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1994
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[1994] ZASCA 13
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S v Cloete (239/93) [1994] ZASCA 13; [1994] 4 All SA 151 (A) (17 March 1994)
Case No. 239/93
IN THE SUPREME COURT OF SOUTH AFRICA APPELLATE DIVISION
In the matter between:
S CLOETE
Appellant
and
THE STATE
Respondent
CORAM
: E M GROSSKOPF, EKSTEEN, NIENABER, JJA
HEARD
: 15 February 1994
DELIVERED
: 17 Maart 1994
J U D G M E N T E M GROSSKOPF, JA
2
The appellant, together with one Jansen ("the first accused") was charged
with murder and attempted robbery in the South-Eastern Cape
Local Division
sitting at Port Alfred. After a trial before Sutej J and assessors they were
found guilty as charged by a majority
of the court. One assessor dissented,
holding that the two accused should, on the murder charge, have been convicted
only as accessories
after the fact. The appellant was sentenced to 13 years'
imprisonment on the murder charge and four years' imprisonment on the charge
of
attempted robbery. The two sentences were ordered to run concurrently. With the
leave of the trial judge the appellant now appeals
against his conviction on the
murder count.
The State evidence was briefly as follows. Const Baatjies testified that on 6
December 1987 he was taken by an informant from the
old Seaview road in Port
Elizabeth to a point where he found the body of the deceased lying in the
3
bushes. To reach this point he had to walk along a footpath through the
bushes leading to some small-holdings where the deceased had
been living. He and
his informant followed this path for about 100 metres. There he saw signs of a
struggle on the ground and in
the vegetation. From this point Baatjies and the
informant left the footpath and had to traverse rough terrain for about another
100 metres before reaching the spot where the corpse was. There were signs that
something had been dragged through the bushes along
this stretch. The corpse of
the deceased was lying on its stomach. The lower part of the body was naked. The
deceased's hands and
feet were bound with strips of blue material. A piece of
the same material was tied tightly around the deceased's mouth. This blue
material was clearly obtained from the deceased's overall, which he had been
wearing on the day of his death. Baatjies had found
further pieces of the
overall while he was walking towards the spot where the body was found. Baatjies
expressed the view that one
person would not on his own have
4
been able to drag the deceased from the footpath to the point where the
corpse was found.
An autopsy was performed by Dr I Lang, the Senior District
Surgeon of Port Elizabeth. His main findings were that there had been bleeding
into the muscles of the neck and into the muscles of the pharynx, and that the
deceased had sustained a fracture of the right horn
of the hyoid bone. He
concluded that death had been caused by the application of a constricting force
to the neck. There was, however,
he considered, also a slight possibility that
the cause of death was suffocation caused by the cloth tied around the
deceased's mouth.
Dr Lang also found a number of linear abrasions which were
consistent with the deceased having been dragged along the ground before
his
death.
Gladys Ngabauena testified that on Friday 4 December 1987, in the morning,
she saw the deceased and several other persons, including
the appellant,
drinking near her home. They left at about one o'clock. The appellant and
5
the deceased returned later and drank some more. At about 3
o'clock they
left once again. At about 6 p m she visited a
local shop, where she again saw the appellant and the
deceased, this time
accompanied by the first accused. They
were walking in the direction of the
deceased's home.
This concluded the State evidence against
the
appellant. Further evidential material was
found, however,
in the appellant's explanation of his plea of not guilty in
terms of
sec 115
of the
Criminal Procedure Act, no 51 of 1977
("the Act"), and in evidence given by the first accused. The
statement in terms of
sec 115
reads as follows:
"1. Ek is 'n 33 jarige Kleurlingman en Beskuldigde No 2 in bogenoemde
saak.
2.
Op 4 Desember 1987 om
ongeveer 8 vm is ek na 'n drlnkplek (Shebeen) in Seaview, in die distrik Port
Elizabeth. Daar het ek die oorledene
ene Yali ontmoet. Ons het toe saam sit en
drink. Ons het Sherry en bier gemeng, gedrink. Ongeveer tussen 3 en 4 nm het ek
gesê
ek gaan loop en oorledene het gesê hy wil saam loop. Ons was
albei dronk en het geslinger.
3.
Ons het saam
gestap tot by 'n winkel, ongeveer 3km vanaf die laasgenoemde drinkplek. Ek en
die oorledene het weer 'n paar kartonne
bier
6
saam gedrink. Daarna het Beskuldigde 1 by ons aangesluit en saam met ons geloop.
Beskuldigde 1 het nie by die winkel saam met ons
gedrink nie. Hy was nugter.
4. Soos ons aangestap het, het Beskuldigde 1 my op 'n stadium teruggeroep. Hy
sê toe vir my 'n Bantoeman het gesê dat
oorledene bale geld het en
dat hy (beskuldigde 1) horn moet beroof. Beskuldigde 1 gryp toe die oorledene en
hy trek horn die bosse
in. Beskuldigde 1 het die oorledene toe begin wurg
totdat, soos dit vir my gelyk het, die oorledene flou was. Beskuldigde 1 haal
toe 'n OKAPI-mes uit en beveel my om die oorledene se oorpak uit te trek. Hy
sê as ek dit nie doen nie, gaan hy my steek. Ek
was dronk en bang. Ek kon,
as gevolg van my toestand, nie die oorledene se oorpak uittrek nie. Beskuldigde
1 sny toe die bene van
die oorpak af. Beskuldigde 1 beveel my toe om die
oorledene se bene vas te hou. Terwyl ek dit uit vrees vir Beskuldigde 1 gedoen
het, het Beskuldigde 1 eers die oorledene se bene en daarna sy arms met stukke
van die oorpak vasgebind. Beskuldigde 1 soek toe die
oorledene deur. Ek het nie
gesien of hy geld by die oorledene gekry het nie. Beskuldigde 1 het oorledene
toe gewurg en hom daarna
in die bosse ingesleep. Beskuldigde 1 kom toe terug en
sê as ek praat sal hy my keel af sny.
5. Beskuldigde 1 het tydens die voorval wreed gelyk en ek het geglo dat hy my
sou steek as ek nie gedoen het wat hy my beveel het
om te doen
nie."
7
The first accused's evidence was briefly to the following effect. On the
afternoon of Friday 4 December 1987 he visited the shop to
which Miss Ngabauena
referred in her evidence. There he found various people, including the
appellant, the deceased and Miss Ngabauena.
Miss Ngabauena told the appellant
that the deceased had a lot of money, and that the appellant and the first
accused should rob him.
The appellant conveyed this suggestion to the first
accused. The two of them therefore accompanied the deceased on his way home.
Some distance along the footpath they overpowered him, went through his pockets,
dragged him into the bushes and tied him up. It
is not necessary to consider
what exact acts were, according to the first accused, performed by each of the
assailants, since his
evidence on these matters was contradictory and
unreliable. For present purposes it suffices to say that the burden of his
version
was that there was a common purpose to rob the deceased and that both
parties willingly cooperated in performing the acts which led
8
to the death of the deceased.
The appellant closed his case without giving
evidence in his own defence or calling any witness.
The court a quo accepted
the evidence of Baatjies, Miss Ngabauena and Dr Lang - indeed, the evidence of
Dr Lang was undisputed. The
first accused, the court said, "net 'n bale treurige
indruk gelaat op die Hof as 'n getuie". Later, when considering the force of
the
case against the appellant, the court qualified its rejection of the first
accused's evidence as follows: "...
falsum in uno
beteken nie
falsum
in omnibus
nie en dit beteken ook nie dat 'n uiterste leuenaar kan miskien
nie ook 'n bietjie waarheid êrens praat nie". In convicting
the appellant
the court did not, however, rely to any extent on the evidence of the first
accused. The basis of its finding seems
to have been that the appellant's
reliance on coercion could not succeed because, on his own version as set out in
his explanation
of plea, he had sufficient opportunities to escape from the
first accused without taking
9
part in the attack on the deceased.
On appeal before us counsel for the
appellant contended that the following issues were raised by the appellant's
explanation of plea:
(a)
Whether he killed the
deceased;
(b)
Whether he formed a common
intent with the first accused in the commission of the
murder;
(c)
Whether he was under the influence
of liquor at the time of the commission of the
offence;
(d)
Whether he was threatened by the
first accused to assist in the attack on the deceased and to keep quiet about it
afterwards.
In respect of these issues, the argument
proceeded, the onus was on the State, and had not been discharged.
It is, of course, trite law that the onus to prove the guilt of the accused
rests on the State, and the incidence of the onus does
not change merely
because, in his explanation of plea, the accused specifically challenges an
10
element of the case which the State has to prove against him in order to
secure his conviction. In so far as the features set out
in paragraphs (a) to
(d) were relevant to the appellant's guilt, the onus consequently clearly was on
the State. The basic issue
therefore is whether the court a quo was correct in
holding that this onus had been discharged. In determining this issue an
important
question arises in the present case, viz, what the effect is of
statements contained in the appellant's explanation of plea. To this
question I
now turn.
The purpose of
section 115
of the Act is to enable an accused who has pleaded
not guilty to specify, either by way of a statement in terms of sub-section 1
or
by answering questions put in terms of sub-section 2, to what extent he admits
or denies the issues raised by the plea and, generally,
to indicate the basis of
his offence. In terms of sub-section 2 the accused may formally admit an
allegation which he does not wish
to place in issue by his plea of not
11
guilty, and such admission is then deemed to be an admission in terms of
sec
220
of the Act, i e, it is "sufficient proof" of the fact admitted. If no such
formal admission is made, a statement made in the course
of the explanation of
plea may have evidential value as an admission in the same way as one contained
in an extra-curial statement.
In what follows I shall refer to admissions which
have not been recorded as such in terms of
sec 115(2)
as informal admissions. An
informal admission is of course not necessarily sufficient proof of any fact,
and the accused is always
at liberty to lead evidence to refute, qualify or
weaken the effect of the admission. At the end of the case the court considers
the evidential value of the informal admission in the light of the evidence as a
whole. See
S v Sesetse en 'n Ander
1981 (3) SA 353
(A) at p 375G to 376C,
S v Mjoli and Another
1981 (3) SA 1233
(A) at p 1238 D to E;1243 D to F;
1247H to 1248B; S y
Daniels en 'n Ander
1983 (3) SA 275
(A) at p 300E-F;
S v Mabaso and Another
[1990] ZASCA 24
;
1990 (3) SA 185
(A) at p 2091. This aspect
12
of the matter presents no real problem.
Greater problems arise in assessing the effect to
be
given to exculpatory parts of an explanation of plea.
This matter also was
considered by this court in
Sesetse
's
case (
supra
) at p 374F,
where Wessels JA said the following:
"'n Beskuldigde kan hom nie in sy verdediging op sy verklaring beroep nie. M a
w, dit dien nie as bewysmateriaal in sy guns nie,
alhoewel dit moontlik in ander
opsigte tog van nut kan wees by beoordeling van die bewyskrag van getuienis wat
namens die Staat afgelê
is".
The exact ambit
of this dictum is, however, not entirely
clear. The basis of the judgment in
Sesetse
's case is that
statements in an explanation of plea are treated in the same
way as
extra-curial statements. An accused is not entitled to
lead evidence of exculpatory extra-curial statements made by
him, except to rebut a suggestion of recent fabrication (in
the circumstances a rather theoretical exception). Where an
explanation of plea is entirely exculpatory it will be before
the court, but, if the analogy with extra-curial statements
holds good, it will have no evidential value in favour of an
13
accused. Statements in terms of
section 115
are however,
seldom entirely
exculpatory. The purpose of the statement is
to define the issues raised by a
plea of not guilty, and,
since such a plea places all elements of the charge
in issue,
a definition of the issues normally involves admissions on
the
part of the accused. In practice most explanations
therefore consist of a
mixture of incriminating and
exculpatory statements as in the present case.
Can the court
then, in convicting the accused, rely on the
incriminating
parts while ignoring the exculpatory ones?
If the explanation of plea had been an extra-curial
statement, the answer would clearly have been in the
negative. In the
leading case of
R v Valachia and Another
1945 AD 826
at p 837 this court held
"...the rule is that when proof of an admission made by a party is admitted,
such party is entitled to have the whole statement put
before the Court and the
judicial officer or jury must take into consideration everything contained in
the statement relating to
the matter in issue.... Naturally, the fact that the
statement is not made under oath, and is not subject to cross-examination,
detracts
very much from the weight to be given to those
14
portions of the statement favourable to its author as compared with the weight
which would be given to them if he had made them under
oath, but he is entitled
to have them taken into consideration, to be accepted or rejected according to
the Court's view of their
cogency."
Valachia's
case has consistently
been followed in this Court.
See, for instance,
S v Felix and Another
1980 (4) SA 604
(A)
at 609H-610A;
S v Khoza
1982 (3) SA 1019
(A) at
1039A-B;
S v
Yelani
1989 (2) SA 43
(A) at 50 A-F and
S v
Nduli and Others
1993(2) SACR 501 (A) at 505 f-h.
Should the same principle be applied to
sec 115
statements? Although
Sesetse
's case, supra, was the only case
I could find in which this court dealt with the effect to be
given to exculpatory parts of a statement in terms of sec
115, this question has been considered in a number of
decisions of lower courts. I propose adverting to some of the
more important or typical ones. Many of them dealt with the
responsibility of a court to explain to an unrepresented
accused that a statement in terms of
sec 115
is no substitute
for evidence. In this context Jacobs JP said in
S v Dreyer
15
1978 (2) SA 182
(NC) at p 184B that an accused should be told "dat sy
pleitverduideliking by die aanvang van die verhoor geen bewyswaarde net nie
en
dat, indien hy wil hê dat die hof die inhoud van daardie verklaring
enigsins in sy guns in aanmerking moet neem, hy dit
onder eed as getuienis moet
aanbied". That an appropriate explanation should be given to an unrepresented
accused goes without saying.
However, as regards the content of such an
explanation, Jacobs JP provides no reasoning in support of the proposition that
a statement
in terms of
sec 115
can have no evidential value. In
S v
Mkhize
1978 (2) SA 249
(N) a full bench decision of the Natal Provincial
Division also held (at p 251B) that any exculpatory statement made by an accused
or any exculpatory answer to questions put to him in terms of
s 115
has no
evidential value. See also the passage at p 251G-H. The court apparently relied
inter alia
on the provisions of
sec 196
(3) of the Act which lays down
that an accused person is not allowed to make an unsworn statement and, if he
wishes to
16
give evidence, he can only do so on oath (at p 251B). I
consider the
merits of this argument later in this judgment.
A fuller discussion of the effect of an explanation
of plea is to be found in
S v Malebo en Andere
1979 (2) SA
636 (B). Hiemstra CJ, who delivered the judgment of the
court, dissented
in ringing terms from previous cases (and,
in particular,
S v Selane
1979 (1) SA 318
(T)) which had
suggested that statements is terms of
sec 115
could have no
evidential value. Such statements, he held, should be dealt
with on the same basis as any other statement made by an
accused concerning his guilt or innocence. The effect of such
a statement is summed up at p 642D- E as follows:
"...alles wat die beskuldigde in sy pleitverduideliking sê [is]
toelaatbaar ... teen horn, hoewel nie
vir
hom nie. Dit is die posisie in
die algemene bewysreg ten opsigte van verklarings wat die beskuldigde buite die
getuiebank doen. Daar
is net een manier waarop hy die pleitverduideliking wel in
sy guns kan gebruik, en dit is deur dit as 'n 'vroeëre gelykluidende
verklaring' aan te wend waar hy beskuldig word van 'n resente versinsel. Dit sal
in die praktyk waarskynlik alleen kan voorkom, waar
daar 'n redelike tydsverloop
was tussen die pleitverduideliking en die getuienis onder eed
17
waarin hy beskuldig word van 'n resente
versinsel."
Although Hiemstra CJ thus assimilated
the effect of a
sec 115
statement to that accorded to an extra-curial statement, he
made no
mention of the principle laid down in
S v Valachia
,
supra
. This is the more surprising since he seems to agree
(at p 640H) with the judgment in
S v Mogoregi
1978 (3) 5A 13
(0) in which the following passage is found (at p 14E-H):
"Die vraag ontstaan of 'n beskuldigde se verontskuldigende verklaring wat hy ter
verduideliking van sy pleit aanbied as bewysmateriaal
beskou kan word in gevalle
waar hy nie getuienis onder eed aflê
nie.
Hierdie verklaring word nie onder eed gedoen
nie en die inhoud daarvan kan dus nie as getuienis beskou word nie. Dit is egter
nie
die einde van die vraag nie want die felt dat dit nie die gewig van beedigde
getuienis dra nie beteken nie sender meer dat dit van
alle gewig ontbloot is
nie. Feit bly staan dat dit 'n verklaring van beskuldigde afkomstig en met
onbetwiste inhoud is wat voor die
hof geplaas word en deel van die notule
uitmaak. Sou 'n beskuldigde 'n verontskuldigende onbeedigde verklaring voor
aanvang van sy
verhoor buitegeregtelik maak dan sal die inhoud van hierdie
verklaring, wanneer dit deur 'n Staatsgetuie voor die hof geplaas word,
wel as
deel van die bewysmateriaal oorweeg moet word (
R v Valachia
1945
18
AD 826).
Kan dit nou gesê word dat die verontskuldigende verklaring wat
die pleit vergesel van alle bewyskrag ontdaan word net omdat
dit in die hof self
en direk aan die regterlike beampte gemaak word? Na my mening bestaan daar geen
regverdiging vir so 'n gevolgtrekking
nie en moet dit in die bepaalde
omstandighede ook as bewysmateriaal beskou
word."
Mogoregi
's case was followed in
s v
Hlokulu
1988 (1) SA 174
(C) at p 183C after a thorough review of the authorities by
Baker J.
The final case to which more than passing reference
is to be made is
S v Mothlaping en 'n Ander
1988 (3) SA 757
(NC). In that case a full bench of the Northern Cape division
considered the question whether an exculpatory statement made
in terms of
sec 115
can be used in favour of an accused who
failed to testify. The parts of the court's answer which are
relevant for present purposes (at p 762 B-E) read as
follows:
"(b) Die pleitverduideliking kan nie as
bewysmateriaal ten gunste van die beskuldigde aangewend word nie. Voor die
inwerkingtreding van die Strafproseswet 51 van 1977 kon
'n beskuldigde uit die
beskuldigdebank 'n onbeedigde verklaring aflê. Hy kon nie daarop
19
onder kruisverhoor geneem word nie. Dit was wel onbeedigde getuienis wat
bewyswaarde gehad net. Dit het natuurlik nooit die krag
van getuienis wat onder
eed deur 'n beskuldigde afgele is en waarop die beskuldigde onder kruisverhoor
geneem kon word, gehad nie.
Tans is daar met bedoelde onbeedigde verklarings
weggedoen en, as 'n beskuldigde wil getuig, moet hy dit onder eed in die
getuiebank
doen. (c) Die pleitverduideliking word dwarsdeur
die
saak ten gunste van die beskuldigde aangewend in die sin dat die verdediging wat
hy daarin openbaar deur die Staat bo alle redelike
twyfel ongegrond bewys moet
word. Indien aan die einde van die saak daar 'n twyfel bestaan of die
beskuldigde se verweer van noodweer
(of 'n
alibi
of welke verdediging hy
ookal opwerp) nie redelikerwys 'n werklikheid is nie, moet die beskuldigde die
voordeel van die twyfel ontvang,
want dan het die staat nie sy saak bo alle
redelike twyfel bewys nie."
It will
have been noted that the reason given for not accepting the exculpatory part of
a
sec 115
statement as evidential material, is that an accused is no longer
permitted to make an unsworn statement from the dock
(sec 196(3)
of the Act). It
will be recalled that the same point was made in
Mkhize's
case,
supra
. This seems, with respect, an entirely irrelevant consideration.
Sec 196(3)
reads:
"An accused may not make an unsworn statement at
20
his trial in lieu of evidence but shall, if he wishes to give evidence, do so on
oath or, as the case may be, by affirmation".
A
sec
115
statement is not "an unsworn statement... in lieu
of evidence". It is a
statement in explanation of a plea, and
is expressly permitted, and, indeed, encouraged, by the Act.
The only
question is what effect it has. And, although the
system of explaining pleas has been extended and formalised
in
sec 115
of the Act, it is not an entirely new procedure.
Sec 169(5) of the Criminal Procedure Act no 56 of 1955
provided:
"Together with his plea the accused may offer an explanation of his attitude
in relation to the charge, or a statement indicating
the basis of his defence,
and such explanation or statement shall be recorded and shall form a portion of
the record of the case".
A court was required to give proper regard to an exculpatory
statement in terms of sec 169(5) of the 1955 Act. See
S v Van
Niekerk
1972 (3) SA 711
(A) at p 723B and
Mogoregi's
case,
supra
, at p. 15D. That the prohibition on unsworn statements
by sec 196(3) has no bearing on sec 115 statements, is
21
supported by
Mogoregi
's case, supra, at p 15E;
Hlokulu
's case
at p 181C-H and authorities there quoted; Hoffmann & Zeffertt, The South
African Law of Evidence, Fourth Edition, 234;
and Du Toit and Others, Commentary
on the Criminal Procedure Act, p 18-13.
To sum up: it is clear that the
evidential value of informal admissions in sec 115 statements derives from the
ordinary common law
of evidence. That being so, there would appear to be no
reason of principle why the rule enunciated in
R v Valachia
,
supra
, should not be applicable also to such statements. The prohibition
in sec 196(3) of the Act on unsworn statements in lieu of evidence
has no
bearing on the matter. And I can think of no other reason why a court should be
entitled to have regard to the incriminating
parts of such a statement while
ignoring the exculpatory ones.
There is, of course, one practical difference between an extra-curial
statement and an explanation of plea. It is in general the prerogative
of the
State to decide
22
whether or not to lead evidence of an extra-curial statement by the accused.
If, on balance, the statement may weaken the State case,
the State may decide
not to introduce it into evidence. An explanation of plea is different. There it
is the accused who decides
what to say, and whatever he says is recorded. In
this way he may more readily place self-serving exculpatory material before the
court. This objection to the according of evidential value to a statement
pursuant to sec 115 was considered in
S v Malebo
, supra, at p 642H-643A
and regarded as invalid. I agree with this conclusion but, for reasons which
appear from what I have already
said, not entirely with Hiemstra CJ's reasons.
It seems to me that the true answer to this objection is that the legislature
has,
in sec 115, provided a procedure whereby material can be placed before the
court. It is true that an accused may try to abuse it,
but the court should
ensure that such an attempt does not succeed by refusing to attach any value to
statements which are purely
self-serving, and, generally, by determining
what
23
weight to accord to the statement as a whole and to its separate parts. It is
in this light, I consider, that the above quoted passage
from the judgment in
Sesetse
's case is to be understood.
Of course, even if an exculpatory
statement has no evidential weight, it may still serve its primary purpose of
indicating the line
of defence on which the accused relies. A court would
clearly have to bear the statement in mind for this purpose when evaluating
the
evidence before it.
In the light of the above discussion of the effect of sec 115 statements I
now turn to the various issues to be decided in this case,
as set out above. I
propose dealing first with issue (c), i e, the question of the appellant's
alleged intoxication. To some extent
this is a separate issue. The others, in my
view, merely form facets of the same question, namely whether the appellant
acted in
pursuance of a common purpose with the first accused to kill the
deceased.
24
Evidence about the state of the appellant's intoxication at various stages of
the day in question was given by Miss Ngabauena, whose
evidence, it will be
recalled, was accepted by the court a quo. During the morning, she said, the
appellant and his friends drank,
as far as she could see, only sorghum beer.
When the appellant left at about 1 p m , he was "net so 'n bietjie onder die
invloed
van drank". During the afternoon he drank more sorghum beer, and when he
left for the second time at approximately 3 p m, he was
"nie baie onder die
invloed van drank gewees nie". When she saw the appellant and the deceased later
that afternoon at the shop they
were "nog steeds onder die invloed van drank ...
maar nie sterk nie want as hulle sterk onder die invloed van drank is, dan maak
hulle altyd 'n lawaai of 'n geraas". This evidence was not challenged in
cross-examination. In so far as the appellant's explanation
of plea suggests a
greater degree of intoxication, it cannot, in my view, be accepted. The
exculpatory parts of an explanation of
plea obviously
25
cannot prevail over the unchallenged evidence of a reliable witness. It seems
clear, therefore, that the appellant's consumption of
alcohol on the day in
question could not have affected his capacity to form a common purpose with the
first accused to kill the deceased,
nor his ability to act in pursuance of such
a common purpose.
I turn now to the issue whether the appellant acted in a
common purpose with the first accused to kill the deceased. Even if no regard
is
had to the explanation of plea, certain facts are clear from the State case and
the unchallenged evidence of the first accused.
Thus it is common cause that, on
the day in question, the appellant accompanied the deceased and the first
accused on the path which
led to the deceased's home. When they set out the
appellant was not under any duress. The deceased was overpowered, dragged into
the bushes, strangled and tied up (not necessarily in this order). He was left
in a remote spot, unable to move or call out and seriously
injured if not dead.
The appellant was
26
present when these events happened and cooperated to some extent in causing
them to occur. It seems highly unlikely that he would
at no stage have been able
to escape if he had wanted to. After the event he did nothing to help the
deceased. During the two days
which elapsed before the body was found he did not
report the matter to the police. There is no suggestion that he was being
guarded
by the first accused during this period. From these facts the inference
may fairly be drawn that the appellant was a willing partner
in the attack on
the deceased. As far as intent is concerned, the further inference may be drawn
that the deceased's attackers had
the direct intent to kill him, but even if
there may be some doubt about this, they clearly realized that his death was a
possible,
indeed, a highly probable, result of their actions, but nevertheless
persisted in them.
In these circumstances there was, in my view, a strong
prima facie
case against the appellant. He attempted
27
to answer it by reference only to the exculpatory parts of the explanation of
plea. Not only was this version unsworn and untested
in cross-examination (as
such statements always are) but there are substantial weaknesses in it. As I
have already held, the appellant
seriously exaggerated the degree of his
intoxication. In the context this was clearly intended to provide a partial
explanation for
his submission to the alleged threats of the first accused. If
one accepts that he was not as drunk as he alleged, his own version
did not
explain why he made no attempt to escape from the scene. In the result it is
difficult to accept that he was coerced into
helping the first accused. Moreover
he gives no acceptable explanation for his failure to provide assistance to the
deceased after
he was oub of the first accused's presence, or to report the
matter to the police. In short, the explanation of plea was, in my view,
not
cogent enough to cast any doubt on the inference of guilt drawn from the
evidence. There was a sufficiently strong
prima faci
e case against the
appellant,
28
even after regard was had to the explanation of plea, to require some answer
from him. None was provided. In my view his guilt was
proved beyond reasonable
doubt.
In the result the appeal is dismissed.
E M GROSSKOPF, JA
EKSTEEN, JA ) NIENABER, JA ) Concur