecutor appeared no longer to be pressing a case that placed
reliance on the evidence of Mr Pakisi. Instead, the prosecutor
focused a substantial part of his cross-examination on trying to
establish that the appellants had acted negligently in failing
to
take
precautionary measures to prevent the deceased from jumping off the
moving bakkie. But the case belatedly sought to be advanced
by the
prosecution, was itself fraught with difficulty.
[113]
By
that stage of the trial there were two broad theoretical hypotheses,
the one advanced by the prosecution that the deceased had
been thrown
of the bakkie and the other advanced by the appellants that the
deceased had jumped off the bakkie. The alternative
case sought to be
advanced in cross-examination of the appellants, lacked any proper
factual foundation. It had never been the
case for the prosecution
that the appellants had somehow made themselves guilty of a crime by
failing to take adequate steps to
prevent the deceased from jumping
off the bakkie. That was simply not the case that the appellants had
been called upon to answer.
Nor were the appellants called
upon
to answer a
case
that
mutated somewhat to
one
of
them
having
failed to secure the person of the deceased on the
bakkie.
[114]
What
the crimes of murder and culpable homicide have in common is a fatal
outcome for a human being. The difference in the two lies
in the
distinction between the two forms of
mens
rea
,
which are essential elements of the respective crimes of murder and
culpable homicide. For murder,
dolus
in
one or other of its manifestations (
directus,
eventualis, indeterminatus
,
etc) is the kind of
mens
rea
which
must have existed.
[115]
As
Marais JA explained in
S
v Naidoo and Others
2003
(1)
SACR
347
(SCA)
paras 28-29:
‘
The
crime of murder cannot be said to have been committed unless the act
or omission which caused death was intentionally committed
or omitted
and death was the desired result, or, if not the desired result, at
least actually foreseen as a possible result, the
risk of occurrence
of which the accused recklessly undertook and acquiesced in…
The crime
of culpable homicide, on the other hand (certainly as regards the
consequence (death) of the impugned act or omission)
postulates an
absence of
dolus
and
the presence of
culpa
.
The fact that the crime of culpable homicide may be committed even
where the act which causes death is an intentional act of assault
should not be allowed to obscure that essential truth. In such a case
the perpetrator is not convicted of culpable homicide simply
because
he or she deliberately assaulted a person as a consequence of which
it so happened that the person died. If the perpetrator
could not
reasonably have foreseen that death might ensue, a conviction of
culpable homicide cannot be justified.
Aliter
if
death should have been foreseen as a possible consequence. What this
shows is that it is the perpetrator's culpable failure to
foresee the
possibility of death in cases where an assault has resulted in death
and, in cases not involving an assault, that failure
coupled with a
further culpable failure, namely a failure to do what could and
should have been done to prevent the occurrence
of death, that is the
rationale for the conviction of culpable homicide.
Culpa
is
therefore always present in the crime of culpable homicide. Sometimes
it is also associated with
dolus
(as
in intentional assaults resulting in reasonably foreseeable but
actually unforeseen death). Sometimes it is not (as in negligent
conduct resulting in reasonably foreseeable death). For a penetrating
and instructive analysis of these matters see Professor Roger
Whiting's article "Negligence, Fault and Criminal Liability"
in
(1991)
108
SALJ
431.'
[116]
In this case, the
trier of fact is confronted with two destructive versions. Logic
dictates that both cannot be true.
[34]
If Mr Pakisi’s evidence is rejected as false,
as
it has to be, then any conviction would, of necessity, have to rest
solely on the defence case. In that event we would not be
dealing, on
appeal, with a case involving an assault. Therefore, as Marais JA
made plain in
Naidoo
,
to sustain a conviction of culpable homicide, the prosecution had to
establish a culpable failure on the part of the appellants
to foresee
the possibility of death coupled with a further
culpable
failure to do what could and should have been done to prevent the
occurrence of death.
[117]
The version of the
appellants was summarised in their plea explanations. Those
explanations were later confirmed by them in their
evidence.
According to the appellants, they saw the deceased and another person
stealing sunflowers. The other person fled. The
deceased was called
to the bakkie, driven by the first appellant. On his way to the
bakkie, the deceased’s tracksuit became
entangled in a fence.
The first appellant assisted him to untangle it. The deceased was
then told to get onto the back of the bakkie.
The deceased first sat
on the side frame at the back of the bakkie, but the first appellant
told him to move to the middle and
to sit with his back to the
driver’s compartment, which he did. The second appellant sat
with the first appellant in the
front cabin of the bakkie. The first
appellant initially drove slowly looking for the other person, who
they had also seen stealing
sunflowers. When that person could not be
found, they decided to take the deceased to the police station at
Coligny. They did so
with a view to opening a case of theft against
the deceased.
[118]
Whenever the first
appellant had previously encountered persons stealing from his
employer, he had on each occasion handed the suspects
over to the
police. He explained that it had always been the practice, since he
was a child, to take people who had stolen to the
police station and
it was for the police to sort matters out The police had never taken
issue with this, as they did not always
have a vehicle at their
disposal. It also helped establish cooperation between the farmers
and the police. In fact, theft was so
prevalent, that the first
appellant’s employer had secured the services
of
a
security
company
to
guard
the
crops,
and
every
time
a
suspect
was caught stealing, that
suspect was handed over to the first appellant, who then took that
person to the police station with the
stolen items. This was done, in
the hope that the police would do something about the matter.
[119]
Warrant Officer
Modisane corroborated the first appellant’s version in material
respects. In his evidence in chief he testified:
‘
Let me put it this way,
as Warrant Officer Modisane did you have any problem with the accused
having found people stealing, bringing
those people to the police
station and opening this dockets?
-- Personally I did not have a
problem with this arrangement of the farmers when they found people
who are now stealing their products
taking them and bringing them to
the police station.’ Modisane agreed that ‘citizens also
have to play the role in
the fight against
crime’.
[120]
Modisane further
testified:
‘
Now would you explain to
this honourable court how you knew the accused before this honourable
court. -- I remember that there were
two cases pertaining to mealie
crops. They came with some boys who were under age, that is coming to
the charge office. We then
went for the parents of this young boys.
We then issued them with summons, the J534.
During this two instances you
have just mentioned, did they open dockets against those small boys?
-- They opened cases against
the parents of the young boys.
When they opened this dockets,
did they bring the proof of the mealies they were saying this boys
had stolen? -- That is so, they
brought such mealies.
And now when they so came to the
police station on this two occasion, I assume that they had caught
the boys red handed and the
brought them to the police station? --
That is so, they caught them red handed.’
[121]
The first
appellant testified that in 2017 several cases were opened with the
police pertaining to people stealing crops. It was
put to Modisane
that the appellants had
opened
cases
for
crop
theft
under
references:
CAS
57/03/17;
CAS
11/03/17; CAS 24/03/17
and CAS 57/02/17 and that the cases were registered at the Coligny
Police Station by various police officials.
Although Modisane did not
have any knowledge of this, the prosecution armed with the specific
CAS references, did not seek to gainsay
the evidence of the
appellants.
[122]
On no previous
occasion had any suspect jumped off the bakkie and there had never
been a complaint of any sort by the suspects.
On each occasion police
dockets were opened. On this occasion, as they were travelling on the
gravel road to the police station,
the second appellant told the
first that the deceased had jumped off the back of the bakkie. The
first appellant turned the vehicle
around and stopped next to the
deceased, where he was lying on the gravel surface of the road. As
the appellants did not have the
necessary medical experience they
decided to drive to the police station to inform the police so that
arrangements could be made
for an ambulance to be contacted. As they
left they saw two people walking in the direction of the deceased.
They requested them
to remain with the deceased. One of them, Mr
Motleholwa, testified. He confirmed the version of the appellants. On
the way to the
police station, the appellants called Esme Oelofse,
who was an attorney and a friend. The first appellant made it clear
that he
did not contact her in her capacity as an attorney,
but
as
a
friend,
who he
believed could assist
in
getting
hold
of
an ambulance before they
got to the police station.
[123]
When asked why he
did not take the deceased to a nearby clinic, the first appellant
explained that he did not believe that it was
safe in the
circumstances to transport him to the clinic, having regard to the
deceased’s condition. He explained that the
clinic at Coligny
did not have its own ambulance and the closest ambulance was in
Lichtenburg. There is nothing to suggest that
the version of the
first appellant that it was better not to transport the seriously
injured deceased on the back of the bakkie,
was not
true or
reasonable
in the circumstances.
They
believed
that the
police would be able to
expedite arrangements for an ambulance to attend on the deceased.
There is no suggestion that they were
dilatory in attempting to
secure medical assistance for
the
deceased. On realising
that the
deceased
was injured, they
arranged for the deceased
to be watched and immediately set off to the police station. The
police station was 1.8 km away and the
traveling time was estimated
to be about two and a half minutes. Constable Kgabi agreed that it
was quicker and shorter to go to
the police station than the clinic,
which was about fifteen minutes away from the place of the incident.
[124]
At the police
station the appellants met Modisane. They first asked him to send an
ambulance to the deceased. Thereafter, they explained
to him that
they had arrested the deceased for stealing and on the way to the
police station the deceased had jumped off the bakkie.
According to
Modisane, the appellants were ‘bothered by the injuries
suffered by the deceased’ and appeared to be shocked.
He
believed them when they told him that the deceased jumped off the
back of the
bakkie.
[125]
It is so that the
second appellant stated that he assumed that the deceased had jumped
off the bakkie. That statement must be viewed
in its proper context.
They were travelling in a moving vehicle. When last he looked, the
deceased was seated against the cabin
in the middle of the back of
the bakkie. He next saw a puff of
dust out of
the
corner
of
his eye
in the
side mirror
of the
bakkie. Looking
over his
shoulder he observed that
the deceased was no longer at the back of the bakkie. Given where the
deceased had previously been seated
the assumption was a fair one in
the circumstances.
[126]
On the evidence of
the appellants, there is no suggestion that: (i) the speed at which
they travelled was excessive; (ii) their
conduct was dangerous or
reckless in the
circumstances;
(iii)
the
deceased was
being
thrown around
the
back
of
the
bakkie; (iv) lost his
balance while the bakkie was in motion or (iv) was flung out of or
catapulted from the bakkie. None of those,
it seems to me, are
logical conclusions that can be drawn from any of the established
facts. At best they constitute what may be
described as rather
speculative or conjectural hypotheses.
[127]
In reasoning by
inference there are two ‘cardinal rules of logic’ that
cannot be ignored:
‘
(1) The inference sought
to be drawn must be consistent with all the proved facts. If it is
not, the inference cannot be drawn.
(2) The proved facts should be
such that they exclude every reasonable inference from them save the
one sought to be drawn. If they
do not exclude other reasonable
inferences, then there must be a doubt whether the inference sought
to be drawn is correct.’
[35]
These
fundamental rules must survive in order to sustain a criminal
conviction in our law. In this case they do not. The only way
to
arrive at a conviction here would be to predicate one inference upon
another inference.
[128]
It
is
so
that
a
prosecutor
is
not
obliged
to
‘play
chess
against
him- or
herself’.
[36]
And, where an accused is represented, it is not the function of a
prosecutor to call evidence which is destructive of the State’s
case or which advances the case of the accused.
[37]
However, a prosecutor may nonetheless have a duty to disclose, in
certain circumstances, facts harmful to his or her own case.
This may
well have been
such
a matter. I have already alluded to Mr Pakisi’s purported
disavowal of his statement made to Seponkane. His explanation
was
that the latter had caused him to sign blank pages, indicating that
he would fill them in later. Mr Pakisi also testified that
when he
brought this to the attention of the prosecutor during consultation,
he was told that he should focus on his second statement.
[129]
Despite
the fact that Seponkane was on the list of State witnesses, he was
not called to testify by the prosecutor. According to
Mr Pakisi,
Seponkane had: (i) refused at first to take his statement; (ii)
called him a drunk and a crazy person; (iii) caused
him to sign blank
pages, when he took his statement; and (iv) did not call a forensic
expert to examine the blood, which he had
pointed out at the scene
where the deceased had allegedly been thrown into the sunflower
fields. Seponkane was in a position to
confirm or refute these
allegations. If Seponkane refuted these allegations, Mr Pakisi would
have been exposed as a liar.
[130]
Further,
although Kgorane alluded to Mr Pakisi’s first statement in
respect
of
the pointing out by the latter to him, counsel for the appellants was
not permitted to make use of the statement, as Seponkane
was not a
witness. Had Seponkane been called as a witness, his evidence would
have been relevant not just to Mr Pakisi’s
first statement, but
also his pointing out to Kgorane. It seems perfectly obvious that
Seponkane was not called as a witness by
the prosecutor because his
evidence would have detracted in a direct and substantial manner from
the evidence of Mr Pakisi. His
evidence would have called the lie to
Mr Pakisi’s evidence in many material respects. Plainly
therefore, he was not called
to protect Mr Pakisi from further
adverse criticism.
[131]
Counsel
for the appellants did indeed consult with Seponkane, after he was
made available to them by the prosecutor. It was then
intimated that
his evidence would be to the effect that he had correctly taken down
Mr Pakisi’s first statement, which he
thereafter
read back to him. However, it was subsequently
placed
on record that Seponkane refused to testify as he feared for his own
safety and the safety of his family in the light of
the violent
protests that accompanied this case in Coligny. Relying on Mr
Pakisi’s evidence, the high court criticised Seponkane,
finding
that his behaviour was ‘totally unacceptable and
unprofessional’. It reached this conclusion without affording
him an opportunity to be heard.
[132]
One
of the contentions advanced on behalf of the appellants is that the
high court had the power under s 186 of the CPA to subpoena
a witness
‘if the evidence of such witness appears to the court essential
to the just decision of the case’. Seponkane,
the contention
proceeded, was such a witness. It may well be that the failure by the
high court to call Seponkane as a witness
constituted a material
irregularity amounting to a failure of justice, but it is not
necessary to arrive at a firm finding in that
regard because that
aside, the appeal must still succeed.
[133]
Importantly,
any judgment must account for all of the evidence.
[38]
I
n
S
v Hadebe and Others
1998
(1) SACR 422
(SCA)
at 426E-H, citing with approval from
Moshephi
and Others v R
(1980-1984)
LAC 57
at
59F-H, Marais JA stated:
‘
The
breaking down of a body of evidence into its component parts is
obviously a useful aid to a proper understanding and evaluation
of
it. But, in doing so, one must guard against a tendency to focus too
intently upon the separate and individual part of what
is, after all,
a mosaic of proof. Doubts
about
one
aspect
of
the
evidence
led
in
a
trial
may
arise
when
that
aspect
is
viewed
in
isolation. Those doubts may be set at rest when it is evaluated again
together with all the other available evidence. That is
not to say
that a broad and indulgent approach is appropriate when evaluating
evidence. Far from it. There is no substitute for
a detailed and
critical examination of each and every component in a body of
evidence. But, once that has been done, it is necessary
to step back
a pace and consider the mosaic as a whole. If that is not done, one
may fail to see the wood for the trees.'
So
approached, the appellants were entitled to their acquittal.
Consequently, the appeal must succeed.
_____________________
V
M Ponnan
Judge
of Appeal
APPEARANCES
For
Appellants: B Roux SC (with him E Kromhout)
Instructed
by: Bosman & Bosman Attorneys, Lichtenburg Rosendorff & Reitz
Barry Attorneys, Bloemfontein
For
Respondent: M D Moeketsi
Instructed
by: The State Attorney, Mmabatho The State Attorney, Bloemfontein
[1]
Unreported: S v Doorewaard and Another NWM 22-02-2019 case no 33/17.
[2]
See Doorewaard and Another v S [2019] ZANWHC 25.
[3]
At paras 53-54 the following appears: ‘I then went home to
sleep. I spend the whole Friday at home and at about +- 17:00
my
cousin Pontsho arrived at home. She asked me to take him home at
Coligny town. We then went on foot to Coligny. On the way
I
explained to her about the incident but she couldn’t believe
me saying I have started with my jokes. I left Pontsho at
her home
in Coligny town and went back to sleep.
On Saturday the
22nd of April 2017 at about +- 4:30 in the morning I heard a knock
at the door. I went to open the door and when
I opened I was pushed
inside the house. I saw the very same white big beard guy and the
other white guy who was also present
during the incident. It is the
one who was driving the vehicle during the incident with tinted
beard. I could realized that during
the incident they demanded my
residential address of which I gave them and they also took my cell
phone during the incident.
They told me that I shouldn’t tell
anyone about the incident if I want to be alive. They then leave,
but I was alone at
home by then.’
[4]
S v Janse van Rensburg and Another
[2008] ZAWCHC 40
;
2009 (2) SACR
216
(C) para 8. See, further, National Employers Mutual General
Insurance Association v Gany
1931 AD 187
at 199; S v Saban en ‘n
Ander
1992 (1) SACR 199
(A) at 203H-204C; S v Van der Meyden
1999
(2) SA 79
(W) at 81D et seq, especially at 82C-E (‘The proper
test is that an accused is bound to be convicted if the evidence
establishes
his guilt beyond reasonable doubt, and the logical
corollary is that he must be acquitted if it is reasonably possible
that he
might be innocent. The process of reasoning which is
appropriate to the application of that test in any particular case
will
depend on the nature of the evidence which the court has before
it. 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’); and S v Trainor
2003 (1) SACR 35
(SCA) para 9.
[5]
S v Mkohle 1990 (1) SACR 95 (A).
[6]
Ibid at 98F-H, with reference to S v Oosthuizen
1982 (3) SA 571
(T)
at 576B-C.
[7]
Hendricks J states as follows in the judgment of the high court:
‘Allow me to
express also my disquiet about the manner in which the police at
Coligny handled the complaint of Mr Pakisi
and also investigated
this matter. Not only was the police officer unhelpful when Mr
Pakisi reported his complaint and told him
to go away otherwise he
would be locked up, but Mr Pakisi was also insulted, stating that he
was drunk. The actions of Warrant-Officer
Seponkane leave much to be
desired. He totally neglected to perform his duties at all, never
mind doing it diligently. He was
not of any assistance to Mr Pakisi.
The matter was reported on the same day of the incident, namely 20
April 2017. It took him
four days to take down a statement and to
even start his investigations. The manner in which he took down the
first statement
of Mr Pakisi, if one can call it taking down of a
statement at all, is totally unsatisfactory. Brigadier Kgorane had
to ask Warrant-Officer
Seponkane for the statement so that he can
read it. A lot of evidence either went missing or was not timeously
investigated or
gathered at all. The van was at the police station
when the incident was reported. It was not at all inspected or
impounded at
that stage. Neither were the details of the van taken
down for further investigations. The van was only taken five days
after
the incident, if it was at all the van that was used on the
day in question. The evidence, if this was indeed the van,
disappeared.
The scene was visited by Warrant-Officer Seponkane and
blood was still visible. No forensic evidence was obtained. It was
simply
left and on the following Tuesday Mr Pakisi was told by
Warrant-Officer Seponkane that he forgot to contact the forensic
personnel
of the South African Police Services. No investigations
were made as to whether the accused possessed firearms and
ammunition
lawfully. Mr Seponkane dismissed Mr Pakisi’s
complaint and even insulted him by saying that he is crazy. The
behaviour
of Warrant-Officer Seponkane was totally unacceptable and
unprofessional. Action should be taken against the police officers
who are implicated for the dereliction of their duties. This must be
brought to the attention of the relevant police authorities
to act.’
[8]
See R v Blom
1939 AD 188
, especially at 197-198.
[9]
See S V Hoctor Cooper’s Motor Law: Criminal Liability,
Administrative Adjudication & Medico-Legal Aspects 2 ed (2008)
at B10-2; Taute v S [2018] ZAECGHC 51;
2018 (2) SACR 263
(ECG) para
12 et seq; S v Mcelu
[1975] 2 All SA 314
(TkH);
1975 (2) SA 103
(Tk)
at 105H-106A; R v Dhlodlho
1968 (1) SA 315
(R) at 316B-317H.
[10]
R v Bellingham
1955 (2) SA 566
(A) at 569D-H; S v Sauls and Others
1981 (3) SA 172
(A) at 180E-H.
[11]
Section 208 of the Criminal Procedure Act 51 of 1977 (CPA) states
that ‘[a]n accused may be convicted of any offence on
the
single evidence of any competent witness’, whereas its
predecessor – s 256 of the 1955 Criminal Procedure Code
–
spoke of ‘the single evidence of any competent and credible
witness’ (italics my own). The witness is nevertheless
still
required to be credible. See S v Sauls
1981 (3) SA 172
at 180D-G.
See also the remarks of De Villiers JP in R v Mokoena 1932 OPD 79.
[12]
R v Sein
1925 AD 6.
[13]
S v Lubaxa 2001 (4) SA 1251 (SCA).
[14]
Ibid para 10. (Own emphasis.)
[15]
A Kruger ‘Conduct of proceedings’ in Hiemstra’s
Criminal Procedure 7 ed (RS 13 2020) at 77.
[16]
S v Lubaxa (above fn 5) para 21.
[17]
S v Steyn
2001 (1) SACR 25
(CC).
[18]
Ibid para 13.
[19]
Key v Attorney-General, Cape Provincial Division, and Another
[1996] ZACC 25
;
1996
(4) SA 187
(CC) para 13. (Citations omitted.)
[20]
Culpable homicide is, in terms of s 258(a) of the CPA, a competent
verdict on a charge of murder.
[21]
R v Meiring
1927 AD 41
at 46.
[22]
Cooper’s Motor Law, op cit fn 1, at C1-3.
[23]
See R v Sacco
1958 (2) SA 349
(N) at 352F-H (which was subsequently
endorsed by the Appellate Division). Also see W E Cooper Delictual
Liability in Motor Law
(1996) at 200.
[24]
In S v Martinus
1990 (2) SACR 568
(A) at 578F-G, it was held that
‘[t]he power conferred upon a private citizen to arrest
without a warrant should be exercised
sparingly and with great
circumspection’.
[25]
Translation my own.
[26]
Bramwell v S [2014] ZAECGHC 7.
[27]
S v Van Der Westhuizen
[2011] ZASCA 36
;
2011 (2) SACR 26
(SCA) para
11.
[28]
D W N Broughton ‘The South African Prosecutor in the Face of
Adverse Pre-Trial Publicity’ (2020) 23 PER/PELJ 1 at
11-12.
(Footnotes omitted.)
[29]
Ibid at 12-13.
[30]
S v Oosthuizen 1982 (3) SA 571 (T).
[31]
S v Lubaxa
2001 (4) SA 1251
(SCA);
[2002] 2 All SA 107
(A) para 14.
[32]
Ibid paras 18 and 19.
[33]
A passage referred to also in S v Shaik and Others
[2007] ZACC 19
,
2008 (1) SA 1
(CC) para 67.
[34]
S v Janse van Rensburg and Another
[2008] ZAWCHC 40
;
2009 (2) SACR
216
(C) para 8.
[35]
R v Blom
1939 AD 188
at 202-203.
[36]
Per Cloete JA, S v Van Der Westhuizen
[2011] ZASCA 36
;
2011 (2) SACR
26
(SCA) para 12.
[37]
Ibid.
[38]
S v Trainor
2003 (1) SACR 35
(SCA);
[2003] 1 All SA 435
(SCA) para
9.