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[1995] ZASCA 141
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S v Matolo and Others (152/95) [1995] ZASCA 141 (23 November 1995)
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION
)
CASE NO. 152/95
PETRUS DIKHAKENG MATOLO
1st APPELLANT
KABELO JOSEPH
LEBAKENG
2nd APPELLANT
EPHRAIM NKOSI
3rd APPELLANT
and
THE STATE
RESPONDENT
CORAM
: NESTADT, VAN DEN HEEVER et SCHUTZ JJ.A
DATE HEARD
: 17 NOVEMBER 1995
DATE
: 23 NOVEMBER 1995
SCHUTZ JA
2
JUDGMENT
SCHUTZ JA
:
The three appellants, all police constables, were convicted by a Regional
Court of assault committed on 14 April 1991. At the time
they were members of
the Welverdiend riot unit, and the complainant, one White Mabitsa, was under
arrest as a suspect. Although acknowledging
their presence at the time of his
arrest, they denied all knowledge of any assault upon him by anybody. He claimed
that he had been
assaulted some hours after his arrest. The Court accepted his
version and rejected that of the three appellants and of another member
of their
unit who was
3
called as a witness on their behalf. They were each sentenced to a fine of
R1500 or three months imprisonment, the whole being suspended.
Their appeal
against conviction to the Transvaal Provincial Division failed, but they were
given leave to appeal by that Court.
For all practical purposes the complainant was a single witness and he was so
treated by the magistrate. His version comes to this.
On the morning of 14 April
the riot unit arrived at his house in force and searched it. The first appellant
pointed out the complainant
to the sergeant as the man who kept firearms for the
"comrades." He was asked to point out firearms but said he knew nothing about
them. In the presence of the other two appellants the first appellant warned him
that they would take him away and he would speak
the truth. He was taken
4
to the Khutsong and then the Carletonville police stations and back to the
Khutsong station, where he was locked up.
At some time after 7 pm the three appellants took him into a room. The first
appellant slapped his face several times so that he fell
down, while the third
desired to know whether he was ready to speak the truth. The second appellant
also struck him, kicked him in
the ribs with shod feet when he was down and
trampled him. The third appellant kicked his mouth so that the lip swelled and a
tooth
or teeth had to be extracted later. While this was going on his three
assailants complained that he still would not speak the truth.
They demanded to
know where his brother was and he said that he did not know. In order to extract
"the truth" they tied up his hands
and feet as he lay prone and pulled a
plastic
5
covering tightly over his face so as to suffocate him. He was electrically
shocked in the anus and on the left arm. As a result a
mark was left on that
arm. He was also struck on the eye while his face was covered. The plastic was
somewhat loosened, and upon
a further demand to know the whereabouts of his
brother he said he was in Welkom. He was then untied and placed in the back of a
closed police bakkie. The first appellant sat in front. They drove to Welkom.
The second and third appellants accompanied them in
another vehicle.
They failed to find his brother at Welkom. On the return journey the first
appellant drove the bakkie. The other two appellants were
not with them and, as
appears from the unchallenged defence evidence, at a certain stage they took a
different route. After a while
the first appellant
6
said that he was feeling sleepy. He handed over to the other policeman
with him. This man soon showed that he was also affected by tiredness,
and at times he swerved off the road. The complainant was observing
matters from the back of the bakkie till he noticed that both the driver
and the passenger had fallen asleep, and that a vehicle was approaching
from the front. He knocked to awaken the driver, and when he had
succeeded in doing so, the latter, upon seeing the oncoming vehicle,
swerved off the road and stopped. The bakkie did not capsize, and the
complainant did not suffer any injuries. He had been holding on tightly.
This event is important. Only two witnesses gave evidence about
it - the complainant and the first appellant. Although there is much in
common in their versions, there was diametric opposition in two respects.
7
The first appellant said that the bakkie came to a violent halt: and that the
complainant was injured in consequence. The complainant
denied suffering injury.
As to the manner in which the vehicle came to a stop, his initial version was
that it stopped sedately.
Underlying the difference as to his being injured are
the two latent theories of the case: on the State side that the appellants
seized on this event and embroidered on it in order to explain the complainant's
visible injuries (which had been sustained earlier
in the day and which might
yet have to be accounted for): and on the defence side that the complainant
seized upon the injuries here
accidentally sustained and used them to give
credence to a false charge to be laid against them and also a civil claim for
damages.
To return to the complainant's version. He was taken back to the
8
Carletonville police station. On the following evening the appellants again
sought to prevail upon him to take them to his brother,
but without success. On
the 17th April he was taken to court and the charge against him (he said that he
was never informed what
it was) withdrawn, upon which the presiding magistrate
ordered his release.
His father was present at court. After the release he took him to a
photographer, where five photographs of his face were taken, then
to a doctor
and then to the charge office at Carletonville to lay a charge of assault. This
attempt met with no success as the police
on duty said that they did not hear
what he was trying to say. He said to his father that he would rather go home
and first recover
before pursuing the matter further.
9
He had heard of and seen the three appellants before these incidents but did
not know them. After his release he did not see them
again until the court
proceedings.
Later, apparently on 26 April, the complainant did succeed in laying a
charge, when a certain Sister Shelly (her correct name appears
to be Sally
Seasley) took him into the presence of a newly arrived police major. Of Sister
Shelly he said that he could not, because
of ignorance, agree with the
proposition put in cross-examination, "(dat sy) mense in bakkie-vragte vol
aangery het om te gaan klagtes
lê teen die polisie". But he agreed that
she had helped some persons to lay such charges.
The appellants had a wholly different version of what had led to the
expedition to Welkom. Not only did they deny witnessing any
10
assault on the complainant, but they also denied taking any part in his
interrogation and claimed that they were not present when
the complainant agreed
to point out his brother at Welkom. It was put to the complainant that their
commander, Lieutenant Viljoen,
had taken him to Welverdiend police station,
where, with constable Sindi (also of the unit) interpreting, he had agreed to
point
out his brother, which led to Viljoen's ordering the trip to Welkom, of
which the appellants were in due course informed. It was
further put that
Viljoen would say these things, but near the end of the case it was agreed, on
the basis of a psychiatrist's report,
that Viljoen had become so disturbed by
his experiences in the riot unit that he was no longer mentally fit to give
evidence. But
the defence did call Sindi who supported their version. The
complainant
11
denied it entirely, insisting that it was the appellants and not Viljoen who
had questioned him.
All three appellants gave evidence. Most of their version
has been set out already. A few points require further exposition. Dealing
with
the incident on the return from Welkom, the first appellant said that the driver
lost control of the vehicle and bumped into
a rock. He was injured when his head
banged against the vehicle. His neck was sore but he did not receive medical
treatment subsequently.
He went to see what had happened to the complainant and
found that the side of his nose was bleeding. He asked him how he was. The
complainant answered that although he had suffered a hard bump he was alright.
The injury on the side of the nose was all that he
had seen on that morning (it
was by then
12
5 or 6 am on 15 April) but the complainant had pointed out further injuries
when they were going to Bekkersdal on the following day.
Then he noticed also
that his eye and mouth were swollen. He did not observe a laceration on his lip,
nor any injury to his arm,
but the complainant did complain that his body was
sore. It was possible that his arm was injured in the accident or
subsequently.
Upon his return he reported the incident to Viljoen as his commanding
officer, and the complainant himself told Viljoen that his body
was sore as a
result of the accident. He also reported the complainant's injury to the duty
sergeant at Carletonville. He could not
remember who he was, but the records
should reveal his identity. It was the duty of the sergeant to make an entry in
the occurrence
book, and
13
also his responsibility thereafter to decide whether the complainant should
be examined by a doctor. Again when he arrived at Welverdiend
police station he
reported the incident to warrant officer van Graan, and in respect of this
occasion he could say definitely that
not only should an entry have been made,
but that van Graan in fact made one, both in respect of the damage to the
vehicle and of
the injury to the complainant. The complainant made a strongly
favourable impression on the magistrate. He did not make credibility
findings
adverse to the appellants but he found reasons nevertheless to reject their
evidence as being not reasonably possibly true.
Their witness Sindi he rather
brushed aside. Mindful of the need for particular circumspection where the State
relies on a single
witness (see R v Mokoena 1956(3) SA 81(A)) I turn
14
to the question whether this Court should reach a different conclusion to
that of the magistrate.
I shall deal first with constable Sindi. The magistrate referred to the fact
that he corroborated the appellants' evidence, in that
he said that when they
left Welkom the complainant was not injured. However, he questioned why Sindi
should be so certain of this
fact, as he had accompanied the party only as an
interpreter. It was unclear to the magistrate why he should have observed such
matters
so closely. Further, the circumstances at the time and the condition of
the lighting had not been revealed. With regard to these
points it should be
observed that neither the prosecutor nor the magistrate enquired about them, so
that his version stood essentially
unchallenged. Moreover, on his
15
evidence he saw the complainant not only before they went to
Welkom
but also when they came back (and presumably in between). The
record
does not indicate that he lacked opportunity to make his
observations.
The magistrate gave another reason for questioning his
evidence, that the
injuries shown on the photographs are not very striking
and could easily
be missed by a stranger. This may be, but then the
comparison of the
photographs with the assault described by the complainant,
to be dealt
with below, becomes more pointed. As to Sindi's interest in
the
complainant, or lack of it as the magistrate found, the complainant
was,
after all, the key figure in the all-night expedition, and Sindi was
not
merely an interpreter but a member of the much-tried unit. It was
only
a dozen days later that charges were brought against fellow
unit
16
members, and it is unlikely that he would not have heard of this and cast
back his mind to the night of the 14th. But most important
is the fact that the
magistrate did not deal with the essential point of his evidence -that it was
Viljoen who extracted the information
about the complainant's brother, and that
the appellants were not then present. If this was true there would have been no
point in
their alleged assault on him. It may very well be that Sindi was
telling lies to protect his comrades, and it may be that it is difficult
to
expose such a simple story as false, but the magistrate did not find him to be
untruthful. It does not seem to me that this part
of Sindi's evidence can simply
be ignored in weighing the evidence as a whole, as the magistrate did.
The failure to call Viljoen despite the fact that his version had
17
been put has been fully explained, and no inference can be drawn
against
the appellants in that regard.
I return to the opposed versions of the accident on the road
back
and the associated question whether the first appellant
reported it and the
complainant's consequent injuries. In the complainant's evidence in chief
there is no suggestion of the vehicle colliding violently with anything
before or when it stopped. In fact the prosecutor asked him whether the
"pluk van die voertuig uit die pad uit" might have caused him any injury
and he answered, no. In cross-examination this was at first repeated:
"So daar was nie 'n botsing of 'n probleem nie? Die voertuig is bloot
afgetrek van die pad af en tot stilstand gebring? ... Dit het
uit die pad beweeg
en stilgehou."
But a further question by the defence produced a different answer:
18
"Die punt wat ek maak verstaan ek u reg daar was geen botsing van die voertuig
met enige lets met 'n boom of 'n klip of enige iets
wat hierdie voertuig erg
beskadig het of kon beskadig het? ... U sien dit het teen die wal aan die kant
gebots. Dit was toe dit stilstaan"
(emphasis
supplied)
The impression created is that fear of
independent proof of damage to the vehicle began to shift the complainant's
prior insistence
that the vehicle had simply glided to a halt. It was then put
to him that the vehicle had been badly damaged and had been at the
garage for
eight months. To this he responded that it had been damaged only slightly on the
front, "want van daar af het ons met
daardie voertuig gery tot hier."
The cross-examination proceeded:
"My instruksies is dat daardie voertuig heeltemal van die pad af geloop het,
dat dit 'n redelik groof klip getref het waarna die voertuig
heeltemal in die
lug gespring het as ek so kan stel, met die botsing met die klip wat dit oor die
klip
19
gegaan het. ... Nee, dit het net teen daardie klip gebots en stilgestaan, dit
het nie oor dit gegaan nie. Dit was net daar langs
die pad. En hulle het
uitgeklim om ondersoek te gaan instel en my kom vra of ek beseer is, beserings
opgedoen het toe se ek vir hulle
nee" (emphasis
supplied)
From these passages it appears that the
unimpeded stop has turned to collision with a "wal", then to collision with a
"klip", even
a "groot klip." And the policemen are concerned that as a result of
the collision the vehicle has been damaged and the complainant
injured: a
setting by now very close to that put on behalf of the first appellant and later
deposed to by him. Nor is this a mere
detail in the case. It goes to the root of
the main issue - how the complainant came to be injured.
As I have said, the first appellant's version was that because of his report
to the sergeant in charge of the charge office there
ought to have
20
been an entry in the occurrence book at Carletonville, and that there was in
fact an entry in the one at Welverdiend. No further evidence
is on record
concerning the contents of these books, despite the fact that on the occasion of
a postponement late in the trial the
magistrate asked the prosecutrix to ensure
the presence at the postponed hearing of the sergeant on duty at Carletonville
on the
morning of 15 April together with the occurrence book.
In his judgment the magistrate said that the first appellant "wel te kenne
gee dat hy (the complainant) beserings opgedoen het in
die loop van hierdie
voorval waar daar teen 'n klip vasgery is. Nou moet ek sê dat die
getuienis is maar redelik vaag op daardie
aspek". The magistrate added,
correctly, that it was the duty and interest of a policeman to have
21
a record made of injuries suffered by a person under his control, and
also
such an interest on the part of another policeman receiving an
injured
suspect into his custody. He criticised the first appellant for not
having
made his own note of the incident, and I think, with justice. But I do
not
agree with the magistrate that the first appellant's version had been
"redelik vaag". He had given explicit accounts of reports he had made,
and he stood open to exposure as a liar if his evidence concerning them
was false. Also, it is most unlikely that he would not have reported at
least the damage to the vehicle, whoever's version was true. Yet, the
magistrate concluded on this part of the case:
"Nou daar is op 'n stadium te kenne gegee dat of die indruk wat ek gekry het
dat hierdie getuienis aangebied gaan word. Tot op hede
was daardie getuienis nie
aangebied nie. Dit is uiteraard getuienis wat redelik beskikbaar is veral
vir
22
mense soos die beskuldigdes." Equally at least to the State, I would have
thought. And the State had been asked to produce at least
the Carletonville
evidence. The magistrate seems to have forgotten about his request, which led to
a misdirection as explained below.
I think that his reaction at the earlier
hearing, to call for evidence in terms of
S 186
of the
Criminal Procedure Act 51
of 1977
, had been the correct one. It seems to me that it was essential to the
just decision of the case that before rejecting or seriously
questioning the
first appellant's version the magistrate should have insisted on the production
of the occurrence books. The fact
that he had called for the evidence suggests
that there had been a doubt in his mind, and it was not resolved. Instead the
burden
of producing a self-serving
23
statement was cast on the first appellant. The subject was clearly important.
The consequent unfairness to the appellants is enhanced
by two facts - first,
the State never put it to the first appellant that he had not made the reports
that he claimed to have made,
so that he could not rely on the rule as to recent
fabrication allowing him to produce a self-serving statement. Nor was there a
challenge to produce it. Secondly, the magistrate did not extend to the first
appellant the benefit he extended to the complainant,
of accepting what he said
he had said in his statement in the absence of proof by the defence that he had
not done so. The last remark
relates to the fact that in his particulars of
claim in the civil action which he brought arising out of the same facts, the
complainant
had alleged that during or about the period 14 to 17 April
24
he had been assaulted at the Carletonville police station not at Khutsong
police station, and not only on the 14th and 15th, as was
his evidence. The
complainant insisted that he was not responsible for this error. It must have
resulted from a misunderstanding
on the part of his attorneys. His statement, he
said, referred to Khutsong not Carletonville. The magistrate accepted this
explanation,
attributing the lack of effective communication to the sparse
contact that the complainant had had with his attorneys. This may be
so. One
knows only too well how carelessly instructions are often taken, leading to
later amendments. But this is a criminal case.
And, there being a suggestion of
recent fabrication in this instance, the prosecutor was presented with a golden
opportunity to produce
the complainant's statement. He did not avail himself of
it. By
25
contrast, the defence did not have access to it as it was privileged. In my
opinion the difference between the pleading and the evidence
is another point to
be weighed in the scale on the side of the appellants. I would add that the
matter is further compounded by evidence
given by the complainant, not mentioned
in the judgment, that at Welkom also he was punched which caused a "blou oog".
It is not
clear though, that he attributed this assault to the appellants rather
than another policeman.
The magistrate was not impressed by arguments that the photographs taken of
the complainant on 17 April and the findings of the doctor
who examined him on
the same day did not match his description of the assaults on him. The findings
of the doctor went in by consent,
and they were:
26
"Geswolle bo-lip met 'n klein laserasie aan die binnekant van die bo-lip. 'n
Ernstige rugpyn. 'n Swelling oor die regter oog. 'n
Skraapwond oor die linker
voorarm."
In the cross-examination of the complainant the following
appears:
"En die enigste beserings wat u gehad het
was 'n klein
merkie aan die neus (the photographs show this, though the doctor did not
mention it) en 'n lip wat geswel het, bo-lip en 'n onder-lip
en 'n klein merkie
onder. ... Ja."
I have some comments to make upon the correspondence
between
these observations, and the complainant's evidence as to
the assaults he
suffered. Although the doctor mentions a swelling over the
right eye, I
cannot observe it on the photographs, even less a "blou oog".
Bearing
in mind that the "blou oog" had had almost three days to develop, it
seems to me that the account of it was at least exaggerated. Neither the
photographs nor the medical report gives any indication of teeth broken,
27
loose or extracted because of looseness. Yet in his evidence the complainant
spoke of broken teeth (in the plural) and two foreteeth
(in one passage a tooth)
which were removed by a doctor because they were loose. It is difficult to
understand why there should have
been no record of something so important, no
complaint to the doctor, no photograph, when the object of the visits to both
the photographer
and the doctor was to record real evidence. Nor was there any
dental evidence.
I will pass over the question whether the electrically caused injury to his
arm described by the complainant could be the "skraapwond"
described by the
doctor, although not photographed. But what has happened to the assault inside
his anus, an area I would suppose
more tender than the forearm's epidermis? Yet
there is no complaint, and no
28
record of any injury.
I turn to some of his further descriptions of the
assault:
"Hoeveel keer is u geskop in die gesig? ... Ek weet nie hoeveel kere is ek
geskop nie.
Kan u 'n aanduiding gee? Skatting maak?
... Ek is geskop, seer gevoel, daarna ek is aanmekaar geskop dat ek nie meer
seer gevoel het
nie.
Is u 'n groot aantaal kere in die gesig gekop? ... Ja bale kere.
Wil u nie 'n poging aanwend om vir die hof 'n aanduiding te gee hoeveel nie,
meer as tien of is dit minder as tien. ... Nee, ek sal
nie weet nie. Ek was
deurmekaar.
Is dit dan juis van hierdie skoppery wat jy deurmekaar was? ... Ja want ek is
teen die kop geskop en teen die vloer gestamp."
Again there seems to be exaggeration, and this is important when
it is enquired whether the injuries reflected on the photographs and in
the
doctor's report could have been caused by the bakkie's forced stop. Had
29
the doctor been called as a witness the magistrate would probably have been
better placed to decide the case.
The magistrate remarked that the complainant did not contradict himself on
any occasion. This observation may be compared with the
cross-examination about
the assault upon him by the appellants. After he had said that he had been
slapped in the face on several
occasions, he was asked if he had ever been hit
with a fist, and it was in answer to this question that he answered that he had
been
so struck at Welkom, so that his eye swelled up. He was asked if any other
policemen were present when the appellants assaulted him,
and he answered that
there were. He could point them out, but he could not say how many there were.
The questioning proceeded:
30
"Het enige van hulle iets aan u gedoen? ... Nee.
Is u seker daarvan? ... Ek was nou
deurmekaar.
So kan u nie vir die hof se of iemand anders u ook aangerand het nie? ... Nadat
ek uitgehaal is nit die kamer waar ek aangerand is,
ek is mos na die kamer of
die kantoor waar verklaring afgeneem word. Daar is een in daardie kantoor wat my
met vuiste geslaan het.
Wie is dit? ... Hy is a lang ou, ek ken nie sy naam nie. En hy het nie tande
nie.
Toe ek u netnou pertinent gevra het of u met die vuis geslaan is, het u gese ja
in Welkom. Waarom het u toe nie ook verwys na hierdie
voorval nie? ... Soos ek
se ek was deurmekaar gewees en daardie persoon het my op my maag met vuiste
geslaan, ek het net gesien dat
hy is 'n lang persoon. ..." (emphasis
supplied).
To my mind these passages do reflect a
contradiction in the complainant's evidence.
Turning back to the magistrate's
rejection of the appellants' version that the complainant had been injured when
the bakkie left the
road. The
31
magistrate remarked that he found it strange that if that were so the
complainant did not tell the Court that he was assaulted on
the way back from
Welkom. The reason for this observation rather escapes me. If one postulates for
the sake of argument that the
first appellant was telling the truth, then it
would have been dangerous for the complainant to pin his colours to this
occasion,
when the evidence of an accident was to hand: and it would also have
been an unlikely story when the affairs of the long night had
already to all
purposes ended in failure so that there would have been no reason for an
assault.
As I have said already, the magistrate did not make any express findings on
the appellants' credibility. Rather he criticised the
improbability of their
account, as he saw matters. The criticism that
32
seemed to him the most important was, why out of all the
policemen
involved should he have picked on the three appellants who,
particularly
in the case of the second and third appellant, had had little to
do with
him: unless they were indeed guilty? This is a question that many
a
judicial officer has asked in the past and will ask in the future. It
was
asked (and answered for the purposes of that case) in the single witness
case of S v Mokoena already referred to (at 88 E-F):
"One may say: Why should he have picked on the appellant? But
if he had to indicate someone, anyone, why
not the appellant? Here was a man
whom he could identify
...."
And so on. Turning back to the facts of this case, during the course of
cross-examination the complainant said the following:
"Betreffende hierdie voorval, het u vir die polisie
die
33
name van die persone gegee wat vir u aangerand net? ... Ja ek net dit gese.
So net u presies vir haar gese dit staan in die polisieverklaring dat welke
beskuldiges vir u aangerand net en presies wat elkeen
gedoen het. ... Ek net dit
gese wie en wie en wie wat my aangerand het. Dat daar was nog ander
beskuldigdes.
Wat u nie se name ken nie? ... Ek het nie die name van die ander geken
nie."
One unnamed "ander beskuldigde" whose description was
partially
revealed in cross-examination was the tall toothless
one who hit him in
the stomach. The man who hit him at Welkom may have been
another.
How many others were there? What exactly did each of them do? No
answer is given to these questions, but the fact that they may properly
be
asked rather destroys the proposition that the complainant picked on only
three persons, this suggesting that he was selective and truthful. Of his
34
truthfulness, I am not convinced. To my mind it is reasonably possible, and I
need say no more, that the appellants were named because
their names were
known.
This leaves pendant the question, why should the complainant have accused
anyone falsely? This question was not answered by the appellants,
although an
answer was suggested: that the complainant's accusations were politically
inspired in the sense that the ANC was attempting
to drive the then SAP out of
the area. Given the level of distrust, to put it at its lowest, between the
police and at least some
members of the public at the time and the place, it is
not an answer that can be brushed aside, whether in fact it be true or false.
In
addition, although it was not raised by the appellants in their evidence, there
is the
35
possibility that the complainant decided to turn his accidental injuries
suffered while in custody to financial profit. In other words
there are
reasonably possible answers to the question, why?
The law requires me to be confident of guilt before I confirm a man's
conviction. I do not have that confidence in this case because,
unlike the
magistrate, I do not feel unbounded confidence in the evidence of the
complainant, and because I do not think there is
a sufficient basis for
rejecting the version of the appellants and their witness as being not
reasonably possibly true. The magistrate
has misdirected himself in several
respects, and there are traces of his having unconsciously treated the matter as
one of probability
rather than of proof beyond reasonable doubt. Once the proper
test is properly applied there is a reasonable
36
doubt as to the guilt of the appellants. This may be the result of a poorly
presented State case, but that makes no difference
In these circumstances the appeal succeeds, and the convictions and sentences
of the appellants are set aside.
W P SCHUTZ JUDGE OF APPEAL
NESTADT JA)
CONCUR VAN DEN HEEVER JA)