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1994
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[1994] ZASCA 49
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S v Maharaj (736/92) [1994] ZASCA 49 (29 March 1994)
Case no 736/92
IN THE SUPREME COURT OF SOUTH AFRICA
(
APPELLATE DIVISION
)
In the matter between:
VINESH MAHARAJ
Appellant
AND
THE STATE
Respondent
Coram
: E M GROSSKOPF, EKSTEEN et HARMS, JJA
Heard
: 24 March 1994
Delivered
: 29 March 1994
JUDGMENT EKSTEEN
, JA :
The appellant was charged before a regional magistrate with murder. He was
convicted and sentenced to eight years imprisonment of
which three years were
conditionally suspended. His appeal to the Natal Provincial Division was
dismissed, as was his application
for leave to appeal to this Court. A petition
to the Chief Justice for leave to appeal against his conviction, brought in
terms of
section 316(6)
of the
Criminal Procedure Act 51 of 1977
, was however
granted.
The allegation in the charge sheet against the appellant was simply that on
or about
.... / 2
2
23 March 1991 he had unlawfully and intentionally killed one Arthur Naidoo.
When this charge was put to the appellant he admitted
having inflicted a
stabwound to Arthur Naidoo ("the deceased") which had caused his death, but
alleged that he had done so in self
defence. The onus was therefore on the State
to rebut this defence and to prove beyond a reasonable doubt that the
appellant's action
in killing the deceased was unlawful. (
S v Teixeira
1980 (3) SA 755
(A) at 764 F.) In an attempt to discharge this onus the
State called two witnesses viz Matthews Naidoo, a brother of the deceased,
and a
cousin of his called Shamogen Naidoo. Matthews told the court that on the night
of
.... / 3
3
23 March 1991 at about 11 o'clock he and the deceased were
driving down Bombay Road, Pietermaritzburg in a Mazda Rustler bakkie. The
deceased was the driver. On the way they came across one Trevor Naicker standing
in the middle of the street, apparently under the
influence of liquor. The
deceased stopped and asked Trevor what he was doing in the middle of the road.
Trevor reacted by throwing
a beer bottle at the van and kicking the right
fender. Trevor appeared to be with "a crowd of people" and so the deceased and
Matthews
felt it advisable to drive on to their home rather than to confront
Trevor there and then. Matthews said that he noticed the appellant
at the scene.
He was lying on the pavement without his
.... / 4
4
shirt on.
At home they asked Shamogen and two of his friends to come with
them in the van. They then drove back to the scene of their confrontation
to
look for Trevor. At first Matthews said that they just wanted to talk to Trevor
"and ask him what his problem was" but later he
conceded that their intention
was to "sort Trevor out" for damaging their van.
Driving down Sheba Road they came across Trevor and his "crowd" of friends.
The deceased drove up to them and spoke to Trevor about
his behaviour. This time
Trevor reacted by throwing a brick at the windscreen,
.... / 5
5
at which the deceased drove straight at the "crowd" of people knocking Trevor
down. The "crowd" "dispersed" and the deceased reversed
back to where the
injured Trevor was. Matthews first said that Trevor was "lying", but later that
he was "crouching", and eventually
that he was "sitting" at the side of the
road. They picked him up, put him on the back of the van, and drove off to a
nearby shopping
centre where they drafted a document for Trevor to sign
accepting liability for the damage done to the van and agreeing to pay
compensation.
While they were busy drawing up this document Matthews saw the
appellant come walking down the street towards them. The deceased
was, for
some
.... / 6
6
reason or other, not with the rest of them at the back of the
van but was standing in front of the van some 10 metres away from it.
Matthews
said that the deceased was investigating the damage to the vehicle. This
explanation that he should be investigating the
damage at a distance of 10
metres seems highly unlikely and most improbable. However Matthews went on to
say that when he first saw
the appellant he was some 20 metres from the
deceased. He then heard the deceased cry out, and when he looked up he saw the
appellant
some 10 metres away from the deceased. The deceased had been stabbed
in the head. Matthews did not see the actual stabbing. In cross-examination
Matthews
gave a different version of these events and
.... / 7
7
said that when he heard the deceased cry out he saw the appellant standing
right next to him. Deceased then ran away and Matthews
and his friends went to
the assistance of the deceased. They picked him up and took him to hospital.
Trevor was apparently so badly injured that they considered it desirable that
he, too, should be taken to hospital. With regard to
the injuries sustained by
Trevor the following passage in the cross-examination of Matthews would seem to
reflect a certain prevarication
and lack of candour on his part. He was being
cross-examined on the condition of Trevor after he had been knocked down by the
van,
.... / 8
8
and after the deceased had reversed back to him
when he was sitting or lying in the street.
"Was Trevor injured? - At that moment. At that moment he wasn't? - He wasn't
injured.
When was he injured then?- Well I don't know.
You don't know. I see. Did you ever offer to take Trevor to the hospital?
-Yes.
And what did Trevor say? - He will go to the hospital.
Did you take him? - Yes, yes that's how he got to the hospital."
If the injuries for which Trevor was
taken to hospital were not sustained by being
knocked down by the van, it tends to lend support
to Trevor's allegation that he was assaulted by
.... / 9
9
his captors and sustained injuries as a result of such assault.
At the end of Matthews' evidence, in further cross-examination, he conceded
that on his way to the hospital he stopped a police van,
that the police then
took them to the hospital, and that at the hospital he was arrested for "drunken
driving". At the police station
he was "taken down for a blood test" and then
formally charged with driving under the influence of liquor. He also conceded
that
earlier that evening he and the deceased had gone to a club where they
played pool and "had a couple of beers".
.... / 10
10
If therefore Matthews was under the influence of liquor that evening one may
assume that in all probability the deceased was too.
Neither the district
surgeon who presumably tested Matthews and took a blood sample, nor the
policeman who arrested him, was called
to depose to the degree of his
intoxication.
The other State witness, Shamogen Naidoo, also deposed to Matthews and the
deceased arriving that night at the place where he and
his two friends were, and
asking them to accompany them in the van. He says that he was not told where
they were going to or what
they intended doing. If one bears in
.... / 11
11
mind that this was after 11 p m and that both Matthews and the deceased were
intoxicated and so incensed at the damage done to their
van that they had made
up their minds to take Shamogen and his other two friends and to go back at once
to "sort Trevor out", it
seems most improbable that Shamogen should be so
completely ignorant of the mission on which he was being taken. It seems equally
improbable that, where Matthews and the deceased knew that Trevor had the
support of "a crowd" of friends, and that he was in an
aggressive mood, they
would have returned to the scene so soon afterwards to "sort (him) out" without
arming themselves in some way.
Yet
.... / 12
12
both Matthews and Shamogen deny that any of them were armed at
all.
When the deceased drove up to the
group of people in Sheba Road an
exchange of words
between Trevor and the deceased ensued. Trevor appeared to
be aggressive and threw a brick at the
windscreen of the van. His friends
then threw
"many more stones and ... things" at the van and
at the people
on the back of the van, whereupon
deceased drove through the "crowd""in order
to
disperse them". In the process Trevor was knocked down. The deceased then
reversed back to where Trevor was. All of them got out of
the van,
went up to Trevor, and began asking him why he
.... / 13
13
had damaged the van. Trevor was now completely cowed and agreed to pay for
the damage he had caused. He was then taken to the nearby
shopping centre to
sign a written undertaking to that effect. Shamogen too said that while the
document was being drafted at the
back of the van, and while the deceased was in
front of the van inspecting the damage, the appellant appeared on the scene,
walked
up to the deceased, and stabbed him in the head.
Shamogen denied any knowledge of either Matthews or deceased being
intoxicated. As to his own state of sobriety he denied being drunk
but conceded
that "maybe earlier on in the
.... / 14
14
day" he may have had something to drink - "maybe about 15h00
during that day I had a beer with some friends ... It was after work".
This
seems to be a somewhat equivocal and unconvincing denial.
The appellant and Trevor also gave evidence. The appellant said that on the
night in question he was walking down Bombay Road with
Trevor and two other
friends, when he was accosted by the deceased and Matthews in their van. They
swore at him and he swore back.
They then got out of the van and chased him, but
when they saw Trevor and his two friends coming to his aassist- ance, they got
back
into the van and drove off.
.... / 15
15
The four of them then turned into Sheba Road. There the deceased and his
friends again drove up to them and knocked Trevor down. He
tried to assist
Trevor but when the occupants of the van came running towards them, he ran away.
When he returned to the scene some
short while later he was told that Matthews
and the deceased had taken Trevor away. He went to look for them where they
lived, but
when he couldn't find them there, he went to the shops where he knew
they often "hung around". When he got there he was set upon
by the deceased and
his companions. He was severly beaten with sjamboks, knobkieries and bushknives.
Fortuitously
.... / 16
16
he noticed a knife lying on the ground. He snatched it up and lashed out
blindly at his attackers. Then he noticed a gap and ran away.
He was chased and
again set upon. This time the arrival of the police saved him from further harm.
By consent a medical certificate
was handed in detailing a cut wound across
appellant's forearm, several scratch abrasions, deep drag abrasions, a linear
abrasion
across his left flank and a laceration on the right occiput found by Or
De Maney on 25 March 1991 -i e a day or two after the events
referred to above.
Neither of the two State witnesses could offer any suggestion as to how
... / 17
17
the appellant came by these injuries. Trevor Naicker's evidence was
essentially to the same effect.
Neither the appellant nor Trevor Naicker was particularly good witnesses. It
is true that their evidence-in-chief was badly led at
the trial, but
nevertheless there is much justifiable criticism which may be levelled at their
evidence. The onus, however, as I
have indicated, rested throughout on the State
to prove the guilt of the appellant beyond a reasonable doubt. It was not
necessary
for the court to have believed the appellant, still less to have
believed his evidence in all its details.
.... / 18
18
but if that evidence could reasonably possibly
have been true, then it could not have been rejected and left out of account.
(
R v M
1946 A.A. 1023 at 1027.) The trial court was therefore called upon
in the first place to examine the evidence of the State witnesses
to see how
much reliance could be placed on it. In this respect the judgment of the
magistrate is not very helpful. All he says about
them is :
"The two State witnesses corroborated each other on material respects of the
entire sequence of events up to and including the fatal
stabbing of the
deceased. The court could find no inherent improbabilities in their
evidence."
This cursory treatment is not good
.... / 19
19
enough (see
Schoonwinkel v Swarts Trustee
1911 TPD 397
at 401;
S v
Singh
1975 (1) SA 227
(N) at p 228 and
S v Guess
1976 (4) SA 715
(A)
at p 718 E - 719 A). The magistrate is not correct when he says that the
witnesses "corroborated each other on material respects
of the entire sequence
of events". Shamogen was not a witness to the first confrontation between the
deceased and Matthews with Trevor
and the appellant in Bombay Road. He could
not, therefore, corroborate Matthews on this material link in the chain of
subsequent
events. There were also other aspects where the two witnesses did not
support each other such as Shamogen's allegation that "stones
.... and things"
were thrown at the
.... / 20
20
van just before Trevor was knocked down, and whether Trevor was injured as a
result of being knocked down or not. The magistrate,
therefore, misdirected
himself in this respect.
A more serious misdirection, however, was his finding that there were no
inherent improbabilities in their evidence. I have pointed
to several grave
improbabilities, which the magistrate had clearly not considered. Moreover, he
does not seem to have had any regard
to the probable intoxication of both
Matthews and the deceased, and the effect that this must have had on their
behaviour that night.
This aspect might well have been
.... / 21
21
elucidated had the State called the district surgeon who examined Matthews,
and the policeman who arrested him. The policemen who
arrested the appellant
would also, in all probability, have been able to give material evidence on
matters presently in dispute.
Having regard then to all the evidence before the trial court it seems to
have been common cause that the appellant was in Trevor
Naicker's company at the
first meeting with the deceased in Bombay Road. Matthews says he saw him lying
on the pavement near the
"crowd" of people. Nowhere in the evidence
is this "crowd" more closely circumscribed, and
.... / 22
22
it would seem to be reasonably possible that it merely consisted of Trevor,
appellant and his two friends. At this first confrontation
the deceased who was
probably intoxicated, was the driver of the van and was the one who berated
Trevor for standing in the middle
of the street. When discretion prompted the
deceased to strengthen his position by fetching reinforcements before pursuing
his confrontation
with Trevor and his friends, he returned to his home where he
knew that Shamogen and his two friends were waiting. Probably suitably
armed
this group immediately set off to find Trevor with
the set intention of compelling him to accept
.... / 23
23
liability to compensate them for the damage he had caused to the van. Again
the deceased was the leader. He drove up to Trevor where
he was standing with
his "crowd" of friends and started to confront him. When Trevor reacted
aggressively the deceased rode him down.
Appellant says he was present when this
happened, and that had he not jumped out of the way, he too would have been
knocked down.
Despite Matthews' and Shamogen's evidence that they did not see
the appellant on that occasion, appellant's evidence may reasonably
possibly be
true. When the deceased and his four companions then descended on Trevor
appellant ran away.
.... / 24
24
So much may reasonably be deduced from the evidence. The next crucial aspect
of the case, viz, the infliction of the fatal wound,
seems to be less clear.
Matthews' version of the deceased standing some 10 metres away from the van
apparently inspecting the damage
while the rest of them stood at the back of the
van extracting a written undertaking from Trevor, is in itself highly
improbable.
Not only is it improbable that he would have inspected the damage at
that distance, but also that he as the leader of the expedition
to capture
Trevor and compel his submission, should apparently lose interest in the
attainment of this goal at the very moment of
its realization.
.... / 25
25
Deceased knew the appellant and knew that he was a friend of Trevor's.
Matthews also knew that he was one of Trevor's friends that
evening. Yet when
Matthews saw appellant approaching he seems, on his evidence to have paid no
further attention to him at all. This
also seems improbable. In the light of all
these improbabilities there must be a doubt as to the reliability of Matthews'
description
of how the fatal wound was inflicted. There must be a certain
improbability in the allegation that the appellant simply walked up
to the
deceased and stabbed him in the head without any provocation and without the
deceased, who was himself in a somewhat aggressive
mood, doing
.... / 26
26
anything to defend himself. The appellant's evidence that the deceased and
his friends came to him and attacked him, may therefore,
reasonably possibly be
true. As I have said, it was not necessary to believe the appellant's evidence,
but it was necessary to believe
that the evidence of the State witnesses was
true beyond a reasonable doubt. The magistrate's failure to evaluate the
evidence of
the State witnesses properly, and his misdirections in this regard,
leave a doubt as to the true circumstances in which the deceased
sustained his
fatal injury. The
.... / 27
27
State has therefore failed to prove that the appellant's act was unlawful
The appeal is allowed.
J.P.G. EKSTEEN, JA
E.M. GROSSKOPF, JA )
concur
HARMS, JA )