S v Nair and Another (561/90) [1993] ZASCA 5 (19 February 1993)

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[1993] ZASCA 5
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S v Nair and Another (561/90) [1993] ZASCA 5 (19 February 1993)

IN
THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE
DIVISION)
In
the matter between:
SELVIN
GANISH NAIR …………………. FIRST APPELLANT
POOBLAN
NAYNIE GOVENDER ……………………….SECOND APPELLANT
and
THE
STATE ……………………….. RESPONDENT
CORAM: NESTADT, NIENABER
JJA et NICHOLAS AJA
DATE
HEARD: 10 NOVEMBER 1992
DATE
DELIVERED: 19 FEBRUARY 1993
JUDGMENT
NESTADT,
JA;
I agree with NICHOLAS AJA's
treatment of the first appe1lant's appeal. I am, however,
constrained to differ from my
Colleague's approach to the second
appellant’s appeal. In my opinion, it should be dismissed in
respect not only of count 1 but
also count 2.
The complainant's evidence was
that the first appellant did not strike the deceased. The trial court
did not prefer Manuel's evidence
to the contrary and there is no
warrant for us to do so. Accordingly, and in the absence of proof
that the first appellant was
a party to a common purpose, (with the
second appellant) to assault the deceased in this way, his guilt
depends on his conduct
in throwing the deceased into the bay, I agree
that it is a reasonable possibility that at this stage the deceased
was already
dead. This being so, the first appellant having acted
with the intention of killing the deceased and believing
him
to be still alive, is guilty of attempted murder (see S va
Ndlovu 1984(3) SA 23(A)).
As regards the second appellant,
however, the position is different. The fact that the complainant and
Manuel gave conflicting versions
as to precisely how and by whom the
deceased was assaulted before he was thrown into the bay does not
matter. According to the
complainant, it was the second appellant
alone who hit the deceased (with the iron pipe). According to Manuel,
the second appellant
participated in a joint attack on the deceased;
in particular he stabbed the deceased with a knife. It is unnecessary
to choose
which of these two versions is correct. On both, it is
clear that the second appellant assaulted the deceased. On the
evidence
of the complainant he rendered, him unconscious and, on the
supposition that the deceased was no longer alive when he was thrown

into the bay, caused his death. And having regard to the nature of
the attack, the only reasonable inference is that it was carried
out
with the intent to kill (at least in the form of dolus eventualis).
On the evidence of Manuel, the second appellant was obviously
a party
to a common purpose to seriously injure the deceased. Here too, the
necessary mens rea was present. The second appellant
must have
foreseen that the deceased might die as a result. On the hypothesis
that the deceased was dead when his body was disposed
of, this is
what happened. In either event, therefore, the second appellant was
guilty of murder. The same, of course, applies
if the deceased was
still alive when he was thrown into the water.
In
the result:
(1) The
appeal of the first appellant -
against his conviction and
sentence on count 1 is dismissed;
against his conviction and
sentence on count 2 is upheld. Such conviction and sentence are set
aside. He is instead convicted
of attempted murder and sentenced to
five years imprisonment of which three years is to run concurrently
with the sentence on
count 1. His effective sentence will therefore
be seven years imprisonment,
(2) The
appeal of the second appellant is dismissed.
NESTADT.
JA
NIENABER,
JA - CONCURS
NICHOLAS
A J A:
The appellants are Selvin Nair
and Pooblan Govender. They were indicted in the Durban and Coast
Local Division before a court composed
of SHEARER J and two
assessors on two counts: (1) attempted murder and (2) murder. They
pleaded not guilty but were found guilty
on both counts, and each
of them was sentenced to undergo concurrent terms of imprisonment of
5 years on count (1) and 12 years
on count (2) .
The events which gave rise to the
charges had their setting on the south pier of Durban harbour. This
is the haunt of fishermen.
It is a concrete structure, some 900 m
long, which forms the southern side of the harbour entrance. On the
seaward side it
is bounded by a massive wall on which there have been
painted at intervals of 30 m prominent vertical red and white stripes
and
a large white number. No 30, which is at the end of the pier, is
the highest number. The pier has no lights except for a green

flashing beacon at its end. The time was between 4 p m on 12 July and
the early hours of 13 JUly 1989.
The main characters were the
following; Gonasagren Soobramoney, (nicknamed "Sagren"),
the complainant referred to in
count (1) of the indictment. He was
29 years of age. He is a person apparently of low intelligence and
virtually no education -
he did not go beyond Std l at school;
Subramoney Mgonsamy, (nicknamed "Sonny"), his father. He
was about 50 years of
age and was the deceased referred to in count 2
of the indictment. Selvin Nair (nicknamed "Docks"), the
first accused;
Pooblan Govender (nicknamed "Lenzo"), the
second accused; Sagren Kistan (nicknamed "Jones"); Emanuel
Gianchand
(called "Manuel" for short); and Rajendra
Chetty (called "Rajen" for short). (All the aforegoing,
who
lived at Chatsworth, a suburb of Durban, were frequent fishermen
on the south pier. It will be convenient to refer to them for the

most part by their nicknames or short names).
In addition there were a number
of minor characters, including Dr Ganas Perumal, a medical
practioner; Lieut Harry, of the
South African Police; and other
members of the police force. Fishermen normally travelled by train
from Chatsworth to Clairwood
station and then changed to a train
which took them to Wests, a railway siding near the south pier. From
there they walked with
their fishing rods and tackle to the pier
which they mounted near No 9 and then proceeded to station themselves
at various positions
along the pier.
Sagren and Sonny arrived at about
4pm on 12 July 1989 and took up a position between Nos 15 and 16.
There Sonny proceeded to build
and light a fire, using coal which he
had brought with him, and made preparations to fish. Jones was a
member of group of fishermen
consisting of himself, Docks (the
first accused) Lenao (the second accused) and two other men named
Waheed and Bones, who
established a position between Nos 20 and 21.
They seem to have been a convivial group, drinking vodka on the
train, and continuing
to drink "Smirnoff" and Coca Cola
on the pier, and also smoking dagga. According to Jones, the
effect on some
of them was that "they weren't so interested in
fishing". Manuel took up his fishing station at No 17. Eajen
fished with
three friends at a place called Slopey Rocks, situated
between Nos 24 and 25.
The first stage of the events of
12/13 July took place near No 20 at about 10 a m. Sagren spoke in
his evidence of how he had
at one stage left his father and moved up
towards the end of the pier. The fishing there was poor and he
started to return.
When he reached a point between Nos 20 and 21,
he heard his named called by Jones, and went and sat down near
him.
Docks, who was standing nearby, made a remark to the
effect that Sagren had stolen his friend's fish. (This
apparently
related to an incident which had occurred on the previous
Friday night, when Sagren, his brother and his father had been
fishing
on the pier. At 4 a m on the following day, as they were
packing up to go home, "some guys passed a remark that the

fish was stolen". Nothing came of this incident at the
time). Lenzo, who was also there, told Sagren to put his
head
torch on. When he did not do so, Lenzo ran to his kitbag and
came back with a bush knife. Docks held Sagren by
his fishing
bucket (apparently a piece of equipment which is worn strapped
round the waist and carries a leather cup in which
the fishing rod is
rested), and Lenzo "chopped" him a number of times on the
head with the blunt side of the bush knife,
causing considerable
bleeding, while this was going on, neither Docks nor Lenzo said
anything. Sagren was screaming,
but none of the bystandei did
anything until Jones intervened and Sagren picked up h; fishing rod
and got away. He went and reported
to Sonny that Lenzo had "chopped"
him, while Docks had held him by his fishing bucket. Sonny went
to where Jones
was fishing and asked where Docks was. He was told
that he had gone to catch crayfish. Sagren told his father to forget
it, and
the two of them returned to their fire. There Sonny wiped the
blood from Sagren's head, gave him a cup of coffee and made him sit

by the fire.
Evidence in regard to this stage
of the events was also given by Jones - he said that he knew both
the accused. Docks, whom he
had known for about 10 years, lived in
the same street as he did in Chatsworth. He had known Lenzo for
one-and-a-half to two years
having frequently met on the pier. He
knew Sagren and his father : they lived in the same district in
Chatsworth as he did
while he was cutting some bait near No 2D, Jones
saw Sagren approaching him from the end of the pier. They greeted one
another
and Sagren sat down. Jones resumed fishing. He then heard
an "argument about some fish". (He understood that fish

had been stolen from one Hussain a few nights previously.). He turned
round and heard Sagren screaming. Docks was punching Sagren.
Lenzo
ran to his kitbag and took out a knife and started "slapping"
Sagren with the blunt side of it. Jones reeled in
his line and came
to intervene. Sagren was then on the ground and Docks was holding his
hands. Jones pulled them apart and Sagren
seized his chance to
escape. Jones said that he had been about 6 to 8 metres away from
where Docks and Lenzo were assaulting Sagren.
There were no lights
at that place. It was dark, "but the eyes get used to the
darkness".
After a time, when Jones had
resumed fishing, Sonny (who was followed by Sagren) came up to him
and asked where Docks was.
Jones told him that he had gone to catch
crayfish. Sonny asked, "How can they harm a useless chap like
Sagren ?' and
after some talk about fish being stolen, Sonny shook
his head and went away.
Eajen also gave evidence
regarding this stage of the events. He said that he did not know
Sagren but he had got to know Docks
and Lenzo from fishing at the
south pier. He had had no trouble with either of them. On Wednesday
12 July 1989 he was fishing
with three friends at Slopey Rocks,
situated between Nos 24 and 25. Another man (whom he later
identified as Sagren) arrived and
fished there for about an hour
without success, and then walked away back along the pier. A
little while later Rajen heard
screams. He took his line out of
the water and walked in that direction. He arrived at a place
called the "weigh block"
which is near No 20. He saw the
"boy" who had fished at Slopey Rocks in a sitting position.
Docks was holding his
hands from the front, and Lenzo was
"chopping" him on his head with a bush knife. A lot of
people stood watching.
The "boy" managed to get away ; he
picked up his fishing rod and ran. Lenzo said loudly that "anybody
else who
tries to steal our fish" would be dealt with.
The
second stage took, place some time later.
Jones told how Docks and Lenzo
left Ho 20 after the assault on Sagren. They came back some time
later. They went to Wests to
buy some beer, returned, and after
some time left again. Later, while Jones was fishing he heard a
scream coming from the
direction where Sagren and Sonny were
stationed. He saw a big fire where previously a small fire had been
burning. Bones
and Waheed left to investigate, but Jones
stayed where he was, in order to keep an eye on the fishing rods
and tackle. Sagren
said that some time after he and his father had
returned to No 15, Docks came up to him where he was sitting at
the fire.
He was unaccompanied. He asked him, apparently with
reference to what had taken place between his father and Jones,
how Sagren
could accuse him of holding on to his fishing bucket. He
kicked the burning coals of the fire in the direction of where Sagren
was sitting. Sonny then "got very, very mad ... very angry
and caught hold of Docks by the collar", and wanted
to hit
him with his fists. Lenzo then rushed up and hit sonny with an
iron pipe, which was about a metre long and 3/4 inch
in diameter.
He struck him on the legs, and Sonny fell to the ground and
screamed. Lenzo then left Sonny and attacked
Sagren with the
iron pipe, striking him on the shoulder, the body and on the
head, and fracturing his left arm and his
jaw. After that
Lenzo went back to the father once more hit him "all over the
body" with the iron pipe. Docks
was unarmed and did
nothing : he just stood on one side. Lenzo and Docks then went
away, back to the place where they had
been fishing, leaving
Sagren and Sonny lying on the ground.
After an interval Docks and Lenzo
returned. Sonny was then lying unconscious on the ground. They
picked him up, one holding
his arms and the other his legs, and
threw him into the bay. Then they got hold of Sagren, one holding him
by the left hand,
and the other by the right, and having dragged
him with his legs on the ground to the side of the pier (a distance
of about
two metres) they threw him into the bay also. He fell into
shallow water. Manuel, who was fishing at No 17, saw Sonny and
Sagren
at No 16. After a while he saw Sagren take a walk towards
the end of the pier and return after half an hour. Minutes later
he
saw father and son taking a walk in the direction in which Sagren had
previously gone. They returned, and Manuel noticed
the father
fishing at his own spot : it was then in the early hours of the
morning. Manuel saw Lenzo and Docks passing and going
to the father
and son. An argument started - "something about fish".
Manuel noticed Lenzo open his kitbag and take
out a bush knife and
start striking the father, while Docks was assaulting the father
all over his body with an iron pipe. Shouting
to his son to run,
the father fell to the ground. The son tried to run, but Lenzo and
Docks caught hold of him and assaulted
him, one with the bush
knife, and the other with the iron pipe, and he too fell to the
ground. Manuel
said
that he could see all this by the light of the fire. After that Ьепго
and Docks both took hold of the f
ather
and threw him into the bay. They did the same to the son, and
threw all their belongings into the fire. Lenzo and Dock
turned to go
back to their own fishing spot and, noticing Manuel, approached
him. Lenzo said that if Manuel told the police
anything, he would
do to Manuel what he had done to the father and son, while Docks
said that if Manuel should give information
to the police, he would
say that Manuel was in their company. In her argument on behalf of
the first accused, Ms Thomas subjected
the evidence of the
eye­witnesses to a detailed analysis which revealed a number of
conflicts and discrepancies. She said
that these were of a serious
nature and that because of them the trial court should have found
their evidence to be untruthful
or at the least unreliable. It is
true that there were many differences on matters of detail between
the eyewitnesses inter se.
But that does not mean that their evidence
was deliberately untruthful, or that it was necessarily unreliable
in regard to the
main outlines of the night's events. The conditions
prevailing at the time were such as to create a climate for the
proliferation
of honest error.
The night was dark and the
pier was unlit except for the green flashing beacon at the end of the
pier and the glow from Sonny's
fire. The events to which the
witnesses deposed covered several hours. There was evidence of
alcoholic consumption and the
smoking of dagga. Witnesses observed
events from varying distances and different positions. As SHEARER J
observed in the judgment
of the trial court, in the circumstances of
this case it would be surprising if there were not conflicts. So far
from supporting
any theory of deliberate fabrication and thus a
conspiracy between the eyewitnesses, the discrepancies point
rather to honest
and independent observation and recollection. A
conspiracy theory is in any event inherently unlikely. Jones, Manuel
and
Rajen were friends of the two accused and no reason was offered
why they should have conspired with Sagren to falsely implicate
them.
The
trial court made the following credibility findings in regard to the
eyewitnesses:
The complainant (Sagren)
appeared to be a person of limited intelligence, with virtually no
education. One must take into
account that he was seriously injured
in the events which have given rise to these charges. He appeared to
be genuinely shocked
as to the events of that night, and confusion
resulting from the nightmare events is understandable. Sagren Kistan
(Jones) gave
a confident account, his demeanour was impressive,
and he certainly gave the impression throughout his evidence that he
was
telling the truth. Emanuel Gianchand (Manuel) also made a good
impression. There is some suggestion that he participated in

the liquor that was consumed that evening, but that was denied by
him. Rajendra Chetty gave what appeared to be a responsible
and
coherent account of what he saw. Ultimately the decision of this case
falls within a limited area. It is not disputed that
Sonny and
Sagren ended up in the bay. A basic question relates to the identity
of the persons who were responsible. Another concerns
the assaults
which occurred during the second stage. Before I come to a
consideration of those matters, however, it is
песеззагу
to refer to the evidence given by the accused in their own
defence.
In
his evidence in chief the first accused said that he left Chatsworth
together with Jones, who was his neighbour. On the train
he saw other
people he knew :
Manuel, Rajen, Lenzo,
Bones and Waheed. He drank about half a nip of vodka on the train.
He left the train at Wests and
went along to the south pier to No 20.
On the way he saw Sonny at No 15. At No 20 he put down his kitbag and
his rods. There were
then present Jones, Manuel, Rajen, Lenzo,
Waheed and Bones. They drank vodka and beer and also smoked a pipe
of dagga. He saw
Sagren walking towards them from the direction of No
22. He knew Sagren very well and had known his father for over 20
years. There
was no trouble between himself and either of them. When
Sagren came near, the accused asked him how he could steal the
fish.
Sagren got angry and tried to grab the accused and to hit him.
The accused just pushed him, and Sagren fell to the ground. The

accused ran away and stayed at No 24 for some time. He then went
back to No 20 where Jones was standing fishing, and he himself
went
and sat fishing at a place between Nos 18 and 19. Sagren came from
behind and tried to kick him, and took out a knife from
his fishing
bucket. Before Sagren could strike him with the knife, the accused
stood up and hit him somewhere on the face with
the butt of his rod.
Sagren fell to the side of the pier. "Then when he tried to get
up, I don't know what really happened,
whether he tripped or whether
he felt dizzy, I know he was down. He went over the side, between
Nos 18 and 19". The
accused then got scared. He went and told
Jones what had happened. After that he slept next to the weigh block
at No 20 until the
next morning, when Jones "woke him up".
He said that after he saw Sonny when he arrived at the pier, he did
not see him
again.
SHEARER J said in the judgment of
the trial court that the first accused was a most unimpressive
witness. He was unconfident in
demeanour. He contradicted things put
in cross-examination to State witnesses on his instructions ; he
contradicted his own evidence-in-chief;
and in general he gave a very
poor impression.
The first accused's evidence
was inconsistent with what he told Lieut Harry on 17 July 1989 when
he accompanied him to make a
pointing out on the south pier. He
pointed out "the places where the man and his son were burning
the fire". (In his
evidence Lieut Harry said that the remains of
the fire were still to be seen). The accused
pointed out a second
spot: "the place where they assaulted them. He said that he held
them while the other person chopped them
with a bush knife". A
third spot he pointed out as "the spot where they made the man
and his son jump off into the water".
SHEARER J said that Lieut Harry
gave his evidence clearly and emphatically. He appeared to be a
responsible police officer, giving
an honest account of what had
happened in his presence.
I am satisfied that the evidence
given at the trial by the first accused cannot reasonably be true.
Apart from the criticisms by
SHEARER J, his evidence is inherently
improbable and carries no conviction. Len20 is not mentioned nor is
there any reference to
Sonny at the final stage when the first
accused says he saw Sagren go over the side of the pier. His story
does not fit at all
into the pattern disclosed by the evidence of the
witnesses for the State.
The second accused said in his
evidence that he went fishing on the south pier on the evening of 12
July 1939. He was in a group
consisting of Docks, Jones, Manuel,
Rajen, Rajen, Bones and Waheed. He drank two doubles of vodka on the
train. They got onto the
pier and stopped at No 20, where he had
another double of vodka and smoked from a dagga pipe. He picked up
his fishing bag and
his rod and went on towards No 24 to catch
crayfish. At about 9.30 to 10 p m he heard screams from the
directions of the bottom
of the pier, but did not take notice
because disturbances from drunks were frequent. He went home by train
the next morning.
He saw there the rest of the group: Docks, Jones,
Manuel, Rajen, Waheed and Bones. He saw Sonny on the pier that night
at No 15
when he passed there. He did not see Sagren. When it was
put to him that no less than four people had told the court that they

saw him involved in various scuffles with Sagren that night, he
said he was not involved, and said, "Perhaps they may be

mistaken with the identity ... because on the pier we all dress
alike".
Under cross-examination, he said
that he had known Docks for two to three years, Jones for about the
same time, Rajen for about
five years, and Manuel for about five
years. He had never had any trouble with any of them. He did not
know about the fish that
had been stolen. He was not aware of any
trouble that took place that night. Sagren must have been mistaken
with the identity.
As to Jones, perhaps he was also mistaken. He
could not remember whether there was a fire burning at No 20. Rajen
must be mistaken
about his identity, and also Manuel. He went
nowhere near the place where the deceased was fishing. The first time
he was told
about people being thrown into the bay was at the police
station after his arrest on the following Saturday.
Of the second accused as a
witness SHEARER J said that he was confident in demeanour, but
frequently took refuge in generalisation.
He was at one stage
emphatic that he had no beard on the night in question, then went on
to say that he was unable to say whether
he had ever had a beard,
but conceded the possibility that some beard may have been protruding
and visible on the night in question.
I do not think that there is any
possibility of mistaken identification in regard to the second
accused. He was well known to the
eyewitnesses, some of whom were his
friends. He was a member of the same group of fishermen as Jones.
Manuel said that the second
accused threatened him after Sagren and
Sonny had been thrown into the bay, and he also gave evidence that on
the following day
in Chatsworth the second accused came to his house
and said that Manuel must come to court and give evidence for him and
say "that
we were both fishing at the front of the pier".
And Rajen said in his evidence that he met Lenzo in Chatsworth after
the occurrence,
and Lenzo said that he must not "komba"
them (meaning, "get them into trouble").
In my opinion the trial court was
clearly right in rejecting the evidence of the two accused and
accepting in its main features
that of the eyewitnesses. There can be
no reasonable doubt that it was the two accused who, acting in
concert. threw Sagren and
Sonny into the bay.
It is necessary to return now to
Sagren, who in the aforegoing account of the night's events was left
lying in the water next to
the pier after he had been thrown into the
bay by the accused.
Sagren recounted how he got out
of the water. On the pier he met "a white man". This was Mr
Terence Rode who said in his
evidence that he was fishing near Wests
when he was approached by an Asiatic man who was very wet and
appeared to have been badly
assaulted. He appeared to be shocked. He
was bleeding from the mouth and one eye was closed; his feet were
bare and he was walking
in a bent position. He asked repeatedly that
Rode help him look for his father who was in the water. Rode took him
to a shunter's
cabin at Wests.
During that night Cst Van Zyl was
directed by radio to go to the shunter's cabin at Wests. There he
found a man lying on the floor.
He had been injured and was confused.
Van Zyl said that he had been informed by radio that there had been
a fight on the pier
and that a body had been thrown into the water.
He went to the scene between 3 and 4 am. He found no fire but he saw
bloodspots
"net langs die kaai, op die sement". Torches
were shone into the water which was four to five feet below. He did
not
see a body.
On
Tuesday 18 July 1989 a headless body was found lying among stones at
the foot of the south pier, near to the jetty of the
old whaling
station. It was taken to the mortuary, where,
notwithstanding the absence of the head, it was positively

identified as that of Subramoney Moonsamy by reason of its clothing
and a shortened index finger on the left hand.
Dr G Perumal conducted a post
mortem examination on the body. He described it as that of an adult
Asian male, the head of which
was missing. It was decomposing.
He found the atlas on the right side of the spinal column to have
been irregularly broken
off- The spinal cord above the first
cervical vertebra was missing. He was unable to find a specific
anatomical cause of death.
In his opinion the decapitation was
possibly caused by a blunt instrument, e.g. the propellor of a
passing boat.
The question then is whether on
the proved facts the accused were guilty on both counts as found by
the trial court.
There can in my opinion be no
doubt that when the accused threw first Sonny and then Sagren into
the bay they had the intention
to kill. It is clear that their
purpose in going to No 15 for the second time was to carry out a
cleaning-up operation and to
get rid of the victims.
The question was argued whether
the state had proved that Sonny was alive at the time when he was
thrown into the bay. It was
submitted that it was reasonably
possible that he was then already dead as a result of the injuries
which had been inflicted upon
him in the preceding assault.
The evidence of Dr Perumal was
that there were no injuries to the deceased's heart and pericardium
or to the pleura and lungs. He
said that he did not carry out tests
to exclude drowning as a cause of death, because of the decomposition
the body had undergone.
No one would be able to say from a post
mortem examination whether the deceased was alive when he went into
the water.
Sagren said in his evidence that
when the two accused came back for the final phase, "My
father was on the floor ... He
was completely unconscious."
Asked whether he was in a position to tell the court whether his
father was alive or dead when
he was thrown into the bay, he
answered, "I don't know whether my - my father, he made some -
he made a funny noise ...
Before they throw him into the bay. He was
- he was like moaning."
In his evidence Manuel said that
Docks struck Sonny "all over the body". He could not say
whether the father was or was
not dead because he could not see
movement or hear sound. The following is an extract from the record
of his evidence:
"You told the Court that
Lenzo, that is accused No 2, struck the father whilst Docks had
an iron pipe in his hand.
Do you remember telling us that ?
Yes. Now where did the blows land on the father,
the
deceased ? I do not understand your point.
I
beg yours ? I cannot understand your point.
SHEARER
J: where did he hit him, hit Sonny ? I could say all round.
All
over ? Yes.
Body
and head ? Yes.
MS
STEYN: And where did the blows land that Docks, that is accused No
1, struck ? Almost the same.
The
same ? That is all over the body ? Yes."
Before the assault Sonny was
alive. The question is whether he continued living until he was
thrown into the bay or whether death
supervened before that as a
result of the injuries inflicted upon him.
In phipson on Evidence, 24th ed,
it is said at p 360:
States of mind, persons, or
things at a given time may in some cases be proved by showing their
previous or subsequent existence
in the same state, there being a
probability that certain conditions and relationships continue. This
sort of inference is sometimes
called the presumption of continuance.
While it is preferable to characterise this as a presumption of fact
and not a presumption
of law (that is, a true presumption) it is more
sensible and more accurate to regard it as a type of ordinary
reasoning which applies
in circumstances of the utmost frequency and
diversity.
And at p 361:
The presumption from previous
existence has been held to apply to human life, it having been held
that, though there was no presumption
of law as to the continuance of
life, an inference of fact might legitimately be drawn that a person
alive and in health at a certain
time was alive a short time later.
(The emphasis is in the original text). The so-called presumption of
continuance was considered
by this court in Rex v Fourie &
Another
1937 AD 31
, in which DE VILLIERS JA said at p 42,
"It may now be taken that by
the law of England, though the point was formerly doubtful, it is now
settled that the well-known
presumption of continuance is one of fact
and not of law, and that it should therefore be applied in such a
sense by the Courts
of this country, too. It is therefore a mere
statement of probability, derived from the common experience of
mankind. Its scope
and intent is that from the existence of a state
of things at a given time, it may be inferred that that state
continued to exist
for a reasonable time thereafter, according to the
circumstances and the nature of the thing. A Court of law may
therefore draw
such an inference if it thinks proper, in any given
case, but it is not bound to do so. The rule of law is clear. "
In Van den Bergh v Parity
Insurance Co Ltd and Another
1966 (2) SA 621
(W) BEKKER J was not
prepared to find that a man, who had been thrown onto the road as
a result of a collision between two
motor cars, continued living
until he or his body was run over by a third car approaching at a
high speed- He said that the "presumption
of continuance"
did not apply in a case "where the proved facts show a sharp
interruption of the deceased's normal peaceful
existence". In
Van den Berghfs case there was expert evidence that the deceased
might have been dead when run over by the
second car.
In the present case there was
also a sharp interruption of Sonny's normal existence : after a
vicious assault he was left lying
unconscious on the ground. There
was here no evidence from an expert on the question whether Sonny
could have been dead or alive
when his body was committed to the
water, without such evidence, a court is not in a position to
reach a safe conclusion on
the matter. As a result, it must be
held that the prosecution did not discharge the onus of proving that
Sonny was alive at
the critical stage.
The question arises whether
either of the accused can be convicted of murder on the basis of the
preceding assault.
The only two witnesses to the
crucial events were Sagren and Manuel, and their versions of what
toolc place differed in material
respects. Sagren said that Docks
came there unaccompanied and kicked coals from the fire towards him,
whereupon Sonny caught hold
of Docks by the lapel of his jacket.
Lenzo then came on the scene and rushed at Sonny and struck him with
an iron pipe. Docks,
who was unarmed, did not participate in this
assault - he stood watching. Manuel said that Docks and Lenzo arrived
together and
both were armed, Docks with an iron pipe and Lenzo
with a bush knife. Both of them assaulted Sonny.
These accounts cannot be
reconciled with each other. They cannot both be true : at least one
of them must be false. Both the witnesses
made a good impression on
the trial court, and there is no basis for preferring the evidence of
one to that of the other. In consequence
it is impossible to make
findings that Docks was carrying a weapon or participated in the
assault in any way; or that Lenzo assaulted
sonny with an iron pipe,
or with a bush knife.
In my opinion it would not be a
legitimate approach to say that on either version Lenzo assaulted
Sonny with intent to kill him.
Implicit in that approach is an
assumption for which there is no logical justification, namely, that
one or other of the versions
is true. It cannot validly be inferred
from the proposition that P and Q cannot both be true that either P
or Q is true; both
may be false. (There is some discussion on
these matters, based on Wigmore on Evidence, in my judgment in S v
Oosthuizen 1982(3)
SA 571 (T) at 576 and in my article, "Credibility
of Witnesses,"
(1985) 102 SALJ 32
at 35-361.)
In my opinion therefore the
conviction of the accused can rest only on their proven conduct in
throwing Sonny into the bay, together
with recognition of the fact
that there was no proof that he was alive at the time. On that
basis they are guilty of attempted
murder. (cf. S v Ndlovu
1984 (3)
SA 15
(A).) Consequently the appeals against the convictions and
sentences on count 2 should be allowed in part. In regard to the
appeals against sentence, there is no ground for interfering with the
sentences of 5 years imprisonment in respect of count 1. In
respect
of count 2, the alteration of the verdict should bring with it a
different sentence.
I
would make the following order :
The appeals against the
convictions and sentences in respect of count 1 are dismissed,
The appeals against the
convictions in respect of count 2 are allowed. The convictions and
sentences are set aside and there
is substituted therefore the
following:
“
Each accused is guilty on
count 2 of attempted murder, and is sentenced to 5 years
imprisonment. The sentences on counts 1 and 2
are to run concurrently
to the extent that the effective sentence to be served is one of 7
years imprisonment."
HC NICHOLAS AJA