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1995
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[1995] ZASCA 155
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S v Novis (715/94) [1995] ZASCA 155 (29 November 1995)
Case No 715/94
/mb
IN THE SUPREME COURT OF SOUTH AFRICA
(APPELLATE DIVISION)
In the matter of:
JOHN HOWARD NOVIS
APPELLANT
and
THE STATE
RESPONDENT
CORAM
: E M GROSSKOPF, F H GROSSKOPF JJA et
SCOTT AJA
HEARD
: 20 NOVEMBER 1995
DELIVERED
: 29 NOVEMBER 1995
JUDGMENT
SCOTT AJA/
...
2
SCOTT AJA
:
The appellant was convicted in the Regional Court on two
counts of theft and one count of fraud. The counts of theft related to two
cheques which had been drawn by a cigarette distributing company in favour of
its supplier, Trans Atlantic Tobacco Corporation (Pty)
Ltd of Industria,
Johannesburg. One, which was for R265 208,77, was posted at Welkom; the other
for R239 253,95 was posted at Klerksdorp.
Both were intercepted and stolen
between 13 and 20 November 1990. The count of fraud related to various
misrepresentations made in
an attempt to realise the cheques at their face
value. The three counts were taken together for the purpose of sentence and the
appellant
was sentenced to five years imprisonment.
An appeal to the Witwatersrand Local Division was noted against both the
conviction and sentence. On 18 April 1994 it was struck
3
from the roll for want of appearance on behalf of the appellant. An
application for condonation and the reinstatement of the appeal
was heard on 16
September 1994. After hearing full argument the Court a
quo
(per Schutz J
with whom Stegmann J concurred) dismissed the application on the ground that the
appeal had no prospects of success.
The Court also found it unnecessary to
consider the admissibility of two affidavits which the appellant sought to have
admitted in
evidence with regard to sentence as they did not add anything of
significance to the evidence previously placed before the regional
magistrate.
Acting in terms of the powers conferred under
s 304
(4) of the
Criminal
Procedure Act 51 of 1977
the Court a
quo
did, however, direct that the
warrant of committal was to be amended so as to provide that upon the
appellant's admission to prison
the commanding officer was to arrange for the
appellant to spend his first night in the prison hospital and to be seen by a
psychiatrist
on the following day
4
in order for him to make such arrangements as may be necessary to deal with
the appellant's claustrophobia and related conditions.
The appeal to this Court is against both the refusal of the Court a
quo
to reinstate the appeal against the conviction and sentence and the
refusal of the application to receive the affidavits of Dr Stahmer
and Dr
Vorster in relation to sentence. The appellant has also petitioned this Court in
terms of s 22 of the Supreme Court Act 59
of 1959 to have the affidavits of a Dr
Grové which were used in support of an application for bail to be
received in evidence.
Turning to the conviction, much of the evidence adduced by the State was
either common cause or not in dispute. Indeed, it was not
in dispute that the
crimes of theft and fraud had been committed. What was in issue was whether the
appellant was a party thereto.
The facts regarding the fraud are somewhat
complicated. It is convenient, I think, to begin by
5
relating the events as they appeared to the persons to whom the
representations were made.
On 20 November 1990 at about 10 am a Mrs Oosthuizen of the firm of
stockbrokers, Frankel Kruger and Vinderine, received a telephone
call from a
person who said he was Mr Taper. (It transpired that this was a fictitious name
and that the actual caller was a certain
Mr Awerbach; but for the moment I shall
refer to him as Taper.) He informed Mrs Oosthuizen that he had two cheques for
an amount
totalling some R504 400 which he wished to deposit for investment in
the money market. As the market closed at 11.30 am she gave
him the bank account
number of Frankel Kruger and Vinderine and instructed him to deposit the cheques
and telefax the deposit slips
to her. A teller at the Fox Street branch of
Nedbank, Mrs Cassim, testified that on the same day at about 11.40 am a person
whom
she described as a black man presented two cheques for
6
deposit into the account of Frankel Kruger and Vinderine together with two
original depost slips and two copies. The cheques were
those to which reference
has previously been made. They were handed in at the trial as Exhibits E and F
respectively. The deposit
slips were handed in as Exhibits G, H, I and J. The
signature of the depositor appeared to be that of "D Taper" and the slips were
endorsed "Special Clearance". Mrs Cassim testified that she handed the copies,
Exhibits H and J, to the black person who appeared
to be a messenger and asked
him for a contact telephone number so that she could advise when the cheques had
been cleared. He was,
however, unable to provide a number and said that he had
been sent by "Michael". Shortly thereafter a person who said he was Taper
telephoned the bank and suggested that as he was staying at the Carlton Hotel it
would be more convenient to advise Mrs Oosthuizen
of Frankel, Kruger and
Vinderine when the cheques had been cleared. On the same
7
morning the deposit slips, Exhibits H and J, were telefaxed to Mrs Oosthuizen
under cover of a facsimile message bearing the Carlton
Hotel emblem and stating
the sender to be "David Ryan Taper". (The original facsimile message which was
later found in the appellant's
motor car was handed in as Exhibit L.)
Later on the same day, ie 20 November 1990, Mrs Oosthuizen received a second
telephone call from Taper who inquired whether the investment
had been made. She
advised him that the deposit had been too late for the investment to be made
that day. Taper told her that he
proposed investing the money only for two days
whereafter he wished to use it to purchase Kruger rands.
Mrs Oosthuizen subequently received an anonymous telephone call to the effect
that the cheques had been stolen. She telephoned the
South African Police who
requested her to "play along" with Taper. The
8
following day, ie 21 November 1990, Taper telephoned to say that he wished to
withdraw the funds on 22 November. He requested Mrs
Oosthuizen to make out the
cheque in favour of Investec Bank and he said that he would send a colleague to
collect it. She, in turn,
indicated that whoever collected the cheque would have
to produce a letter to the effect that he was authorised by Taper to receive
it.
In the meantime certain employees of Trans Atlantic Tobacco Corporation (Pty)
Ltd had been apprised of what was happening and
had undertaken to assist in
laying a trap for Taper. The drawer of the cheques was also informed and payment
of the cheques was stopped.
Mr Nowitz of Investec Bank with whom Taper had
arranged for the purchase of 450 Kruger rands, was likewise advised by the South
African
Police of what was afoot.
On 22 November 1990 members of the S A Police together with certain senior
employees of Trans Atlantic Tobacco Corporation (Pty)
9
Ltd took up positions at the Carlton Hotel and at the offices of
Frankel
Kruger and Vinderine. Later in the morning or in the early afternoon
a
person came into the hotel to pay the account of Taper. It is common
cause that this was Mr Keith Bain who after paying the account climbed
into the appellant's motor car which the appellant was driving. The car
was
followed but the pursuers lost it in the traffic. At about 1.30 pm it
pulled
up outside the offices of Frankel Kruger and Vinderine and the two
occupants climbed out. Shortly thereafter a messenger in the employ of
another stockbroker entered the offices of Frankel Kruger and Vinderine.
He presented an envelope (Exhibit A) addressed to Mrs Oosthuizen which
contained a letter (Exhibit C) bearing a Carlton Hotel emblem and which
read:
"Please hand bearer cheque in the amount of R456 300 in favour of Investec
Bank, for and on behalf of Mr David Taper as arranged telephonically."
10
The letter purported to be signed by David Taper. The messenger was handed an
envelope (Exhibit D) which contained merely a complimentary
slip and not a
cheque. He was followed downstairs where he handed the envelope to the
appellant. The latter was immediately arrested
by Lt du Toit of the South
African Police.
For some reason which was not explained the appellant was unable to produce
the key of his car which was locked. He was taken home
to fetch a spare key. The
vehicle was then unlocked and searched by Lt du Toit in the presence of the
appellant. Lt du Toit testified
that he found Exhibits H and J (the deposit
slips previously referred to) in a tog bag in the boot of the car. In the car
itself
he found a diary which contained both an envelope addressed to Mr Nowitz
of Investec Bank (Exhibit K) and the original facsimile
message (Exhibit L)
under cover of which Taper had sent the deposit slips to Frankel Kruger and
Vinderine on
11
20 November 1990. He said that he asked the appellant for an explanation. The
appellant replied that the tog bag belonged to Keith
Bain but declined to give
any further explanation until he had consulted his attorney. Lt du Toit was
emphatic that the diary in
which Exhibits K and L were found was that of the
appellant. He said that the appellant pressed for the return of the diary and
eventually
it was returned to him. After the close of the defence case Lt du
Toit was recalled to clear up certain aspects relating to the search
of the
appellant's motor car on 22 November 1992. He testified that he had a
recollection of there being another diary which belonged
to
Bain and which had been returned to him as it contained nothing of any
relevance to the case.
The State called two further witnesses who initially had
been
charged together with the appellant. Both were warned in terms of s 204
of the
Criminal Procedure Act. The
first was Keith Bain. His evidence
12
was not disputed by the appellant. He said that on the day in question and
while he was at a gymnasium in Yeoville he was telephoned
by the appellant who
arranged to collect him so that the two of them could place bets at the horse
races. He explained that this
was something they frequently did together. As
arranged the appellant arrived in his car. He told Bain that before placing
their
bets there were a few things that he had to attend to. Bain had no
objection. First, they drove to the Carlton Hotel where the appellant
asked Bain
to run in and pay the account of a Mr Taper while the appellant double-parked.
Next, they drove to Hillbrow where according
to the appellant he had to pick up
a letter at a place which Bain described as some agency or other. This time the
appellant went
in while Bain waited. After returning the appellant explained
that the final thing he had to do was go to the stock exchange. Bain
testified
that when they arrived there the appellant asked him to take up an envelope to
Frankel
13
Kruger and Vinderine (Exhibit A). He said that the appellant explained that
because he was engaged in litigation involving stockbrokers
he was reluctant to
go into the building where he would be seen. Bain, too, was reluctant to deliver
the letter as he was clad only
in a vest and track-suit trousers. He testified
that eventually he took the letter and gave it to a man dressed in a suit
standing
outside the building (a messenger in the employ of another stockbroker)
who undertook for a reward of R20 to deliver it to the stockbrokers
in question.
He, Bain, then went to place a bet by telephone using, he said, his "tele-bet
account". When he returned about 10 minutes
later there was no sign of the
appellant. He waited for some while but eventually gave up and made his own way
home. He subsequently
learned that the appellant had been arrested. Mr Bain also
confirmed that his diary had been in his tog bag which he had put in the
boot of
the car. He was unable to recall whether there was any other tog
14
bag in the car.
The other witness who was warned in terms of
s 204
of the
Criminal Procedure
Act was
Mr Michael Awerbach. He testified that he had worked at the stock
exchange and he and the appellant were known to each other. He
said that he was
approached in November 1990 by the appellant who sought Awerbach's assistance in
putting two cheques through the
money market "system". The appellant would not
tell him where he had obtained the cheques and offered him R100 000 for his
help.
The plan was that the cheques would be deposited in the account of a
stockbroking firm and once they had been cleared the stockbroker
would be
requested to make out a cheque payable to a coin dealer so that in this way the
face value of the cheques could be realised
in gold coins. Mr Awerbach
acknowledged that he was aware that the plan would involve a fraud. He said it
was he who invented the
name Taper and in the presence of the
15
appellant telephoned Mrs Oosthuizen. Thereafter, while the appellant booked
the fictitious Mr Taper into the Carlton Hotel, he, Awerbach,
obtained the
services of a friend's employee to deposit the cheques at the Fox Street branch
of Nedbank. He said that he subsequently
handed the copies of the deposit slips
(which he had completed) to the appellant as well as the facsimile message
(Exhibit L) under
cover of which the deposit slips had been telefaxed to Frankel
Kruger and Vinderine as described by Mrs Oosthuizen. He acknowledged
also that
it was he who had telephoned Investec Bank to order 450 Kruger rand coins and
had later telephoned Mrs Oosthuizen to instruct
her to withdraw the investment
and have the cheque made out in favour of Investec Bank. He testified, however,
that after making
the necessary arrangements with Mrs Oosthuizen he had left it
to the appellant to actually collect the cheque and pay Investec. Some
days
later he went to collect his R100 000 share from the appellant only to
16
discover that he had been arrested and was on bail.
In answer to the case against him the appellant in his evidence did not
dispute the evidence of Bain or that he was arrested while
in possession of
Exhibit D outside the offices of Frankel Kruger and Vinderine. He maintained,
however, that he was no more than
an innocent pawn in a fraudulent scheme
perpetrated by Awerbach who had sought to use him in order to avoid exposing
himself to the
risk of being recognised. The appellant testified that shortly
before his arrest Awerbach came to his flat while he was entertaining
a Mr
Sergio Herscovitch. Awerbach joined them for a short while and then called the
appellant aside and asked him to do him a favour
the following day as he would
be out of town. What he wanted the appellant to do was: (i) pay the account of a
Mr Taper at the Carlton
Hotel, for which Awerbach would give him money; (ii) go
to Hillbrow and collect a letter which would be ready and waiting at a
17
secretarial services agency, and (iii) collect a letter from certain
stockbrokers at the stock exchange. Although the appellant did
not say so
expressly it was implicit in his evidence that he was required to deliver the
letter he was to collect at the secretarial
services agency to the stockbrokers
and to deliver to Awerbach the letter he was to collect at the stockbrokers. The
appellant testified
that the moment mention was made of the stock exchange he
immediately protested that he could not go there because of the litigation
in
which he was then engaged. He said he invited the appellant to ask Herscovitch
to confirm this. Awerbach, however, offered him
R5 000 for his assistance and he
eventually agreed to assist.
Herscovitch was called in support of the appellant's version. He confirmed
the visit of Awerbach to the appellant's flat and that
the appellant had asked
him to tell Awerbach why he, the appellant, could not go to the stock exchange.
He said that he had also
overheard Awerbach
18
offering the appellant R5 000. He testified further that subsequently, ie
early in 1992, Awerbach had telephoned him from overseas
and requested him to
collect a cheque made out to Investec Bank at the stock exchange in return for
50 gold coins worth approximately
R50 000. This incident, I should add, was
never put to Awerbach in cross-examination.
The regional magistrate found both the appellant and Herscovitch to be
unimpressive witnesses and referred to certain improbabilities
in their account
of what they said had taken place at the appellant's flat. By contrast, he
thought that Awerbach had given his evidence
well, although the latter on his
own admission was very much involved in the fraudulent scheme and his evidence
accordingly had to
be approached with caution. The magistrate referred in
addition to various other shortcomings in the appellant's version but the
principal justification for its rejection was the incriminating documents found
in his motor car
19
immediately after his arrest.
The only basis upon which these documents could be explained, other than that
the appellant was a party to the fraudulent scheme,
was that they had been left
there by Bain. In other words, what had to be contended on behalf of the
appellant was that purely by
coincidence the very person whom the appellant had
fortuitously arranged to collect at the gymnasium and who would have had no idea
where the appellant was going to take him before going to the races, was the
person who had been working hand in glove with Awerbach
on the previous two days
and who at the time also fortuitously happened to have with him in his tog bag
and in his diary the incriminating
documents found by Lt du Toit. Not only would
such a coincidence have been truly remarkable but, as I shall show, the
possibility
of it having occurred was inconsistent with other cogent evidence
placed before the court. It was also at no stage put to Bain
20
in cross-examination that he was in any way involved in the fraudulent scheme
or that the documents found in the car were his; but
the contention that the
appellant knew nothing of the documents necessarily implied that Bain was
involved.
It is true that the deposit slips were found in a tog bag which at the time
of the search the appellant said belonged to Bain. The
appellant testified,
however, that on the morning in question he had trained at his own gymnasium
before going to collect Bain at
the latter's gymnasium as arranged. It would
seem likely therefore that there would have been two tog bags in the car. But
the real
difficulty with the appellant's version lay with the documents found in
the diary.
Lieutenant du Toit testified that at the time of the search the appellant had
offered no explanation regarding the diary. He testified
that the appellant had
repeatedly requested its return and that it had in fact been
21
returned to the appellant. In cross-examination it was put to Lt du Toit that
the appellant was not sure whose diary it was. The appellant
later testified,
however, that he had subsequently sat down and thought about the matter and
having done so was able to deny emphatically
that the diary in which the
documents were found was his. He denied also that the diary had been returned to
him and said that at
the time of the search he had told Lt du Toit that the
diary was not his.
This evidence of the appellant was wholly unconvincing. If the incriminating
documents had been found not in the appellant's diary
but in Bain's diary as the
appellant subsequently contended and if at the time of the search he had
specifically told Du Toit that
the diary was Bain's, it is inconceivable that he
should subsequently have been unsure whose diary it was and be unable to
instruct
his counsel accordingly.
One of the documents found in the diary was Exhibit K which
22
was an envelope addressed to Mr Nowitz of Investec Bank. This is of
particular significance as quite clearly it would have been intended
for the
cheque which the appellant was to have collected from Frankel Kruger and
Vinderine. On the appellant's version it is difficult
to see what it would have
been doing in the possession of Bain as the appellant would have handed the
envelope received from the
stockbrokers to Awerbach. According to Awerbach,
however, he had left the collection of the cheque and the payment of Investec to
the appellant. On this version it makes sense that the appellant should be in
possession of Exhibit K.
A further inconsistency in the appellant's version is the absence of any
explanation as to how Exhibit C came to be signed. This was
the letter which the
appellant had collected at the secretarial services agency and which was
delivered to Frankel Kruger and Vinderine.
The probabilities are overwhelming,
given the facts which are common cause,
23
that the agency had been employed to type the letter. Awerbach could not have
signed it; yet it was signed "D Taper". The inference
is inescapable
that it was the appellant who did so.
In this Court counsel for the appellant was unable to provide any answer to
the difficulties associated with the appellant's version
referred to above.
Instead he pointed to certain minor imperfections in the evidence of Awerbach
and largely repeated the arguments
advanced in the Court a
quo
. Nothing
that was said by counsel persuades me that the regional magistrate was incorrect
in rejecting the evidence of the appellant.
Counsel for the appellant also argued that the conviction should be set aside
on the grounds of an irregularity. This contention was
founded on the
disappearance of Exhibit A during the course of the trial. It appears that this
exhibit, which was the envelope containing
the letter which the appellant had
collected at Hillbrow, was removed by the prosecutor
24
apparently for further investigation. What further investigation was
contemplated is unknown. The loss of an exhibit, depending upon
its importance,
can no doubt have far reaching consequences including the setting aside of the
conviction (cf
S v Marais
1966 (2) SA 514
(T) at 516 G - 517 B;
S v
Msane
1977 (4) SA 758
(N) at 758 H - 759 C;
S v H
1981 (2) SA 586
(SWA) at 593 H - 594 H.) The question that arises in each case, however, is
whether the consequence of the loss of the exhibit is
such as to prejudice the
accused so as to amount to a failure of justice (see
s 309
(3) of the
Criminal
Procedure Act).
>It was argued both in this Court and in the Court a quo that there may have
been handwriting on the envelope which if proved to be
that of Awerbach would
have demonstrated that Awerbach's version that he had no part in the collection
of the cheque from the stockbrokers
was untrue. I must say that I have some
difficulty in appreciating how on the
25
basis of the appellant's own version Awerbach's handwriting could have been
on the envelope. It is true that it was a "Carlton Hotel"
envelope. But it was
never the appellant's case that it had been given to him by Awerbach. It was
implicit in his evidence that he
collected it from the agency in Hillbrow. Had
Awerbach delivered it to the agency on some previous occasion it would hardly
have
been necessary to call back to collect it at some later stage as the letter
(Exhibit C) and the address on the envelope would have
taken no longer than a
minute or two to type. But the real difficulty with the argument, I think, is
that not only was the appellant's
counsel given a copy of the envelope but it
appears from the record that all the original exhibits were given to counsel to
enable
him during the course of an adjournment to take instructions from the
appellant. Had there been any handwriting on Exhibit A the
appellant, his
counsel and attorney would have had every opportunity to observe it. The
argument must accordingly
26
fail.
As far as the conviction is concerned, therefore, I can see no basis
for interfering with the conclusion of the Court a
quo
that the appeal
has no prospects of success.
I turn now to the question of sentence.
When
sentence was imposed the appellant was a 34 year old bachelor who was employed
as a financial manager by Reichlin Investments
(Pty) Ltd at a basic monthly wage
of R7 000. He had obtained employment with the company in January 1992 and Mr
Reichlin who appeared
to be an old family friend was one of the witnesses called
in mitigation of sentence. The appellant was not a first offender. In
1982 he
was convicted of theft of cash in an amount of R24 532 and sentenced to a fine
of R5 000 plus 2 years imprisonment conditionally
suspended for 5 years.
Significantly, one of the conditions of suspension was that he
27
undergo psychiatric treatment. In 1988 he was fined R2000 for contravening a
statutory provision relating to the sale of shares on
the stock exchange. The
latter conviction is not relevant.
The other witnesses called in mitigation were the appellant himself and a
psychiatrist, Dr Stahmer, whom the appellant had consulted
for the fist time
about a week before. The appellant testified as to his claustrophobia and
various other less serious phobias. He
explained that because of his
claustrophobia be usually slept with the door open and light on. He cannot
travel in the back of a
car and leaves the door open when he goes to the
lavatory. As far as possible he avoids lifts and when travelling by air takes
tranquilizers.
His evidence in this regard was confirmed by Mr Reichlin and in
particular by Dr Stahmer who gave detailed evidence regarding his
consultation
with the appellant and the conclusion to which he came as to the latter's
condition. He described the
28
appellant as suffering from manic-depressive episodes which have their origin
in an atypical bipolar emotional disturbance. He confirmed
that the appellant
also suffers from claustrophobia as well as various other phobias such as an
unreasonable fear of needles, snakes
and spiders. He testified that the
facilities available in prison were inadequate and should the appellant be sent
to prison he would
not receive the benefit of the prolonged treatment and
medication that he required. He expressed the view that in the event of the
appellant being locked up in a cell for one or two days he may well commit
suicide or become psychotic.
In response, Col Lorinda Berg, a clinical psychologist in the department of
Correctional Services, gave evidence as to the facilities
available in prison
for a person such as the appellant. She readily conceded that although
available, there was a shortage of psychiatrists;
but pointed out that while
psychiatrists were responsible for the pharmacotherapy, the
29
actual psychotherapy was administered by psychologists and that at a prison
such as the Johannesburg prison there were two resident
clinical psychologists
who were able to administer such therapy. It was on the basis of her suggestion
that the Court a
quo
made the order to which I referred earlier in this
judgment.
In his judgment on sentence the regional magistrate correctly pointed out
that the offences had been carefully planned, involved a
large sum of money and
fell into the category of so-called "white collar crimes" for which there was a
need, he felt, for sentences
to serve as a deterrent. He considered the personal
circumstances of the appellant and in particular his claustrophobia and other
personality disorders but nonetheless felt that he could not accede to counsel's
request that a heavy fine be imposed and came to
the conclusion that
imprisonment was the only appropriate sentencing option in all the
circumstances.
30
In this Court counsel for the appellant was unable to refer to any
misdirection on the part of the magistrate. He submitted, however,
that having
regard to the appellant's claustrophobia and the effect that imprisonment would
have on him a sentence of a heavy fine
would have been more appropriate. The
fact that the person to be sentenced suffers from claustrophobia and the
possible consequences
which imprisonment may have for him are undoubtedly
important factors to be taken into consideration (cf
S v S
1977
(3) SA
830 (A)). But non
constat
that a person with claustrophobia is rendered
immune from imprisonment regardless of his crime and other relevant
circumstances.
As pointed out by the magistrate, the fraudulent scheme to which
the appellant was a party was a carefully planned operation involving
over half
a million rands. But for the intervention of the police and the co-operation of
the potential victims the appellant would
have got away with his crimes. On a
previous
31
occasion he received the benefit of a fine and suspended imprisonment. As I
have indicated, one of the conditions of suspension was
that the appellant
undergo psychiatric treatment. But this did not deter him from trying his hand
at serious crime again. I accept
that the facilities in prison for treating a
person such as the appellant are not of the best and that imprisonment by its
very nature
will create special problems for him. Nonetheless, the condition of
the appellant will be brought to the attention of the prison
authorities who no
doubt will do their best to accommodate those problems. I can see no
justification for interfering with the sentence
of 5 years imprisonment imposed
by the magistrate.
Counsel submitted further that the Court a
quo
erred in not admitting
the affidavits of Dr Stahmer and Dr Vorster. There is no merit in this
submission. While the Court has a wide
discretion in terms of s 22 of the
Supreme Court Act of 1959 to admit further evidence it will in the
32
interests of finality do so only in special circumstances. In
S v De Jager
1965 (2) SA 612
(A) at 613 C - D Holmes JA formulated the test as
follows:
"(a) There should be some reasonably sufficient explanation, based on
allegations which may be true, why the evidence which it is
sought to lead was
not led at the trial.
(b)
There should be a
prima
facie
likelihood of the truth of the evidence.
(c)
The evidence should be materially relevant to the outcome of the
trial."
The affidavit of Dr Stahmer
contains little if anything which
is relevant that was not dealt with in his oral evidence. Nor has any
reason
been advanced why if there is something additional it was not dealt with
at
the trial. As to the affidavit of Dr Vorster, counsel for the appellant
informed the trial court that he had decided not to call her as a witness.
In
these circumstances her evidence cannot be admitted after sentence
without
33
a satisfactory explanation, which has not been forthcoming. The contents of
her affidavit were in any event put to Col Berg in cross-examination
and
generally accepted by her. Neither affidavits, therefore, pass the tests
formulated in (a) and (c) above.
Finally there is the further application before this Court to have two
affidavits deposed to by Dr Grove" admitted in evidence on
the question of
sentence. To the extent that Dr Grové deals with subsequent developments
in the condition of the appellant,
such evidence is inadmissible in accordance
with the principle that save perhaps in the most exceptional cases evidence of
facts
not in existence when judgment was given will not be considered on appeal.
(See
R v Verster
1952 (2) SA 231
(A);
Goodrich v Botha and Others
1954 (2) SA 540
(A).) The present case is clearly not one which is exceptional.
To the extent that Dr Grové deals with matters other than
subsequent
developments, the evidence sought
34
to be admitted does not pass the tests formulated in (a) and (c) in the
De
Jager
case
supra
. The application must accordingly fail. In the
result the appeal is dismissed.
D G SCOTT
E M GROSSKOPF JA
- Concur F H GROSSKOPF JA