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[1992] ZASCA 208
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Magmoed v Janse Van Rensburg and Others (611/90) [1992] ZASCA 208; 1993 (1) SA 777 (AD); [1993] 4 All SA 175 (AD) ; [1993] 1 All SA 396 (A) (25 November 1992)
Case No 611/90
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE
DIVISION)
In the appeal of:
MARTIN STANLEY MAGMOED
APPELLANT
and
1.
PIETER JANSE VAN
RENSBURG
2.
CHRISTIAN
LOEDOLFF
3.
SALMON
PIENAAR
4.
DOUW GERBRAND PRINTS
VERMEULEN
5.
ANDRE
SWART
6.
JAMES
SAYER
7.
FRANK VAN
NIEKERK
8.
JACOBUS JOHANNES
BURGER
9.
ALBERTUS MYBURGH
SMIT
10.
ANDRE JOHAN
SMIT
11.
WILHELM KARL FRIEDERICH
PUCHERT
12.
ALEXANDER JACOBUS
ROSSEL
13.
PIETER MARIUS DU TOIT
RESPONDENTS
CORAM
: CORBETT CJ, BOTHA, F H
GROSSKOPF, JJA, NICHOLAS et KRIEGLER AJJA.
DATES OF HEARING
: 21, 22 and 23 September 1992.
DATE OF JUDGMENT
25 November 1992.
JUDGMENT
CORBETT
CJ:
The events with which this case is concerned
occurred in
Thornton Road, Athlone (a suburb of Cape
Town) at about 17h00 on 15 October
1985. It was a time
of serious civil unrest in the Athlone area,
and
elsewhere; and Thornton Road was one of the trouble
spots. In order to
deal with the situation authorities
concerned with unrest prevention and
control, viz the
South African Police, the South African Railway
Police
and the South African Defence Force, had established a
joint
operational centre at nearby Manenberg. At this
centre daily meetings were
held and operations were
planned. On the day in question it was decided at
such
a meeting to send a railway delivery truck to patrol
certain unrest
areas, including Thornton Road. On the
truck, which was driven by a sergeant
in the Railway
3
Police, were nine passengers, all members of either the
Police or the
Railway Police. In circumstances which I
shall later describe in greater
detail a shooting
incident occurred in Thornton Road. In the course of
this incident the passengers on the truck who were all
armed with shotguns, fired a number of shots in the
direction of persons gathered in groups in and near
Thornton Road. As a result of the shooting three
persons were killed and at least 15 wounded. One of the
persons killed was a 16-year-old youth, Shaun Magmoed
("the deceased").
The Attorney-General of the Cape having issued a certificate of nolle
prosequi, the father of the deceased, Martin Stanley Magmoed
("the appellant")
instituted a private prosecution in the Cape of Good Hope Provincial Division in
terms of which the ten policemen
on the truck at the time of the shooting
(fourth to thirteenth respondents inclusive) and three senior
4
officers alleged to be concerned with the planning of
this operation
(first, second and third respondents)
were indicted with murder,
alternatively culpable
homicide. The case was heard by Williamson J
and
assessors. After a protracted trial lasting over four
months, in which
none of the respondents was called to
give evidence, all the respondents were
acquitted on both
charges. |
Thereafter the appellant, being dissatisfied with the outcome of the trial,
made application in terms of
sec 319
of the
Criminal Procedure Act 51 of 1977
("the
Act") for
the reservation of certain questions of law for the
consideration of the Appellate Division. For reasons which have been reported
(see
Maqmoed v Janse Van Rensburg and Others
1990 (2) SACR 476
(C) )
Williamson J refused the application. The appellant then applied on petition in
terms of
sec 319(3)
, read with
sec 317(5)
of the
Act, to
this Court for an order
directing that the
5
questions of law be reserved. Acting under
sec
319(3)
,
read with
sec 317(5)
and
sec 316(8)
(d), this Court made
the
following order on the application:
"1. The application for the reservation of questions of law in terms of
section 319
, read with
section 317(5)
of Act 51 of 1977, is referred to the
Appellate Division for consideration in terms of sections 319(3), 317(5) and
316(8)(d) of the
said Act.
2.
In the event of the
application being granted in respect of any of the questions of law sought to be
reserved, counsel are requested
to be prepared forthwith to argue the appeal on
the question or questions of law reserved.
3.
A full record, as if on appeal, must be prepared and lodged for
hearing of argument on the application. The record must include the
present
petition with such annexures as do not in any event form part of the record on
appeal."
6
The matter now comes before us in
terms of this order.
Regard being had to the procedures involved, this Court is accordingly
required to decide in relation to each of the questions which
the appellant
seeks to have reserved as questions of law (1) whether there are good grounds
for granting the application to have
the question reserved as a question of law;
(2) assuming the answer to (1) to be in the affirmative, whether the question of
law
should be answered in favour of the appellant or not; and (3) in the event
of the question being answered in appellant's favour,
what relief the appellant
should be granted.
The petition asks for six questions of law to be reserved. Questions 1 and 2
deal with the correctness of rulings given by the trial
Judge on the
admissibility of certain evidence; questions 3 and 5 may be ignored since
appellant no longer seeks their reservation;
and questions 4 and 6 relate to the
merits of
7
the trial Court's decision to acquit the respondents. It will be
convenient to start a consideration of the application with question
4.
Before doing so, I should mention en passant that there was before us at the
hearing a petition by appellant for condonation of his
failure to lodge the
appeal record within the required time limit. The application was not opposed by
the respondents and was granted
at the inception of the hearing.
QUESTION 4
This question, as formulated in the petition
and as amended in a minor respect by appellant at the
hearing before us, reads as follows:
"Whether as a matter of law the trial court was correct in concluding on the
basis of its factual findings and the uncontroverted
evidence summarised in
Annexure "c" hereto that no unlawful common purpose on the part of any of
the
8
Accused was established beyond reasonable doubt
either
(a)
in the sense of an agreement prior to the vehicle leaving the joint
operational centre to carry out a punitive and illegal expedition
entailing acts
of assault, culpable homicide or murder; or in the absence of any prior
agreement
(b)
in the sense of acts of
association by the Accused present on the truck with the conduct of each other
in perpetrating acts of assault,
culpable homicide or
murder."
The facts as found by the trial Court and
the uncontroverted evidence, all of which is summarized in annexure "C" to the
stated case,
may be stated as follows:-
The railway delivery truck to which reference has already been made was
ordered to patrol the Athlone area, including Thornton Road,
in pursuance of a
decision taken at the joint operational centre by first, second and third
respondents. The truck was to all outward
9
appearances an ordinary railway delivery vehicle; but on the loading
platform there were three large wooden crates and crouching in
these crates,
hidden from view, were seven policemen armed with shotguns and
side-arms
(respondents nos 4, 5, 7, 8, 10, 12 and 13). Another policeman
(respondent no 11), similarly armed, was hiding under a short canopy
immediately
to the rear of the cab of the truck. The truck was being driven by a
policeman
(respondent no 9) and a policeman (respondent no 6) was sitting in the
passenger seat. Respondents 6 and 9 were both wearing khaki-coloured
dustcoats.
Respondent no 6 was also armed with a shotgun. Because outward
appearances concealed its real inwardness the truck was
likened to the wooden horse which in ancient times led to
the fall of Troy.
The shooting incident took place near the T-
junction formed where St Simons Road enters Thornton
Road. The latter road runs north/south. After
10
entering Thornton Road the truck
proceeded along Thornton
Road, past the T-junction, for some distance in
a
northerly direction. It then turned and came back.
When it again reached
the T-junction it was stoned by
members of a crowd estimated at between 50
and 200
persons. Thereupon the hitherto concealed policemen on
the back of
the truck stood up and commenced firing with
shotguns; as also did the
passenger in the front of the
truck. The shooting lasted some 17 seconds,
with the
consequences already described. What actually happened
at the
time of the shooting is portrayed on a video film
which was put in as an
exhibit at the trial. This film
was shot mainly by a cameraman employed by
CBS News, a Mr
C D N Everson; but it also contains an insertion of
film
taken from a different angle by another CBS cameraman, a
Mr W de Vos.
The trial Judge included in his judgment a
description of what appears on the
video film and this is
incorporated in annexure "c". The description reads
as
11
follows:
"An orange truck, of the type frequently used by the railways, is seen
proceeding down Thornton Road in a northerly direction at
a relatively low
speed. Wooden crates are visible on the rear of the truck. The truck resembles
an ordinary railway delivery vehicle
going about its usual business. This would
also have been the impression created to those who were present in the vicinity
at the
time the truck passed. No people are visible in the rear of the truck. As
the truck passes the three shops on the western side of
Thornton Road it has to
manoeuvre past a parked car on the left-hand side of the road in front of the
shops and it then moves back
into the left lane so as to avoid an approaching
motor car. There are no barricades, burning objects or other obstructions
visible
in Thornton Road. The approaching traffic appears to move freely. There
are furthermore no crowds of people visible in the vicinity.
There are a few
people visible on the stoep of the cafe and a few others behind the wall of a
house adjoining 102 Thornton Road.
The truck proceeds
past
12
the intersection with St Simons Road
without any incident.
The next sequence of footage shows the same truck
returning down Thornton Road, this time moving in a southerly direction. (We
know
from the Minute of the inspection in loco Exhibit 51 that the truck turned
around at Denchworth Close, approximately 800 metres away
from the intersection
of Thornton and St Simons Roads). This piece of footage is a continuous shot
with no edits or stoppages. The
entire incident from the time the first object
hits the windscreen to the last shots being fired is seen and heard.
At the time of the return of the truck a group of people, approximately 30
according to our estimate, are seen standing and milling
around at the corner of
St Simons and Thornton Roads. This group appears to comprise youths, some of
whom have stones in their hands.
Cars are seen moving freely past this group.
There is another group of people on the eastern side of Thornton Road, some
distance
away and to the north of the intersection with St Simons Road. The
truck is seen proceeding at a slow speed back down Thornton Road.
There is a
white car travelling immediately behind the truck.
13
There are two people visible in the cab of the truck, being the driver
and a passenger. No people are at this stage visible on the
rear of the truck.
Again, no barricades, burning objects or other obstructions are visible in
Thornton Road and the truck's passage
is unhindered.
Just as the truck enters the intersection of St Simons Road an object is seen
striking the bottom of the windscreen of the truck between
the driver and his
passenger. Thereafter other objects and stones are seen striking the windscreen
and body of the truck. The truck
moves to the right of the road before it comes
to a stop approximately in line with the southern corner of St Simons Road.
Prior
to it stopping people are seen standing up in the crates on the rear of
the truck. They are armed with shotguns and they commence
firing while the truck
is still moving. They do so 2½ seconds after the first object strikes the
vehicle. They do so without
identifying themselves to the crowd, without giving
the crowd any verbal warning or instruction and without firing any warning shot.
The first two people to appear are a person on the driver's side of the truck
dressed in a khaki
14
uniform and a person on the passenger side of the truck dressed in a
blue uniform. A third person, dressed in a similar khaki uniform,
then appears
on the driver's side of the truck. Thereafter other people are seen standing up.
All of them have shotguns and are seen
firing. It appears that in the case of
most of them careful aim is not being taken during the firing. The weapons are,
however, plainly
pointed at the crowd and are directed slightly downwards. A
shotgun is also seen protruding from between the crates about halfway
up the
height of the crates on the passenger side of the truck. The passenger in the
front of the truck is seen pointing his shotgun
out of the open window. The
driver of the truck, who had ducked down when the first stones were thrown,
although part of his body
is still visible, later sits up while the shooting
continues. The passenger is seen sitting up holding his shotgun.
The passenger opens the passenger door of the truck and gets out, still
holding his shotgun and is seen running down St Simons Road.
The passenger is
dressed in a brown dust jacket and appears to have a piece of white cloth tied
around his head. Two further
15
shots are fired after the passenger climbs out. Those on the back of the truck
remain standing, apparently no longer firing because
the guns are pointed
skywards. During the firing a small boy is seen sitting on his bicycle near the
truck.
As already noted, Everson established that the lapse of time from the first
stone striking the windscreen to the first shot being
fired was just over
2½ seconds. Thereafter the time lapse from the first shot until the last
shot is 14-2/3 seconds."
Save in one small respect,
which need not be elaborated, the trial Court accepted this
description.
Annexure "C" continues by stating that the deceased was killed
by shots fired by one or more of the respondents who were on the back
of the
truck, but that it is impossible to identify who fired the fatal shot or shots.
These shots were fired in a forwards and downwards
direction and at the time the
deceased was facing away from the direction of fire. A number of innocent
16
bystanders (i e persons not involved in stone-throwing) were shot and
the probabilities point strongly to the deceased having been
one of these. No
warning of any kind was given by the respondents prior to their opening fire.
All of the respondents who fired shots
(i e all those on the truck save the
driver) did so with shotguns. In all 39 rounds were fired. Six of the
respondents used AAA ammunition
and three used birdshot. AAA is a relatively
heavy shot and is so obviously dangerous to life that it is an irresistible
inference
that each and every one of the respondents subjectively knew of its
lethal potentiality.
I have hitherto presented the contents of annexure "C" in my own fashion
using the language of the document. The last nine paragraphs,
which consist
partly of comment on or inference from the evidence relating to the shooting, I
quote verbatim (the respondents being
referred to therein as "the accused"):
17
"18 Ordinary police methods of controlling the unrest at the time were
ineffective and the situation had got out of hand.
19 There is a substantial body of evidence
which points to the existence of
the
purpose of the operation being illegal,
namely, a punitive expedition.
There are
strong indications of a common purpose on
the part of the
Accused to act illegally.
20 There was an almost immediate and
concerted response to the stoning with
all
the Accused on the truck, save for the
driver, appearing with their
shotguns and
firing, on their own admission, at the
crowd. Immediately
upon the commencement
of the firing the crowd fled.
21 The
whole intent of the operation was so
obviously to present the would-be
stone
throwers with an apparent soft target that
the truck was likely to
be attacked.
22 It is so obvious that it must have been anticipated by all the Accused
that there
18
would be an armed response to an attack.
23 There exists a very high degree of probability that em armed response to any
attack was visualised and indeed intended by all
the Accused.
24 The response which took place was in its totality clearly excessive.
25 Shots were still fired when it was clear that the stoning had stopped and all
danger had been averted.
26 There appears to have been an indiscriminate firing into a crowd that must
inevitably have comprised amongst its numbers many
innocent
people."
These paragraphs are all based
upon statements made by Williamson J in the course of his judgment.
I turn now to that judgment and the trial Court's reasons for acquitting the
respondents. I think that they may be fairly summed up
as follows:
19
(1) As the respondents did not give evidence at the trial, the
only direct evidence indicating the purpose of the operation and the
reasons why
they opened fire is to be found in sworn statements made by them shortly after
the shooting. From these statements (which
were put in at the trial) it appeared
that the operation was planned in order to apprehend stone-throwers and other
instigators of
violence and unrest, particularly the ring; leaders; and that
they opened fire because they felt that their lives, and particularly
the lives
of the unprotected occupants of the cab, were in danger. (2) That this was one
of the objects of the operation seemed reasonable
enough, but the "burning
question" was whether it was the only purpose of the operation; or whether
there
20
was, as alleged by the prosecution, an additional, "more sinister" and illegal
purpose, namely that of a punitive expedition which
was to take the form of an
armed response to any attack upon the truck.
(3) Having regard to the unusual nature of the operation, the way it was carried
out, the fact that the response which took place
was in its totality "clearly
excessive" and the general circumstances, there was "a very (high) degree of
probability" that an armed
response in the nature of an illegal punitive action
was visualized and intended.
(4) On the other hand, it was clear that a vicious and murderous attack was
launched on the truck by the stone-throwers. Accordingly
an armed response
within limits was justified.
(5) If the respondents
had harboured a common
21
purpose to murder, one would have expected, with 39 shots fired, a greater loss
of life than in fact occurred.
(6) There was a "certain improbability" in high-ranking officers planning an
operation which to their knowledge was illegal.
(7) The excessive reaction of the respondents did not of itself establish beyond
a reasonable doubt that there was this illegal common
purpose.
(8) Due weight had to be given to the circumstance that none of the accused went
into the witness box to explain why they acted as
they
did.
On the basis of these
considerations the trial
Judge concluded:
"Although there are strong indications of a common purpose to act illegally
we are not satisfied that this has been proved with the
degree of certainty
which
22
the criminal law requires. There is a reasonable possibility that the operation
was planned and contemplated within legal limits
and that what in fact happened
was not the result of a common purpose to punish and deter, but was an
over-reaction to a manifestly
dangerous situation. Thus, although the
probabilities favoured the prosecution case, they do not do so with such a
strength that
we have a moral certainty that each and every accused shared a
prior common purpose to use excessive and unreasonable force. This
means that
the cornerstone of the prosecution case has not been proved and that the accused
are entitled to their acquittal."
The
fourth "question of law" which the appellant seeks to have reserved relates
essentially to the trial Court's finding as to an
unlawful common purpose,
either in the sense of an agreement, prior to the vehicle leaving the joint
operation centre, to carry out
an illegal punitive expedition entailing acts
of
23
assault, culpable homicide or murder or, in the absence
of such
prior agreement, in the sense of acts of
association by the respondents
present on the truck with
the conduct of each other in perpetrating acts of
assault, culpable
homicide or murder; and it asks the
question as to whether "as a matter of law" on the basis
of the facts set out in annexure "C" the trial Court was
correct in concluding that no such common purpose had
been established beyond a reasonable doubt.
In his judgment on the application to reserve
question 4 as a question of law Williamson J stated (see
reported judgment, 1990 (2) SACR at 479f):
"In essence this question is an attempt to frame, as a point of law,
something which is essentially a matter of fact."
Sec 319 does not permit of the reservation of a question which in reality is
a question of fact (see
S v Khoza en Andere
[1990] ZASCA 142
;
1991 (1) SA 793
(A), at 797
B; cf
Attorney-
24
General, Transvaal v Kader
[1991] ZASCA 135
;
1991 (4) SA 727
(A), at 739 D - 740 J); and the first matter to be decided is whether or not
question 4 genuinely raises a question of law.
In support of his contention
that it does Mr
Gauntlett
, on appellant's behalf, referred to the
well-known dictum of De Villiers CJ in
Queen v Judelman
(1893) 10 SC 12
,
at 15:
"Whether certain facts constitute a definite crime is a question of law."
Like many legal aphorisms this statement must be seen in its context and
requires some elaboration.
In
Judelman
's case, a jury trial, the appellant had been convicted of
theft. He appealed on the ground that, assuming the facts deposed to on
behalf
of the prosecution to be true, there was no evidence of theft on his part. It
was argued by the Crown that this was not such
a question of law as could be
reserved for consideration of the court of appeal. De Villiers CJ
25
disagreed with this contention, stating (at 15):
"It is evident that the question of the credibility of the witnesses for the
prosecution does not enter into the present inquiry.
Assuming their evidence to
be true, was the jury justified in convicting the prisoner of theft? If any
inferences could be legitimately
drawn from that evidence it was the province of
the jury to draw them."
Having considered the prosecution evidence, the learned Chief Justice
concluded that as it was impossible to say that there was "no
legal
justification" for the jury's inference that the appellant had stolen the goods
in question, the question reserved should be
answered in favour of the
Crown.
The dictum in
Judelman
's case,
supra
, to the effect that the
question whether certain facts constitute a definite crime is one of law, was
referred to by Feetham JA in
R v Patel
1944 AD 511.
In that case
26
an accused charged with the common law offence of
bribery had been acquitted by a magistrate. On an appeal by the Attorney-General
the Transvaal Provincial Division (Barry JP and Ramsbottom J) answered certain
questions of law set out in a case stated by the magistrate
in favour of the
Crown and referred the case back to the magistrate.
The accused appealed to this Court and his counsel raised the preliminary
point that the questions set out in the stated case were
questions of fact and
not law.
After quoting, with approval, the dictum in
Judelman
's
case Feetham JA said (at 518):
"The magistrate was seeking to apply the definition of the common law offence
of bribery as contained in
Gardiner and Lansdown
(4th ed., vol. 2, p.
985), which is quoted in full in the first of the two extracts from the judgment
of BARRY, J.P., given above.
That definition was accepted as correct in the case
of
Rex v. Muller
(1934, N.P.D. 140)
on which, as appears from the
reference made to it in
27
his statement of case, the magistrate relied. The first question of law stated
by the magistrate, read in its context, is a question
as to the correct
interpretation of that definition in its application to the facts of the case
with which the magistrate was dealing.
The statement of case shows that the
magistrate, in arriving at his decision to acquit the accused, adopted a narrow
interpretation
of the term 'official functions' used in the definition, and the
point raised by the first question is whether that narrow interpretation
was
correct."
In my view,
Judelman
's
case and
Patel
's case themselves indicate the proper ambit of the dictum.
It is a genuine question of law (a) whether the evidence against an accused
was
such that there was a case to go to the jury or that there were grounds upon
which the jury could legally convict the accused
of the crime charged; or (b)
whether the proven facts bring the
28
conduct of the accused within the ambit of the crime charged.
Category (a) above is more relevant to question 6 and I shall consider
it more
fully when I come to deal with that question. As the quotation from the judgment
of Feetham JA indicates, category (b) involves
an enquiry as to the essence and
scope of the crime charged by asking whether the proven facts in the particular
case constitute
the commission of the crime. This is clearly a question of law.
But, in my opinion, a question of law is not raised by asking whether
the
evidence establishes one or more of the factual ingredients of a particular
crime, where there is no doubt or dispute as to what
those ingredients are.
This distinction is, in my view, well illustrated by the case of
S v Petro
Louise Enterprises (Pty) Ltd and Others
1978 (1) SA 271
(T). There three
accused were charged with the contravention of sec 2(b) of the Prevention of
Corruption Act 6 of 1958. They
29
were acquitted by the magistrate on
the basis that the
State had failed to prove beyond a reasonable doubt
by
means of evidence admissible against them that they had
paid certain
sums of money to one B (in the words of sec
2(b) ) "as an inducement or
reward for doing.... or
having done.... any act in relation to his
principal's
affairs or business" (see at 277 H). The State
appealed
against the acquittal on a so-called question of law,
which was
whether on the undisputed facts the only
reasonable inference to be drawn was
that the accused
paid the amounts in question as an inducement or
reward
for doing or for having done any act in relation to his
principal's
affairs or business; and, accordingly,
whether they were guilty as charged.
The Court (Botha
and Van Dyk JJ) held that this was not a question of
law
and refused to entertain the appeal. In the course of
his judgment
Botha J distinguished, inter alia,
Patel
's
case, supra, as follows (at
279 B-C):
30
"Here there is no doubt, nor was there any doubt in the court a quo regarding
the elements of the offence with which accused Nos.
1, 2 and 3 had been charged,
nor is or was there any doubt as to the precise scope, nature or interpretation
of the elements of the
offence. The magistrate found that one of the elements of
the offence had not been proved, viz. that the accused had made the payments
to
Bosch as an inducement or reward for causing or having caused the payment of his
principal's investment funds to accused No. 1.
In the circumstances of this
case, this was a finding of fact, pure and
simple."
It was argued by counsel for
the State that the question
whether a given inference was the only
reasonable
inference to be drawn from certain facts, was a question
of law (see at 279 F) . In regard thereto Botha J said
(at 280 B-F):
"I am unable to accept counsel's widely-based and generalised
proposition
31
that in all cases the question whether a particular inference is the
only reasonable possible inference to be drawn from a given set
of facts is a
question of law. To accede to the proposition in such general terms would, I
consider, open the door to the possibility
of large numbers of appeals being
brought under sec. 104 of Act 32 of 1944, contrary to the limited scope of that
section which I
conceive the Legislature contemplated. One example of those
possibilities that were canvassed during the argument will suffice. Suppose
that
an accused is charged with an offence of which a specific intent is an element,
e.g., assault with the intent to do grievous
bodily harm. On the evidence, the
magistrate finds that such intent is not the only reasonable inference to be
drawn from the facts,
and consequently he convicts the accused of common
assault. I cannot for one moment imagine that the Attorney-General will have a
right of appeal upon the footing that an intent to do grievous bodily harm was
the only reasonable inference to be drawn from the
facts."
32
I am in full
and respectful agreement with this analysis.
Finally in regard to the
Petro Louise
case, I
should point out that Botha J made it clear (at 281 B-C)
that -
"The expression 'only reasonable inference' has been used in this judgment in
the context of the well-known rules relating to inferences
in criminal cases, as
enunciated in
Blom
's case supra. In that context, the expression is
unrelated to a totally different question that may arise in cases of this
nature,
viz. whether any reasonable Court could have arrived at the finding
reached by a magistrate. That question does not call for discussion
in the
present case."
Mr
Gauntlett
also submitted that questions of law are often formulated
on the basis of whether on the facts found in a particular case an accused
was
entitled to rely on a particular defence; and in this connection
33
he
quoted cases such as
S v Goliath
1972 (3) SA 1
(A),
which deals with
the questions whether and if so in what
circumstances compulsion can constitute a complete
defence to a charge of murder;
Ex parte Die Minister
van Justisie: In re S v Van Wyk
1967 (1) SA 488
(A),
which deals with the questions whether and if so in what
circumstances it is permissible to kill or injure another
in defence of property; and
R v Ndara
1955 (4) SA 182
(A), in which was investigated the scope of self defence
and was held (I quote the headnote) that -
"The mere fact that a person who has committed a crime for which he may be
arrested without a warrant is running away from the scene
of his crime pursued
by those who saw him do it, does not change him into a threatened innocent with
the right to use violence against
those who are trying to effect his
arrest."
I do not regard these cases as in any way detracting from what I have stated
above in regard to the
Judelman
34
dictum. They are all clearly cases where the facts raise questions of
law as to the validity and/or ambit of a particular defence
to a criminal
charge. That, on the other hand, the establishment of a defence such as
self-defence may raise a purely factual question
and not a legal one is
illustrated by the case of
S v Coetzee
1977 (4) SA 539
(A).
I turn now more specifically to the facts of this case. It was Mr
Gauntlett
's submission that just as the question as to whether certain
facts constitute a crime or a defence to a crime is a legal one, so
also is the
question as to whether the facts establish common purpose one of law. The
submission is in my view unsound. In discussing
it I shall refer only to the
first type of common purpose mentioned in sub-para (a) of question 4 inasmuch as
counsel conceded that
sub-para (b) postulated a most improbable state of
affairs.
Murder and culpable homicide have this in
35
common: each involves the unlawful causing of the death
of another
human being (the deceased). They differ in
that in the case of murder
intention in the form of one
or other of the three types of dolus (dolus
directus,
dolus indirectus or dolus eventualls) must be present to
the mind of the person executing the unlawful killing;
whereas in culpable
homicide all that is required is
negligence. But in both there must in fact be a causal
connection between the conduct of the accused
(intentional in the one case, negligent in the other) and
the death of the deceased; that is, unless it is a case
involving common purpose (see
s v Safatsa and Others
1988
(1) SA 868 (A);
S v Motaunq and Others
[1990] ZASCA 75
;
1990 (4) SA 485
(A) ).
A common purpose was described in Mqtaung's
case (at 509 A) as -
"... a purpose shared by two or more persons who act in concert towards the
accomplishment of a common aim."
36
Where the accomplishment of the common aim involves the commission of a
crime, then, depending on the circumstances, all parties to
the common purpose
who participated in the accomplishment of the common aim become criminally
liable irrespective of who amongst
them actually perpetrated the crime. This is
a legal consequence which the law attaches to participation in the common
purpose (see
Safatsa
's case, supra, at 896 D-E, 898 A). And, of course,
as in the present case, where a group of persons are alleged to be associated
in
the commission of a crime but it cannot be established which of them actually
perpetrated the crime, the prosecution must perforce
rely on the doctrine of
common purpose in order to fix anyone with criminal liability.
Common purpose arises most frequently in the cases of murder involving groups
of two or more perpetrators, but the doctrine is also
applicable in
37
cases of culpable homicide (see
S v Nkwenja en 'n Ander
1985 (2)
SA 560
(A) ). Where it appears that the accomplishment of the common aim
involved, either directly or indirectly, the unlawful killing of
another human
being and where it appears that a participant (A) knew this or foresaw it as a
possibility and yet persisted in his
participation reckless of the consequences,
then if an unlawful killing did ensue such a participant will be guilty of
murder irrespective
of the fact that another participant actually perpetrated
the murder and irrespective of the fact that there was no causal connection
between his (A's) own conduct and the death of the deceased. Similarly, where
the accomplishment of the common aim was not directed
at an unlawful killing and
the participants did not foresee this as a possible result of their
participation, but acted negligently
in the execution of their common aim and
death resulted, they will all be guilty of culpable
38
homicide,
irrespective of who inflicted the fatal injury and without need for a causal
connection in each case.
A common purpose may arise by prior agreement
between the participants or it may arise upon an impulse without prior
consultation
or agreement. As I have indicated, however, in this case we are
concerned with a question relating to the former type of common purpose.
It is
seldom that there is direct evidence of such an agreement. Usually the Court is
asked by the prosecution to infer it from the
proven facts. But the fact that in
a particular case the prosecution relies upon inference to prove the agreement
to accomplish a
common aim does not make the question as to whether the
prosecution succeeded in establishing this inference beyond a reasonable
doubt
one of law. As was often pointed out in the field of income tax appeals on a
question of law, facts may be classified as primary,
i e those facts which are
directly established by the
39
evidence, and secondary, i e those facts which are established by way
of inference from the primary facts (see
Willcox and Others v Commissioner
for Inland Revenue
1960 (4) SA 599
(A), at 602 A-B;
Secretary for Inland
Revenue v Geustyn, Forsyth & Joubert
1971 (3) SA 567
(A), 572 E-F). I
have no doubt that an inference drawn from proven facts that the accused had by
agreement formed a common purpose
which embraced, say, the possibility of an
unlawful killing is an inference of fact, and not one of law. It is a secondary
fact.
It is seldom in a case of murder that there is direct evidence of the
perpetrator's actual state of mind. Consequently whether the
unlawful killing
was accompanied by dolus in one of its forms on his part is normally a matter of
inference from the primary facts.
Clearly this is an inference of fact and any
question as to whether the trial Court correctly decided this issue is a
question of
fact. I can see no difference between this
40
and the issue,
also to be determined by inference, as to
whether a number of accused formed
a common purpose which
embraced both an unlawful killing and dolus in one of
its
forms. It is true that the legal consequences of a
common purpose may be said to fall within the sphere of a
rule of law, but in a case such as this the rule itself
and its scope are not in issue. What is in issue is the
factual foundation for the application of the rule.
That is a question of fact. And, I might add, it was so
regarded in
Safatsa
's case, supra, at 901 D.
In
Morrison v Commissioner for Inland Revenue
1950 (2) SA 449
(A), also an income tax appeal, Schreiner
JA drew a distinction between legal and factual
inferences. He said (at 455):
"Ordinary parlance does not limit the word 'facts' to what is provable by
direct evidence, but allows it to cover some of the conclusions
reached by
inference from what is directly provable. When a distinction is drawn, as it
sometimes is
41
between legal inferences and inferences of fact the distinction, I am disposed
to think, is between those inferences that appear
to be so general in their
nature as to be applicable to other cases, and those that appear to be special
to the case in question."
If this test
be applied to the present case, it is clear in my view that the existence or
non-existence of an agreed common purpose
was a matter of inference special to
the case in question.
For these reasons I conclude that Williamson J
correctly decided that question 4 could not competently be reserved as a
question of
law in terms of sec 319 of the Act. The application to have question
4 reserved as a point of law must accordingly be dismissed.
QUESTION 6
This question, as reformulated, reads
as
42
follows:
"Whether any reasonable court could have found on the basis of the factual
findings summarised in Annexure 'C' hereto and the uncontraverted
evidence that
none of the Accused was guilty of the offence of culpable homicide or
murder."
Williamson J held (see reported judgment 1990 (2) SACR at 480 b-c) that the
question related essentially to "a value judgment on the
facts" and that
consequently the application for its reservation had to be refused. He added
that even if the question was properly
to be regarded as one of law its
prospects of success were so remote that the reservation thereof would be an
"exercise in futility".
This question raises, in effect, an alternative ground of appeal to that
formulated under question 4. It accepts that the trial Court's
decision as to
the common purpose and, therefore, the guilt of the
43
respondents was a
decision of fact; but it raises, in
effect, as a question of law (so-called)
whether any
reasonable court could have acquitted the respondents.
The
first matter to be considered is whether such a
question may be raised in
terms of sec 319 of the Act.
This entails some investigation of the history of
statutory provisions enabling a question of law arising
in a criminal trial in a superior court to be reserved
for consideration by the court of appeal.
I commence with sec 372 of Act 31 of 1917,
which was the first Criminal Procedure and Evidence Act
passed after Union and which consolidated the provincial
laws in this field. Sec 372 of this Act provided as
follows:
"(1) If any question of law arises on the trial in a superior court of any
person for any offence that court may, of its own motion
or at the request
either of the prosecutor or of the accused, reserve that question for the
consideration of the court of
44
appeal.
(2) When the superior court reserves any such question and the accused is
convicted, the court shall state the question or questions
reserved and shall
direct such case to be specially entered in the record and a copy thereof to be
transmitted to the registrar of
the court of appeal.
(3) The grounds upon which any exception or objection to an indictment is taken
shall, for the purposes of this section, be deemed
to be a question of
law."
There are a number of important
points to be made with regard to this section and Act 31 of 1917 in general.
Firstly, in terms of Act 31 of 1917 the usual criminal procedure in a
superior court was trial by jury (see sec 165). Exceptions were
certain types of
cases ordered to be tried by a special criminal court (sec 215) and cases where
the accused wished to be tried without
a jury, in which event the Judge could
summon to his
45
assistance two assessors to sit with him and act "in an
advisory capacity" (sec 216).
Secondly, sec 372, relating to the reservation
of a question of law, and secs 370 and 371, relating to a special entry at the
instance
of the accused in respect of a procedural irregularity, were the only
provisions in terms of which an accused convicted in a superior
court could have
his conviction taken on appeal to the Appellate Division. A convicted accused
had no general right of appeal on
factual issues, even with leave. As far as the
prosecution was concerned, it was confined to the procedure provided by sec
372.
Thirdly, it was held in the case of
R v Herbst
1942 AD 434
that a
question of law could only be competently reserved at the instance of the
prosecution if the accused had been convicted of
the charge laid against him. It
could not be raised by the prosecution in the case of an acquittal since it was
never intended
46
that any question of law should be reserved unless such reservation was
made in favour of the accused (at 436). See also
R v Gani and Others
1957
(2) SA 212
(A), at 222 B;
R v Solomons
1959 (2) 352 (A), at 359 F.
Fourthly, in
R v Lakatula and Others
1919 AD 362
it was held that if
at the close of a trial by jury (resulting in a conviction) it was contended by
the accused that there was no
legal evidence upon which the jury were entitled
to have convicted, that was a point of law which might be reserved under sec
372.
Commenting on this decision and other cases where this rule has been
applied, Greenberg JA, in
R v Slabbert and Prinsloo
1945 AD 137
, at 144
et seq, pointed out that these were all cases where the evidence upon which the
accused were convicted was circumstantial
evidence and where the question
resolved itself into one whether the inference of guilt drawn by the jury (or
the Judge or Judge
and assessors) from the evidence adduced was one which
the
47
jury or its equivalent was entitled to draw. Greenberg
JA
went on to explain how it came about that a question
of this kind should be
considered a question of law:
"A question as to whether a particular
conelusion of fact
can properly be drawn
from a proved set of circumstances is one
in the
answering of which an utter
ignorance of law is no disqualification.
The
question whether the proved facts
justify the inference that the
accused
killed the deceased can be answered by a
person who has reasoning
powers but has
never seen the inside of a law book. It
is a question of
logic and not of law.
Wigmore (2nd ed., Vol. 5, para. 2,487)
says:
'But we come now to a peculiar set of rules which have their source in the
bipartite constitution of the common law tribunal. Apart
from the distinction
between Judge and jury these rules need have no existence,'
and he proceeds then to deal with the burden of producing evidence, firstly,
to satisfy the Judge and then to satisfy the jury.
48
It is as a result of this separation of functions (a separation which in the
Criminal Procedure Act of 1917 is enjoined by secs. 203
and 205) that the
question whether the jury were entitled to draw a conclusion of fact from a
proved set of circumstances came to
be regarded as a question of law
. That
it is so regarded under English law is clear from
Ryder v Wombwell
(L.R.
4 Exch. Cases, 32). WILLES, J., delivering the judgment of the Court, says (at
p, 38):
'But there is in every case a
preliminary question
which is one of law, viz., whether there is any evidence on which the jury could
properly find the question for
the party on whom the onus of proof lies'". (My
emphasis.)
Secs 203 and 205 of Act 31 of 1917 defined the respective duties and
functions of Judge and jury. Generally, it was provided that
the Judge was to
decide
49
all matters of law and the admissibility of
evidence and
that the jury was to decide all questions of fact and
to
return the verdict which on their view of the facts
ought, according to
the direction of the Judge, to be
returned. It was the function of the Judge
to decide, as
a matter of law, at the conclusion of the prosecution
case
whether there was legal evidence upon which the jury
could convict and, if
there was not, he could withdraw
the case from the jury and direct a verdict
of not guilty
(sec 221(3) ). If the Judge decided not to do so
because he
thought that there was sufficient evidence to
go to the jury, then at the end
of the trial (but not
before then) the accused, if convicted, could apply
for
reservation as a question of law the issue as to whether
in truth
there was no legal evidence upon which the jury
were entitled to convict.
(See
R v Lakatula
, supra, at
363-4.) In such a case the test to be
applied by the
court of appeal was -
50
" ... not whether this Court would have
drawn the inference which the jury drew,
but whether no reasonable man could have
drawn that
inference."
(per Tindall JA in
R v
Sikepe and Others
1946 AD 745
, at 751).
Fifthly, in
R v Slabbert and
Prinsloo
, supra, it was held that upon a question of law reserved under sec
372 as to whether there was evidence upon which the jury or the
Court was
entitled to convict the accused, it was not competent to take the point that the
jury or the Court should have accepted
the evidence of one witness in preference
to that of another: questions of credibility could not be raised (at 147, 150;
see also
R v Kubuse and Others
1945 AD 189
, at 197.) Greenberg JA pointed
out (at 150), however, that in an extreme case the rigours of this
interpretation could be mitigated
by resort to the extraordinary jurisdiction
described in R
51
v Kaloqeropoulos
1945 AD 38
in terms of which the
Appellate Division could grant special leave to appeal in order to prevent
"substantial and grave injustice".
In 1935, by sec 36 of the General Law
Amendment Act 46 of
1935, Act 31
of 1917 was amended by the introduction, as an
alternative to trial by jury, of trial by a Judge or Judge and assessors. Such
assessors
were to be members of the court, but, broadly speaking, the Judge
continued to be the sole arbiter of all questions of law, questions
of fact
being decided by the Judge and the assessors.
In 1948, by the Criminal Procedure Amendment Act 37 of 1948, a fundamental
change in the appellate procedures from the decision of
a superior court in a
criminal case was introduced, viz an accused convicted of an offence before such
a court was granted a full
right of appeal against his conviction, provided he
obtained leave to appeal either from the trial Judge or on
52
petition to the Chief Justice. As a result of this amendment the procedures
relating to a special entry and a point of law reserved
lost much of their
former importance as far as the accused was concerned since the new right of
appeal embraced factual, legal and
procedural matters. However, special entry
remained the appropriate remedy where the procedural irregularity or illegality
was not
apparent from the record. (See R
v Nzimande
1957 (3) SA 772
(A),
at 773 in fin - 774A; cf
Sefatsa and Others v Attorney-General, Transvaal and
Another
1989 (1) SA 821
(A), at 843 H-I.)
As far as the prosecution was concerned, however, the reservation of a
question of law remained the only avenue of approach to a court
of appeal. I
have previously drawn attention to
R v Herbst
, in which it was held that
the prosecution could not reserve a question of law in the event of an
acquittal. Act 37 of 1948 introduced
certain amendments to sec 372 and sec
374
53
of Act 31 of 1917 (sec 374 dealing with the powers of the Court of
appeal on a question of law reserved) which, in
the manner explained by Ogilvie Thompson JA in R v
Solomons
1959
(2) SA 352
(A), at 359 D-H, had the effect of enabling a question of law to be
reserved at the request of the prosecutor in the case of an acquittal;
and at
the same time of providing the machinery, and the only machinery, to be put into
operation by the Court of appeal where the
question was answered in favour of
the prosecutor (see also
R v Gani and Others
supra, at 222 B-D).
Another consequence of the amendments introduced by Act 37 of 1948 was the
disappearance of the extraordinary criminal jurisdiction
referred to in
R v
Kaloqeropoulos
, supra (
R v Milne and Erleigh
(6)
1951 (1) SA 1
(A),
at 6 A-D; Sefatsa's case, supra, at 833 G -834 F).
In 1955 a new Criminal Procedure Act 56 of 1955
54
was enacted. Sec 366 of this Act is in substance the same as sec 372 of Act
31 of 1917, as amended in 1948, and sec 369 in substance
re-enacts sec 374 of
the 1917 Act, as amended. In 1977 the 1955 Act was replaced by the current
Criminal Procedure Act 51 of 1977
, where the corresponding sections are 319 and
322. For present purposes there is no material difference between these sections
and
their predecessors.
It was submitted in the present matter on behalf of the appellant that just
as it was competent for the accused (in the days before
a full right of appeal
existed) to request the reservation, as one of law, of the question as to
whether there was legal evidence
upon which the jury or other trier of fact
could properly or reasonably have convicted, so also was it competent for the
prosecution
to request the reservation, as one of law, of the question as to
whether having regard to the weight of the evidence adduced the
jury or other
trier of
55.
fact could properly or reasonably have acquitted the accused. In other
words, what is sauce for the accused should be sauce for the
prosecutor.
Appellant's counsel were not able to refer us to any case where
such a question of law had been reserved at the instance of the prosecution;
nor, so far as I am aware, has the issue as to whether such a reservation is
competent ever been decided by the courts of this country.
The lack of any such
precedent in the 70 or so years since
Lakatula
's case, supra, was decided
is in itself a factor of some significance. But there are, in my opinion, more
weighty reasons why counsel's
submission cannot prevail.
As Greenberg JA made clear in the case of
R v Slabbert and Prinsloo
,
supra (see the passage which I have quoted above), the question as to whether a
jury could properly or reasonably have inferred
the guilt of the accused from
the evidence adduced is not inherently a
56
question of law, but it came to be treated as such by reason of the
separation of functions between Judge and jury (questions of law
being decided
by the Judge and questions of fact by the jury) and the function of the Judge to
decide whether there is any evidence
upon which a jury could properly convict
the accused. The further question as to whether, having regard to the evidence
and the directions
of the Judge, the verdict should be guilty or not guilty was
always a function of the jury (see
sec 205
(a) of Act 31 of 1917) and,
accordingly, a question of fact. There is thus, in my view, no historical or
juristic basis for equating
the position of an accused who complains that there
was no evidence upon which the jury could reasonably or properly have convicted
him with that of a prosecutor who complains that the evidence submitted to the
jury was so strong that the jury could not reasonably
have acquitted the
accused.
I consider that it may be inferred that the
57
principle laid down in
Lakatula
's case, supra, was
adopted at least partly, because of a concern that the absence of a right vested
in the accused to appeal against
a conviction on the facts could lead to
injustice. Hiemstra,
Suid-Afrikaanse Strafproses
, 4 ed, p 775 states that
before there could be an appeal purely on fact, the provision in sec 372 was
used, by way of a device ("kunsgreep"),
to appeal on the facts by clothing a
factual question as a question of law by asking whether there was legal evidence
to support
the conviction. The concern of the Courts that the limited right of
appeal accorded an accused should not lead to miscarriages of
justice is also
evidenced by the extraordinary jurisdiction described in
R v
Kaloqeropoulos
, supra.
The procedures of our criminal justice system and the decisions of our Courts
evince a general policy of concern for an accused person
in a criminal case.
This is illustrated by, for example, the rule that he
58
should be fairly tried (in the sense explained in
S v Rudman and Another: S v Mthwana
1992 (1) SA 343
(A), at 376 J - 377
D); the general principle that he should not be convicted unless his guilt is
established by the prosecution
beyond a reasonable doubt; the rule that he
should not be placed in double jeopardy by being tried again after he has been
acquitted
or convicted; and the various rules which exclude certain types of
evidence on the ground that it was improperly obtained or is of
doubtful
relevance or cogency or would be unduly prejudicial to the accused.
I am unable to detect a similar concern in our law for the interests of the
prosecutor. Indeed the various measures to protect the
interests of the accused
and to ensure that he is not wrongly convicted place, pro tanto, limitations on
the power of the prosecution
to obtain a conviction. There are two further
indicia of this general approach. I have already referred to R
59
v Herbst
, supra, in which this Court interpreted sec 372
of Act 31 of 1917 (in its original form) as permitting only reservations of
questions
of law in favour of the accused. I would also refer to the cases of
R v Brasch
1911 AD 525
and
Rex v Gasa and Another
1916 AD 241
,
which were decided prior to Act 31 of 1917 coming into operation. In these cases
effect was given to a general practice in South
Africa, and also in England,
that, in the absence of special statutory provision, the Crown was not entitled
to appeal against an
acquittal. In his judgment in
Gasa
's case Solomon JA
referred to sec 1 of Act 1 of 1911 which allowed the Appellate Division to grant
leave to appeal against "any judgment"
in both civil and criminal matters. He
continued (at 246):
"In view, however, of the practice to the contrary, which we must presume was
present to the minds of the Legislature, the conclusion
to which I come is that
it was never intended by these general words to interfere with the
long-established
60
practice that an acquittal by a competent Court in a criminal case is final and
conclusive, and that it cannot be questioned in any
subsequent proceeding.
Effect can be given to the section by limiting the right to grant leave to
appeal to applications by convicted
persons. And that, in my opinion, is what
was intended, for I do not feel much doubt that if the Legislature had intended
to confer
the right upon the Crown in cases of acquittal, it would have done so
in clear and express terms. To hold otherwise would be to open
the door to
appeals of all kinds, which I am satisfied was never contemplated by the
Legislature".
(See also
Attorney-General (Transvaal) v Levy and Another
1925 AD 378
;
R v Adams
and Others
1959 (3) SA 753
(A), at 764 A-F.) As to English law see
Benson
v Northern Ireland Road Transport Board
1942 AC 520
(HL); and Walker and
Walker,
The English Legal System
, 5 ed, at 506, describing The Criminal
Justice Act 1972 which for
61
the first time gave the prosecution a limited right of appeal on a
point of law following an acquittal on indictment.)
The remarks of Solomon JA
in
Gasa
's case, supra, about the consequences of allowing an appeal
against an acquittal are particularly pertinent in the present case.
It seems to
me that if the Court were to accede to appellant's contention it would be
opening the door to appeals by the prosecution
against acquittals, contrary to
the traditional policy and practice of our law.
For these reasons I am of the opinion that it is not competent for the
prosecution to raise as a question of law in terms of sec 319
of the Act the
enquiry as to whether on the evidence placed before the trial Court a reasonable
court could not have acquitted the
accused.
The only authority which appears to provide any
62
support for the argument of appellant's counsel on this aspect of the
case is
R v Lusu
1953 (2) SA 484
(A). In this case the Railway
Administration had reserved certain waiting rooms at the Cape Town railway
station for the exclusive
use of what were then termed "Europeans". In so doing
the Administration purported to act under certain provisions of the Railway
Act
empowering the Administration to reserve any railway premises for the exclusive
use of a particular race or class of persons.
In terms of the Act (and a certain
regulation) it was an offence for someone who was not a European to enter,
remain in or make use
of premises so reserved. The respondent, who was not a
European, was charged in the magistrate's court with having committed this
offence. The magistrate found that the respondent had in fact entered, remained
and made use of the reserved premises; but acquitted
him on the ground that the
action of the Administration in reserving the waiting rooms in question
63
had resulted in partial and unequal treatment to
a substantial degree as between Europeans and non-Europeans, the facilities
provided
for non-Europeans being substantially inferior to those provided for
Europeans, and that accordingly, on the authority of
R v Abdurahman
1950
(3) SA 136
(A), the action of the Administration was void.
Acting in terms of sec 104 of the Magistrates' Court Act 32 of 1944 the
Attorney-General required the magistrate to state a case for
consideration by
the Cape Provincial Division, as a question of law/ whether the correct
interpretation of the statutory provisions
concerned was not such that the
Administration might when so reserving premises exercise "unfettered
discretionary rights and powers",
even where the exercise thereof might result
in partial and unequal treatment to a substantial degree as between different
races
and classes of persons. The Cape Provincial Division, by
a
64
majority, answered the question adversely to the
Attorney-General
and dismissed the appeal. An appeal to
this Court under sec 105 of Act 32 of 1944 was dismissed,
one member of
the Court dissenting. Centlivres CJ, who
delivered the majority judgment,
after setting out the
facts, stated (at 487 in fin - 488 B):
"At the outset I should point out that the question which we have to consider
is a question of pure law. Presumably that question
was framed deliberately in
the language in which it is couched. It does not ask the Court to consider, what
would also have been
a question of law, viz: whether there was evidence on which
it could reasonably be held that the action of the Administration in
reserving
waiting rooms at Cape Town Railway Station resulted in partial and unequal
treatment to a substantial degree as between
European and Non-European. Had such
a question been raised it would have been necessary to consider the evidence but
that question
not having been raised we must accept as a fact that the action
of
65
the Administration has resulted in partial and unequal treatment to a
substantial degree as between Europeans and non-Europeans."
(For convenience I shall call this latter question "the hypothetical
question".)
It is to be noted that these remarks are purely obiter and,
therefore, not binding on this Court. Counsel for the Attorney-General
at no
time asked the Court to consider the hypothetical question; nor was the issue as
to whether the hypothetical question could
be raised by the Attorney-General as
a matter of law in any way debated before the Court. Had this been done a number
of points could
have arisen: e g whether the principles relating to the
statement of a case under sec 104 of Act 32 of 1944 were the same as those
pertaining to the reservation of a question of law under sec 372 of Act 31 of
1917; to what extent this Court was entitled, in
66
considering the evidence, to evaluate conflicting testimony; and
whether a consideration of the hypothetical question did not involve
a value
judgment, in which questions of degree would have to be weighed in the light of
particular circumstances, and therefore a
question of fact (cf
Attorney-General, Transvaal v Kader
, supra, at 740 F-I). In all the
circumstances I am not persuaded by this dictum that the conclusion which I have
reached in regard
to the ambit of sec 319 is incorrect.
Furthermore, I should briefly refer to the third passage quoted above from
the judgment of Botha J in the
Petro Louise
case, supra. Here the learned
Judge was careful to leave open the issue as to whether the "totally different
question" referred to
by him could properly have been raised under sec 104 of
Act 32 of 1944 (see further at 1978 (1) SA, at 281 C-D) .
In argument reference was made to cases dealing with appeals on a question of
law in income tax matters
67
and also to the manner in which the courts distinguish questions of law
and fact in the field of arbitration. In general I do not,
however, find these
authorities helpful in the interpretation of sec 319.
I accordingly conclude
that question 6 could not competently be raised by the appellant under sec 319
of the Act and that the application
for its reservation must be dismissed.
Before proceeding to the next aspect of the case there is, however, one
general observation that I wish to make. Having read the evidence
in this case,
and particularly having several times viewed the video film, I am left with
feelings of shock and dismay at the conduct
of the policemen concerned with the
execution of this operation. Even on the respondents' own version their reaction
to the situation
in which they found themselves was, in my view, grossly
excessive. Moreover, as the trial Court found, there were "strong
indications"
68
of the common purpose to act illegally alleged by
the prosecution. And another Court seized of the case on the merits may well
have
concluded that these strong indications, taken in conjunction with the
failure by the accused to enter the witness box, were cogent
enough to secure
the conviction of the respondents, or some of them. These considerations must
not, however, be allowed to obscure
one's perception of the legal and policy
issues involved in permitting sec 319 to be utilized in the manner the
prosecution in this
case wishes to use it; or to weaken one's resolve to
maintain what appears to be sound legal practice.
QUESTION 1
This question, as amended at the hearing in a
small respect, reads as follows:
"Whether the trial court was as a matter of law correct in ruling that all
the evidence of Accused 2, 4, 5, 6, 7, 10 and
69
11 given at the inquest into the death of Michael Cheslyn Miranda and
two others in Case Number 493/87/8 was inadmissible at
the trial in circumstances where:
(a) The record of the proceedings of the aforesaid inquest was admitted as
exhibit 3 at the trial (on the qualified basis that each
of the Accused admitted
that such record could be handed in and used by the prosecution during the trial
without formal proof thereof
as being a true and correct record of the evidence
and proceedings of the aforesaid inquest, but without admitting the truth of the
contents of the record).
(b) Those parts of the evidence contained in the said record set out in Annexure
"A" hereto were of an incriminating nature.
(c) Each of the aforesaid Accused were at all times during the inquest
individually represented by Counsel, who was briefed to appear
on their behalf
and on behalf of the Minister of Law and Order.
(d) The nature
and ambit of the evidence
given by the aforesaid Accused at the
inquest,
the nature and terms of the
objections actually made by their
70
Counsel, and the circumstances in which it was received by the inquest
magistrate appear fully from the said record, and are for convenience
not
repeated here."
It appears that an inquest, at which viva voce evidence was heard, was held
in respect of the three persons fatally injured in the
shooting. The hearing
commenced on 7 December 1987 and on 3 March 1988 the magistrate who conducted
the inquest announced his finding.
It was to the effect that the death of the
deceased was caused by the negligence of the fourth respondent "en sy
manskappe".
As the question indicates, respondents nos 2, 4, 5, 6, 7, 10 and 11 gave
evidence at the inquest. At the trial the prosecution sought
to put in the
inquest record as evidence of incriminating admissions made by these respondents
relevant to the issues in the case.
The parts of the evidence containing such
incriminating
71
material are set forth in the annexure "A" which
is referred to in par (b) of question 1 and which consists of 29 pages of
schedules.
The defence objected to this evidence on the ground that it was inadmissible
in that in each case it tended to incriminate the respondent
concerned. The
trial Judge ruled that the evidence was inadmissible and gave full reasons for
his ruling. (These have been reported,
see
Maqmoed v Janse van Rensburq and
Others
1991 (1) SACR 185.)
Before considering these reasons, it is
convenient to summarize the relevant principles of law.
In the sphere of the law of evidence a privilege may be described as a
personal right to refuse to disclose admissible evidence (see
Hoffmann and
Zeffertt,
The South African Law of Evidence
, 4 ed, at 236). One such
privilege is that against self-incrimination. In terms thereof a witness may
refuse to answer a question
72
where the answer may tend to expose him to a
criminal charge. (See sec 203 of the Act.) The privilege is that of the witness
and generally
must be claimed by him. Where the privilege is claimed, the Court
must rule thereon. Before allowing the claim of privilege the Court
must be
satisfied from the circumstances of the case and the nature of the evidence
which the witness is called to give that there
is reasonable ground to apprehend
danger to the witness from his being compelled to answer (see the test laid down
in
R v Boyes
(1861) 1 B & S 311, at 330, approved in
Triplex
Safety Glass Co Ltd v Lanceqaye Safety Glass (1934) Ltd
[1939] 2 All ER 613
,
at 617 H, which in turn was endorsed by the House of Lords in
Rio Tinto Zinc
Corporation and Others v Westinghouse Electro Corporation
[1978] A C 547
(HL) at 612, 647; also
S v Carneson
1962 (3) SA 437
(T), at 439 C - 440
A) . The witness should be given considerable latitude in deciding what is
likely to prove
73
an incriminating reply. As Steyn CJ pointed out in
S
v
Heyman and Another
1966 (4) SA 598
(A), at 608 C - D:
"The avoidance of incriminating replies may not be a simple matter by any
means. As observed in
Q. v. Boyes
1861 L.J.R 301
(referred to in
S v
Carneson
,
1962 (3) S.A. 437
(T) at p. 439) a question which might at first
sight appear a very innocent one, might, by affording a link in a chain of
evidence,
become the means of bringing home an offence to the party
answering."
In similar vein are the remarks of Lord Denning MR in
In
re Westinghouse Uranium Contract
[1978] A C 571
(CA), at
574 E - F:
"There is the further point: once it appears that a witness is at risk, then
'great latitude should be allowed to him in judging for
himself the effect of
any particular question': see
Reg. v. Boyes
(1861) 1 B. & S. 311,
330. It may only be one link in the chain, or only corroborative of existing
material, but
74
still he is not bound to answer if he believes on
reasonable grounds that it could be used against him."
It is common cause that this privilege is available to a person called as a
witness in inquest proceedings (see in this connection
S v Ramaligela en 'n
Ander
1983 (2) SA 424
(VH), at 429 E-F).
According to English law there is no rule of law requiring the Judge to warn
a witness that he is not obliged to answer incriminating
questions, though in
practice this is often done. Moreover, the absence of a warning and the fact
that the witness answered incriminating
questions in ignorance of his rights do
not prevent such incriminating evidence being used in subsequent criminal
proceedings brought
against him (see
Cross on Evidence
, 7 ed by C Tapper,
at 423;
Phipson on Evidence
14 ed at 536) . In this country the position
is somewhat different. As was held in
S v Lwane
1966
75
(2) SA 433 (A), the rigour of the rule of English law is in
our law qualified by the established rule of practice of our Courts that
it is
the duty of the presiding judicial officer to inform a witness of his right to
decline to answer an incriminating question
(at 440 in fin, 443 D and 444 B) .
This practice arose because it was recognized that in this country many persons
who enter the
witness-box, particularly the uneducated, are likely to be wholly
ignorant of the right to decline to answer incriminating questions
(at 439 F-H,
443 D-G). As to the effect of a failure to perform this duty, it was held in
Lwane
's case, supra, at 440 in fin - 441 A, that -
"The effect of non-observance of that rule upon the admissibility in
subsequent proceedings of an incriminating statement made by
an uncautioned
witness falls, in my judgment, to be determined upon the particular facts of the
case. In any such enquiry, the nature
of the incriminating statement and the
ascertained, or presumed, knowledge of his rights by the
76
deponent will always be important factors."
(per Ogilvie Thompson JA, delivering the main judgment). In a separate
concurring judgment Holmes JA put the position slightly differently
(at 444
F):
"Non-observance of the aforesaid duty is an irregularity which ordinarily
will render the incriminating evidence inadmissible in a
prosecution against the
witness."
The rationale for the stricter approach of the English law would appear to be
the belief that most persons are aware of their rights
in this regard and where
they are not ignorantia juris non excusat (see
R v Coote
(1873) 17 E R
587
, at 592). This reasoning has lost much of its force in this country since
the decision of this Court in
S v De Blom
1977 (3) SA 513
(A) in which it
was held that the concept that ignorance
77
of the law is no excuse had no application in
determining criminal culpability ("skuld") in our law (see 529 A-H).
Where a witness objects to answering a question on the ground of the
privilege against self-incrimination and the judicial officer
wrongly overrules
the objection and compels the witness to answer the question, then his reply, if
incriminating, will not be admissible
in subsequent criminal proceedings against
him (see
Coote
's case, supra, at 591, quoting
R v Garbett
(1847)
169 E R 227
; Hoffmann & Zeffertt, op cit at 243).
After that digression concerning the law, I
return to the facts of this case. Each of the
respondents who gave evidence at the inquest was warned
by the presiding magistrate before he commenced giving
evidence. A typical warning was in these terms (see
reported judgment in 1991 (1) SACR at 187 g):
"Die hof wil u net vooraf waarsku dat sekere vrae dalk aan u gevra kan word
wat daarop kan neerkom dat u voel dat indien u
78
antwoord daarop gee dit u miskien kan inkrimineer en u is geregtig dan om te
weier om daarop te antwoord. Die hof vermoed dat die
advokaat namens die
Minister van Wet en Orde sal ook, indien hy bewus word van so ' n vraag, namens
u beswaar aanteken."
"Die advokaat"
referred to was Mr
Veldhuizen
who, as par (c) of question 1 indicates,
represented the Minister of Law and Order, and the individual respondents called
to give
evidence, at the inquest.
What occurred when the first respondent to
give evidence at the inquest (the sixth respondent) was examined by the
prosecutor is fully
described in the judgment of Williamson J on the
admissibility issue. As this has been reported (see 1991 (1) SACR, at 190 g -
192
i) and as my judgment is already assuming excessive proportions, I do not
propose to repeat what Williamson J has accurately described.
I shall merely try
to sum it
79
up.
The very first question asked of the sixth respondent was
objected to on grounds of self-incrimination by both the witness and Mr
Veldhuizen
. The objection was overruled and an answer was given which is
listed in annexure "A" to question 1 as an item of incriminating evidence.
In
the first few pages of sixth respondent's evidence the same thing occurred on
three or four more occasions and then came the general
ruling which is set forth
in the reported judgment at 192 c-g, which was broadly to the effect that the
witness could object to a
question only where the answer involved direct
incrimination of himself in unlawful conduct. (I shall call this "the general
ruling".)
Again, as a result of this ruling, an answer was extracted from the
witness which is listed in annexure "A". Thereafter three further
objections
were taken, two appear to have been upheld, one overruled.
80
The next witness was the tenth respondent. In his case only
one objection was taken to a question by the prosecutor. It was overruled
by the
magistrate and the answer given is listed as incriminating in annexure "A". In
the case of the remaining respondents who gave
evidence no objections were
raised.
The reasons of Williamson J for ruling the evidence given by all the
respondents who gave evidence at the inquest (apart from the
ninth respondent,
whose evidence was not of an incriminating nature) may be summed up as
follows:
(1)
The magistrate's general
ruling wrongly restricted the ambit of the privilege against self-incrimination
as laid down in
Heyman
's case, supra.
(2)
Objections were raised by or on behalf of the sixth respondent and
they were overruled and in the light of the general ruling and
the
81
approach of the Magistrate there was little point in persisting with such
objections throughout his evidence.
(3) In the case of the other respondents it would
similarly have been
pointless to repeat the
same type of objection. While it might have
been
wiser to have objected fully, no good
purpose would have been served because
of the
magistrate's general ruling and approach.
(4) He
concluded (at 193 e-f):
"Counsel in a very real sense was by virtue of the prior ruling helpless to
protect his clients and they must obviously have known
that they were now
obliged to answer virtually all the questions relating to matters referred to in
their statements. I consider
that the incorrect ruling that the magistrate gave
as to what was to be regarded as incriminating tainted the whole proceedings
before
him and rendered the position of each witness untenable as far as being
meaningfully able to protect himself against
self-incrimination."
82
(5) The only just way to redress the situation was to rule all the evidence
inadmissible.
Question 1 raises the broad issue as
to whether the trial Judge was correct in ruling that the evidence in question
was inadmissible.
Williamson J refused to reserve this question as, in his view,
the essential attack upon the ruling was based not on an alleged mistaken
or
wrong view or application of the law, but on the factual finding that none of
the respondents had in the circumstances disclosed
waived his privilege against
self-incrimination. Accordingly, the question sought to be reserved was in
substance not a question
of law, but a question of fact "masquerading" as a
question of law (see reported judgment 1990 (2) SACR at 478 h-j).
The admissibi1ity of evidence may well turn solely on an issue of fact. An
obvious example of this is the case where the admissibility
of an
extra-curial
83
statement by the accused is in issue and this depends on whether it was
made freely and voluntarily and without undue influence or
whether it was
induced by some form of physical coercion. This is a question of fact; and the
only way in which it could be raised
by an accused person as a point of law
reserved would be to pose the question as to whether there was any legal
evidence upon which
the Judge could properly have found that the prosecution had
discharged the onus on this issue (see
R v Nchabeleng
1941 AD 502
, at
504;
R v Ndhlangisa and Another
1946 AD 1101
, at 1103-4). Admissibility
may, on the other hand, turn purely on a question of law, e g whether a certain
statement constitutes
a confession (see Ry
Becker
1929 AD 167
, at 170;
R v Viljoen
1941 AD 366
, at 367). Furthermore, in a particular case
admissibility may depend upon both law and fact.
It seems to me that the decision of Williamson J on the admissibility of the
inquest evidence falls into
84
the last-mentioned category. In effect he found
(i) that the failure, after a certain stage in the proceedings, on the part of
the
respondents (and their counsel) to object to answering incriminating
questions was the result not of a free election to do so, but
of their having
been discouraged or inhibited from so objecting by the general ruling of the
magistrate and his approach to this
issue; and (ii) that this rendered the
evidence of the respondents inadmissible. Finding (i) is clearly one of fact or
of factual
inference; whereas finding (ii) is a matter of law. As formulated,
question 1 does not raise the question as to whether there was
any legal
evidence upon which finding (i) could have been made. And, in any event, for
reasons broadly similar to those stated in
regard to question 6, I do not think
that such a question can be raised at the instance of the prosecution.
Consequently only finding
(ii) can be the subject-matter of a reservation of
a
85
point of law. This is not quite how the appellant
approached question 1 in argument, but on this basis the application does raise
a question of law in terms of sec 319.
It was strenuously argued by counsel for the respondents that the question of
law was not material in that even if this Court should
uphold it this would not
have "a practical effect upon the conviction of the accused" (cf
Attorney-General, Transvaal v Flats Milling Co (Pty) Ltd and Others
1958
(3) SA 360
(A), at 373 D-E). I have considered this argument, but have come to
the conclusion that the question of law is material and that
the application for
its consideration should be granted. It is not necessary to elaborate upon this
conclusion for when it comes
to the merits of the question I am of the view that
it must be answered against the appellant.
Proceeding on the basis of the factual finding or inference stated under (i)
above, I am in respectful
86
agreement with Williamson J that it renders all the inquest evidence
inadmissible. This is obviously not a case of the absence of
a warning: there
were warnings and indeed the respondents were represented by counsel. But what
happened is that the magistrate's
ruling and general attitude made it clear that
objections to the kind of evidence that the respondents were expected to give
would
not be upheld. In a sense this was more unfair to the respondents than no
warning; and in effect it placed them in the same position
as they would have
occupied had they objected and their objections been over-ruled. This "taint",
as it was described by the trial
Judge, would tend to affect the whole
proceedings. Certainly the prosecution, on whom the onus rested (cf R
v
Melozani
1952 (3) SA 639
(A), at 643 H) did not attempt to show that any
portions of the evidence should be treated differently.
For these reasons I conclude, with reference to
87
question 1, that the trial Judge correctly ruled
the inquest evidence to be inadmissible.
QUESTION 2
This question reads:
"Whether the trial court was as a matter of law correct in ruling that the
evidence of Accused 4 at the criminal prosecution of the
State v Errol Surja and
12 Others under Case Number SHC377/85 was inadmissible at the trial, in
circumstances where:-
(a)
The record of the
proceedings of the aforesaid prosecution was admitted as exhibit 2 at the trial
(on the basis that each of the Accused
admitted that such record could be handed
in and used by the prosecution during the trial without formal proof thereof as
being a
true and correct record of the evidence and proceedings of the aforesaid
prosecution, but without admitting the truth of the contents
of the
record).
(b)
Those parts of the evidence
contained in the said record set out in Annex-ure "B" hereto were of an
incriminating nature.
88
(c) The nature and ambit of the evidence given by Accused 4 and the
circumstances in which it was received by the court appear fully
from the said
record and are for convenience not repeated here."
The criminal prosecution here referred to took place in the regional court
over the period July/August 1986, i e prior to the inquest
hearing. It related
to the same shooting incident in Thornton Road. The accused were all alleged to
have been stone-throwers and
were charged with public violence. The fourth
respondent was one of the main witnesses for the prosecution. The accused were
discharged
at the end of the State case.
The appellant sought to use the evidence given by fourth respondent in the
regional court as a series of incriminating admissions
in the present case. The
trial Judge ruled that this previous evidence was inadmissible. It is clear that
at no time before and during
his giving
89
evidence before the regional court was fourth
respondent
warned about self-incrimination; nor was he personally
represented by counsel. The trial Judge ruled that,
applying
Lwane
's case, the evidence should not be
admitted (see reported judgment 1991 (1) SACK at 193 i to
194 b). In the course of stating his reasons the
learned Judge said:
"I do not know whether or not the accused because of his position necessarily
had knowledge of the rights conferred on him by s 203.
I am certainly not
prepared to assume that he did. I would not be surprised if some recently
qualified advocates were also ignorant
of this protection. The evidence in its
totality given by accused No 4 is of an incriminating nature. It would be very
difficult
for anyone but a trained lawyer to appreciate in advance the ultimate
thrust and importance of what might at first blush not seem
to be an
incriminating question. After considering the matter I can see no good reason
why the principle
90
laid down in
Lwane
' s case should not apply. Here again it is almost
impossible to sort out the objectionable from the unobjectionable and no good
purpose
would be served by attempting to do
so."
In refusing the application for
the reservation of question 2 the trial Judge advanced the same reasons as in
regard to question 1.
In fact he dealt with the two questions together. In
essence then his refusal in respect of question 2 was based on the view that
it
was purely a question of fact.
As I shall show when I come to deal with the merits of the question I
consider that it is one of law. Again respondent's counsel disputed
the
materiality of the regional court evidence of the fourth respondent and
submitted that it did not take the case against fourth
respondent substantially
further than the sworn statements made by him, which were put in as evidence
against him in the Court a
quo. I am not persuaded by this
91
argument. A comparison of the relatively terse statements
made by fourth respondent and the 170-odd pages of evidence given by him
before
the regional court convinces me that had the latter been admitted against the
fourth respondent it would have made a considerable
evidential impact and, inter
alia, may well have influenced the conduct of the defence case. In this regard
it must be borne in mind
that the trial Court considered that the prosecution
had adduced a strong case and found it a "most difficult case to decide".
Accordingly, the application for the reservation of question 2 should be
granted. I now turn to consider the merits of the question.
I have already
quoted the passage from the judgment of Williamson J stating his reasons for
ruling the regional court evidence to
be inadmissible. The reasons seem to me,
with respect, to misinterpret and misapply
Lwane
's case and, therefore,
to contain errors of law.
92
The ruling appears to be based on three considerations:
(a) that it could not be assumed that fourth respondent had been aware of his
rights;
(b) that it would be difficult for anyone other than a trained lawyer to
appreciate in advance the ultimate thrust and importance
of what might at first
blush seem not to be an incriminating question;
(c) that there was no good reason why the principle in
Lwane
's case
should not be applied.
I shall deal with these in
turn.
As to (a), there was no direct evidence before the Court a quo concerning the
fourth respondent's actual knowledge, or ignorance,
of his rights at the time
when he testified. The absence of such evidence is not, however, in itself
conclusive of the issue of admissibility.
In
Lwane
's case approval of the
rule of
93
practice requiring a witness to be cautioned
was, as I
have indicated, based upon the consideration that in
this
country the vast majority of persons who enter the
witness box are
likely to be ignorant of the privilege
against self-incrimination.
Accordingly proof that an
uncautioned witness was actually aware of his
rights
would ordinarily render the incriminating evidence
admissible,
despite non-observance of the rule of
practice. But that is not the only
ground on which such
evidence can be held to be admissible. In both of
the
judgments delivered in
Lwane
's case it was made clear
that the
effect of non-observance of the rule was
dependent on the particular facts of
the case. In this
regard I draw attention to the passage from the
judgment
of Ogilvie Thompson JA quoted above, in which one of the
factors
mentioned by him was the deponent's "ascertained,
or
presumed
,
knowledge of his rights" (my emphasis);
and to a passage from the judgment of
Holmes JA (at 444
94
F-G) where the learned Judge referred to a
witness's
knowledge of his rights merely as an example of a case in
which
a failure to caution would not result in unfairness
and in the evidence being inadmissible. In dealing with i
the facts of that case Ogilvie Thompson JA pointed out
inter alia (at 441 A - 442 D) that the appellant was an
uneducated man who had not had any legal assistance at
the time when he gave evidence; that it was not
suggested that he was at all material times anything but
ignorant of his rights; and that, therefore, he fell,
prima facie, "well within that class of persons who
should, when the situation arises, invariably be warned
that they are not obliged to answer an incriminating
question".
In the present case the facts are wholly different. The fourth respondent
held the rank of lieutenant in the Railway Police when he
testified before the
regional court. In the absence of any indication to
95
the contrary, it is safe to assume that he was not ignorant of
the judicial process. He had been in charge of the operation which
gave rise to
the prosecution and he was called by the prosecutor as a witness of major
importance in the State's case against the
accused. It is reasonable to assume
that the prosecutor was available and willing to advise him on his rights, if he
were in any
doubt on that score. It is in any event highly unlikely that he was
ignorant of his right to refuse to answer incriminating questions.
Prima facie
he fell well outside the class of persons who require to be cautioned in that
regard. That being so, and failing direct
evidence of his state of mind at the
time, the trial Judge could assume that he had been aware of his rights.
As to (b), this was not a case of a particular answer or statement. The
fourth respondent was called upon to give evidence generally
about an incident
in
96
which it must have been obvious to
him that, to say the
least, the legality of his actions and those of his
men
would be placed in issue, yet he did so apparently
without any
hesitation or reluctance. A perusal of the
record of fourth respondent's
evidence shows that he
could not have been in any doubt about the
"ultimate
thrust and importance" of the potentially
incriminating
questions that were put to him. The possible
unlawfulness of
the conduct of him and his squad was
exploited to the full by the legal
representatives of the
accused when they cross-examined him. The object
of
this cross-examination (which altogether runs to 150
pages of the
record) was plainly to discredit the fourth
respondent by seeking to show
that the shooting by him
and his men had been unnecessary, unreasonable and
thus
unlawful. In his evidence-in-chief the fourth
respondent had
mentioned two reasons why the squad had
fired into the crowd: because their
lives were in danger
97
and because they wanted to arrest the stone-throwers. Under
cross-examination these reasons were immediately challenged by the attorney
appearing on behalf of the first two accused; and in the ensuing questions it
was made clear that the defence did not accept the
reasons advanced and that the
defence case was that the true reasons were to disperse the stone-throwers, to
teach them a lesson
and to cause them to desist from their stone-throwing
activities. This was the general tenor of the cross-examination. In this setting
an evaluation of any particular question in isolation is not significant. From
the flow and thrust of the cross-examination as a
whole it must have been
manifest to fourth respondent that he was accused of having acted unreasonably,
improperly and unlawfully
and that the object of the questions was to get him to
incriminate himself.
As to (c),
Lwane
's case made it clear that the
98
rationale underlying the privilege against self-incrimination
is the encouragement of persons to come forward to give evidence in
courts of
justice by protecting them as far as possible from injury or needless annoyance
in consequence of doing so (see 438 G and
also 444 E). While this reason is
pertinent in the case of the ordinary citizen, it is less appropriate in the
case of a police officer
who is obliged by virtue of his office to give evidence
concerning matters arising from the execution of his police duties, particularly
where the incriminating questions relate to the propriety and/or lawfulness of
the manner in which he performed those duties. Of
course, if he refuses to
answer the questions the Court must perforce uphold his privilege to do so. But
in the event of his answering
such questions (not having been cautioned) there
is less reason in his case than in other cases to exclude the evidence.
Moreover,
the propriety of police conduct is a matter of
99
public concern, and public policy requires that such conduct
should, as far as possible, be open to scrutiny in the courts. This factor,
where applicable, also tends to countervail the rationale for excluding
self-incriminating evidence. These considerations lead to
the conclusion that,
contrary to the view of the trial Judge, there were sound reasons for holding
the evidence in question to be
admissible; and that it serves the due
administration of justice to do so.
For these reasons I am of the opinion that in all the circumstances the
evidence should have been admitted. That being so the next
question is: to what
relief is appellant entitled? It seems to me that the only relief which this
Court is empowered to grant is
a setting-aside of the fourth respondent's
acquittal and the ordering of a re-trial de novo before another Judge and
assessors (cf
S v Rosenthal
1980 (1) SA 65
(A), at 82 H; see also
S v
Seekoei
1982 (3) SA 97
(A), at 103 G-H).
100
As the cases quoted indicate this Court has a
discretion in the matter. Although the charges preferred against the fourth
respondent
are very serious there are a number of factors which persuade me to
exercise this discretion against ordering a trial de novo. The
original trial,
as I have indicated, was a complex and lengthy one. The events with which the
case is concerned occurred about seven
years ago and the recollections of
eye-witnesses must by now have dimmed considerably. And this applies to fourth
respondent as well.
At the hearing of this appeal I did not gain the impression
from appellant's counsel that the prosecution was keen to have a trial
de novo.
On the contrary it was suggested by counsel (as I understood the submission)
that the Court could order the re-opening of
the case in order that the excluded
evidence be admitted and the respondents be given the opportunity to lead
further evidence, if
so advised. A trial de novo would involve only the fourth
respondent
101
and none of the other respondents. The fourth
respondent would thus again be placed in jeopardy and there is no certainty that
the
trial would result in a conviction. In view of these circumstances I am of
the view that the discretion of this Court should be exercised
against an order
for a trial de novo. Accordingly there is no need to set aside fourth
respondent's acquittal.
As to costs: I do not think that the appellant's very limited success
warrants an order for costs in its favour. The respondents do
not ask for
costs.
It is accordingly ordered as follows:
(1) The applications to have reserved in terms
of
sec 319
of the
Criminal
Procedure Act
51 of 1977
questions 4 and 6 are
dismissed.
(2) The applications to have reserved in terms
of
sec 319
questions 1 and
2 are allowed.
102
(3) The answer to question 1 is: "Yes it
was."
(4) The answer to question 2 is: "No it
was
not."
(5) In terms of
sec 319
, read with
secs 322
(4) and
324
of the
Criminal
Procedure Act
51 of 1977
, no order is made in conse
quence of the answer
given to question 2.
(6) There is no
order as to costs.
M M CORBETT
BOTHA JA)
F H GROSSKOPF JA) CONCUR NICHOLAS AJA) KRIEGLER AJA)