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[2013] ZAWCHC 219
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Ghumman v S (A439/2013) [2013] ZAWCHC 219; 2022 (2) SACR 664 (WCC) (26 June 2013)
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THE
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH COURT, CAPE TOWN
CASE
NO: A439/2013
In
the matter between:
SHUMSHEER
SINGH
GHUMMAN
Appellant
and
THE
STATE
Respondent
JUDGMENT:
26 JUNE 2013
VELDHUIZEN
J:
[1]
On 29 February 2012 the appellant was convicted in the regional court
sitting in Cape Town on the following charges: fraud (count 1), a
contravention of s 18(2)(b) of the Riotous Assemblies Act, 17
of 1956
(count 2), attempted murder (count 3) and malicious injury to
property (count 4). The magistrate took all the counts together
for
the purpose of sentence and sentenced the appellant to nine years
imprisonment.
[2]
The appellant's application for leave to appeal against his
convictions
on counts 1, 2 and 3 and the sentence was refused by the
magistrate but granted on petition in terms of
section 309C
of the
Criminal Procedure Act, 51 of 1977
.
THE CHARGES AND
PREAMBLE
[3]
The three charges which are the subject of this appeal are set out in
the charge sheet and reads as follows:
'COUNT
ONE
: FRAUD
IN
THAT on or about or during the period 29 October 2010 to 12 January
2011 and at or near Cape Town and/or Athlone and/or Philippi,
in the
Regional Division of the Western Cape, the accused unlawfully and
with the intention to defraud, gave out and pretended
to Joseph,
and/or Kretzman, and/or Phaliso and/or Yalezo, to their prejudice or
potential prejudice, that the accused-
1.
Was Michael Kirkham;
2.
Was a freelance photojournalist;
3.
Was interested in doing a piece on violent crime in Cape Town;
4.
Required for this purpose to find a "fixer" who
could introduce him to gangsters to talk to for the purpose of his
photojournalist
project;
5.
Would honour an agreement to pay a fee for the introduction to
and/or interview with the gangster or gangsters; and/or
6.
The purpose of meeting the gangster or gangsters was merely
related to his supposed lawful photojournalist project;
WHEREAS
IN TRUTH AND IN FACT the accused, when he made the representations as
aforesaid, welI knew that the representations were
false
IN
THAT the accused-
1.
Was not Michael Kirkham, but in fact Shumsheer Singh Ghumman;
2.
Was not a freelance photojournalist, but in fact a fund
manager;
3.
Was not interested in doing a piece on violent crime in Cape
Town;
4.
He did not seek to be introduced to gangsters for, or merely
for the purposes of his photojournalist project, but rather for the
purpose of inciting him or them to harm Rhind and/or Hannah Rhind
and/or members of the Rhind family and/or otherwise to intimidate
them and/or to murder Rhind or otherwise to get rid of Rhind or to
sort the Rhind family out permanently, as described further
in the
Preamble; and/or
5.
Did not intend to honour an agreement to pay a fee for the
introduction to and/or interview with the gangster or gangsters, and
did not in fact do so.
AND
IN
THAT the accused did thereby commit the crime of
Fraud, as described further in the Preamble.
COUNT
TWO
: CONTRAVENING SECTION 18(2)(b) FO THE RIOTOUS ASSEMBLIES ACT,
NO 17 OF 1956 - INCITING ANOTHER TO COMMIT MURDER
IN
THAT on or about or during the period 12 to 13 January 2011 and at or
near Cape Town and/or Camps Bay and/or Clifton, in the
Regional
Division of the Western Cape, the accused, unlawfully and
intentionally incited, instigated, commanded and/or procured
Yalezo
to commit an offence, to wit: that he should unlawfully and
intentionally kill Rhind, a male person, as described in the
Preamble.
COUNT
THREE:
ATTEMPTED MURDER
IN
THAT on or about 14 January 2011 and at [....] K[....] Road, Clifton,
in the Regional Division of the Western Cape, the accused
unlawfully
and intentionally attempted to kill Rhind and/or Ms Rhind by throwing
and/or placing and/or igniting home made
bomb devices at the
residence of the Rhinds while they were asleep inside, as described
in the Preamble
ALTERNATIVELY
TO
COUNT
THREE:
ARSON
IN
THAT on or about 14 January 2011 and at [....] K[....] Road, Clifton,
in the Regional Division of the Western Cape, the accused
unlawfully
and with intent to injure Rhind in his property, set fire to and
thereby damage or attempt to destroy the Rhind residence
at [....]
K[....] Road, Clifton, being an immovable structure, and the property
of or in the lawful possession of Rhind IN THAT
the accused threw
and/or placed and/or ignited home made bomb devices at the said
Rhind residence, as further described in
the Preamble.'
[4]
Much of the history and facts set out in the preamble are either
common
cause or not seriously disputed. In the preamble to the
charges it is alleged that the trouble in which the appellant found
himself
had its origin in London.
There
he befriended a lady Ms Hannah Rhind, a company executive. After the
two had met a few times and exchanged messages Ms Rhind
ended the
relationship. The appellant thereafter sent sarcastic messages to her
on her cell phone. Ms Rhind complained to her father.
Her father
spoke to the appellant on the telephone and eventually laid a
complaint of harassment with the Metropolitan Police,
London against
the appellant. As a consequence the police warned the appellant to
refrain from contacting the Rhind family.
[5]
Mr Rhind also made a complaint to the appellant's employer. As a
result
of this complaint the appellant again sent an e-mail to Mr
Rhind. He was thereafter formally warned by the London police.
[6]
The appellant failed to heed the warning and sent further derogatory
e-mails
to Mr Rhind. As a result he was charged and convicted of
harassment by a court consisting of three lay magistrates. He was
sentenced
and an order restraining him from contacting the Rhind
family was also issued. The appellant appealed his conviction and
sentence
to the Crown Court. This is apparently not an appeal in the
strict sense of the word but rather a re-trial. His appeal was set
down for 27 January 2011. On 6 January 2011 the barrister
representing the appellant informed the Crown Prosecution Service
that
the evidence given by Ms Rhind and her father before the
magistrates would be admitted. They were, therefore, not required to
testify
again.
[7]
It is alleged that the appellant had already, in London, hatched his
plan
to injure the Rhind family. It is common cause that he contacted
a journalist Raymond Joseph in Cape Town under the false name of
Michael Attwood and pretended that he was a photojournalist. He
conveyed to Raymond that he wished to interview gangsters in Cape
Town for a story he was doing about violent crime in the city. To
qualify for his project the gangsters should be older than 25
years,
currently involved in crime and be comfortable with the idea of
perpetuating violence. Joseph put the appellant in contact
with one
Kretzman and he corresponded with Kretzman via e-mail using the name
Kirkham. Eventually Kretzman agreed to introduce
the appellant to
gangsters for a fee of R1 600.
[8]
On 28 November 2010 the appellant downloaded pictures of Rhind and
his
daughter from the internet as well as pictures of the Rhind
residence at [....] K[....] Road, Clifton.
[9]
The appellant arrived in South Africa on 9 January 2011. He had
incendiary
matches and tape in his luggage. The tape had an address
in London and the words '4 Hannah' printed on it.
[10]
The appellant met Kretzman and was introduced to one Phaliso who
eventually introduced him to Mr TS
Yalezo ('Yalezo') at Brown's Farm
in Philippi. After some discussion the appellant returned to Kretzman
and paid him R500 promising
to pay him the balance ie R1 100 the next
day.
[11]
It is alleged that Joseph, and/or Kretzman, and/or Phaliso
and/or Yalezo were to their prejudice deceived by the appellant and
unwittingly
became involved in his plan to murder or injure the Rhind
family.
[12]
The appellant and Yalezo met again on 12 January 2011 and went
to a pub. There the appellant told Yalezo that he
'had
a
problem
with
a
white
male
who
resides
in
England
and sometimes
in
South
Africa'
and that he wanted Yalezo to
'sort this
man out because
he is causing
him
problems.'
[13]
The appellant and Yalezo met again in the late afternoon of 13
January 2011. The appellant drove Yalezo to the Rhind house in
Clifton.
During their trip the appellant gave Yalezo the photos that
he had downloaded from the internet. It is alleged that he asked
Yalezo
if he would kill Rhind for him and offered to pay him R 10
000. Yalezo refused.
[14]
Having failed in his .effort to engage Yalezo in his plot to
kill Rhind the appellant decided to execute his plan without any
assistance.
DISCUSSION
[15]
The evidence of the appellant's actions in the early hours of
14 January 2011 is largely common cause.
[16]
The appellant proceeded to Mr Rhind's residence in Clifton.
Rhind and his wife were asleep inside the house. The appellant had
three
home-made petrol bombs with him. He had manufactured these
using wine bottles, incendiary matches and the printed tape. He,
after
spending some time at the house, lit the bombs. He threw two of
them at the house and they landed on the balcony of the residence
where they exploded. The ensuing fire caused considerable damage to
the walls and floor as well as the furniture on the balcony.
I should
mention that the third bomb tailed to explode and was later found in
a bush on the side of the house.
[17]
The appellant also slashed two front tyres and a rear tyre of
Rhind's motor vehicle which was parked in the driveway.
[18]
At his trial the appellant pleaded guilty to the charge of
malicious injury to property but not guilty to the first three
charges.
[19]
It is clear from the first three charges and its preamble that
the evidence of Yalezo was of pivotal importance to the state's case.
He was the only state witness who could give evidence of what had
transpired between him and the appellant. In support of these
charges
the state presented the hearsay evidence of Rhind, Mr Bernard
Schaeffer ('Schaeffer'), constable Singqi and constable Hare
regarding what Yalezo had conveyed to them. The prosecutor informed
the magistrate that Yalezo would himself testify. The hearsay
evidence of these witnesses was thereafter provisionally admitted by
the magistrate in terms of s 3(3) read with s 3(1 )(b) of
the Law of
Evidence Amendment Act, No 45 of 1988 ('the Act').
[20]
Rhind testified that Yalezo approached him on 26 January 2011.
According to Rhind, Yalezo informed him that there was someone who
wanted to do bad things to him. According to Yalezo this man wanted
him to do an urgent 'hit and that he had come to warn him.
He further
conveyed to Rhind that this man was an Asian looking Australian. From
what he conveyed to Rhind it was clear that he
knew that Rhind works
for a refinery and has a daughter in the UK. At that stage Schaeffer
arrived and took over the questioning
of Yalezo.
[21]
According to Schaeffer's testimony Yalezo gave him a more
detailed version namely that 'I have been sent to sort him out'. On
further
questioning by Schaeffer as to what it meant, he explained
that he had to do a 'hit' meaning he had to kill Rhind. After
questioning
him Schaeffer handed him over to the police.
[22]
Captain Ntongana testified that he had instructed the late
constable Nucoba to take a statement from Yalezo. Constable Singqi
had
apparently overheard Yalezo's statement to Nucoba. Singqi
testified that Yalezo had told Nucoba that he was hired to sort
someone
out in Camps Bay. On inquiring what he meant he said he was
hired to kill this person. The person who hired him pretended to be
a
journalist and he showed Nucoba a photograph and stated it depicted
the place where the hit was to be carried out. He, Singqi,
made no
mention of Yalezo being offered any money. He had made a statement on
14 July 2011 which read as follows:
'On 26 January 2011 I was
on duty and sitting at detective office at Camps Bay SAPS. I remember
when Constable Majola brought an
unknown black male into our offices.
I was sitting with the late Constable Nucoba. The late Constable
Nucoba interviewed the person
and when I listened to him, he was
hired by an unknown person to kill the other one, but he was not
interested to kill anybody.
This person introduced himself as
Siyabulela Yaliso staying in Philippi.'
[23]
When his testimony is compared to his statement his memory had
clearly undergone an improvement - a most unlikely occurrence if one
considers that nearly six months had elapsed from the time he
overheard the statement to Nucoba and his putting pen to paper. It
is
also necessary to mention that the statement to Nucoba had
disappeared.
[24]
Yalezo was then called to testify. He did not confirm the hearsay
evidence. The prosecutor questioned
him regarding the statements he
had made and concluded his examination in chief by stating that 'the
witness may have diverted
from his statement and I prefer to leave
any further procedures to re-examination. Despite the defence's
objection the magistrate
allowed the prosecutor to put portions of
two statements that had been taken from the witness. The witness
denied that he had said
what was put to him. The magistrate then,
again overruling the defence's objection, allowed the witness's two
statements to be
handed in as exhibits J and K.
[25]
On application of the prosecutor the magistrate ruled:
'The witness made
certain remarks in his statement which he denies in court today. On
the basis of that this witness evidence is
discredited and struck off
the record.
'
The
prosecutor then stated that he had requested the police to 'give him
the necessary attention'. This clearly meant he intended
to have
Yalezo prosecuted for giving false evidence or making conflicting
affidavits.
[26]
The trial court later heard the evidence of constable Hare. He
testified that he had taken
down exhibit J on 26 January 2011. It was
typed and attested to by Yalezo on 27 January 2011. The defence
objected to this evidence
but it was received by the magistrate. In
cross-examination Hare conceded that he had back dated the statement
and had falsified
certain details pertaining to the commissioning
thereof.
[27]
Hare also testified regarding the second statement, exhibit K. He
testified that Yalezo:
'... said that the day when I came there he
was tired. He gave me a lot of stories and the next time when I took
his statement
it was much clearer because he had taken notes.' He
further explained: There were other few changes, Mr Yalezo came and
said he
did not say it this way he said it this way and we rectified
it.' According to him Yalezo had written the changes on a piece of
paper which was no longer available because he had given it to his
typist. This second statement now also made mention of Yalezo
having
been offered R10 000 to do the hit.
[28]
The state thereafter applied to have the hearsay evidence of
Schaeffer and Singqi as well
as the two statements that were taken by
Hare admitted in evidence in terms of s 3(1)(c) of the Act. The
defence opposed the application.
The magistrate ruled:
'After considering
everything that was said this morning I have decided to allow the
evidence at this stage. It is relevant in the
sense that it can help
me to get to the bottom of this case. There's
a
big difference
between relevancy and the value of the evidence. The value I cannot
ascertain at this stage. It is not
a
finding that the hearsay
is credible or reliable but it is relevant and in that sense I will
allow it at this stage. Full reasons
for the decision will be given
when I give judgment in this matter.'
[29]
The magistrate made no mention that he, at that stage and before
admitting the hearsay
evidence, had regard to the safeguards and
requirements contained in s 3(1)(c)(i) to (vi) of the Act. In his
main judgment, read
with his judgment on the application for leave to
appeal, the magistrate changed his original ruling and allowed only
the hearsay
evidence given by Schaeffer.
[30]
I have two concerns with the way in which the hearsay evidence as
well as the evidence
of Yalezo was treated. The manner in which the
state approached this matter leaves much to be desired. In my opinion
the record
of what had transpired during the trial leads to the
irresistible inference that the prosecutor all along knew or, at the
very
least, had no reason to think that Yalezo would confirm the
hearsay statements. It was in the circumstances wrong of him to
inform
the court that Yalezo would testify and by implication confirm
the hearsay statements. As a consequence of the assurance that he
gave to the court the defence, as it was entitled to do, curtailed
the cross-examination of the witnesses giving the hearsay evidence
and reserving a thorough cross-examination for Yalezo. The fact that
it may be difficult to imagine what more the defence could
have done
if they had been alerted to the fact that Yalezo would not confirm
the hearsay statements, does not detract from the
force of this
criticism. Unless it is patently and unquestionably clear that
counsel would in any case have done no more or nothing
different from
what he had done, this court should not second-guess the manner in
which counsel would have conducted the defence
of his client had he
known that Yalezo would not confirm the hearsay testimony of the
witnesses. In my opinion it was wrong and
impacted on the appellant's
fair trial right for the prosecutor (whether by design or oversight)
to have the trial court admit
the evidence of the witnesses, in terms
of s 3(3) of the Act, in this manner only to argue later that it
should be admitted in
terms of s 3(1)(c) of the Act.
[31]
Section 3 of the Act provides:
'3 Hearsay evidence
(1)
Subject to the provisions of any other law, hearsay evidence shall
not be admitted as evidence
at criminal or civil proceedings, unless-
(a)
each party against whom the evidence is to be adduced agrees to
the admission thereof as evidence at such proceedings;
(b)
the person upon whose credibility the probative value of
such evidence depends, himself testifies at such proceedings; or
(c)
the court, having regard to-
(i)
the nature of the proceedings;
(ii)
the nature of the evidence;
(iii)
the purpose for which the evidence is tendered;
(iv)
the probative value of the evidence;
(v)
the reason why the evidence is not given by the person upon whose
credibility the probative
value of such evidence depends;
(vi)
any prejudice to a party which the admission of such evidence might
entail; and
(vii)
any other factor which should in the opinion of the court be taken
into account,
is of the opinion that
such evidence should be admitted in the interests of justice.
(2)
The provisions of subsection (1) shall not render admissible any
evidence which is inadmissible
on any ground other than that such
evidence is hearsay evidence.
(3)
Hearsay evidence may be provisionally admitted in terms of subsection
(1)
(b)
if the court is informed that the person upon whose
credibility the probative value of such evidence depends, will
himself testify
in such proceedings: Provided that if such person
does not later testify in such proceedings, the hearsay evidence
shall be left
out of account unless the hearsay evidence is admitted
in terms of paragraph
(a)
of subsection (1) or is admitted by
the court in terms of paragraph
(c)
of that subsection.'
It
is important to note thats 3(1) of the Act re-affirms that hearsay
evidence is generally inadmissible. Hearsay evidence should
therefore
only be admitted after a court has considered the safeguards set out
ins 3(1)(c) of the Act. This was recognised by Cameron
JA in
S
v Ndhlovu
and Others
2002 (2) SACR
325
(SCA) at 335 D - 336 8:
'The statute does not
license the wholesale admission of hearsay. Long before the
Constitution came into effect the common law was
alert to the dangers
such an approach would have entailed. Not only is hearsay evidence -
that is, evidence of a statement by a
person other than a witness
which is relied on to prove what the statement asserts - not subject
to the reliability checks applied
to first-hand testimony (which
diminishes its substantive value), but its reception exposes the
party opposing its proof to the
procedural unfairness of not being
able to counter effectively inferences that may be drawn from it. For
these very reasons, this
Court emphasised more than four decades ago
that "hearsay, unless it is brought within one of the recognised
exceptions, is
not evidence, ie legal evidence, at all".
[14] The 1988 Act does
not change that starting point. Subject to the framework it creates,
its provisions are exclusionary. Hearsay
not admitted in accordance
with its provisions is not evidence at all.'
The
learned judge continued on p 337 C - D:
This Court alluded in
S
v Ramavhale
[1]
to
an
intuitive reluctance to permit untested evidence to be used against
an accused in a criminal case, observing that an accused
'usually has
enough to contend with without expecting him also to engage in mortal
combat with the absent witness'. It concluded
that "a Judge
should hesitate long in admitting or relying on hearsay evidence
which plays a decisive or even significant
part in convicting an
accused, unless there are compelling justifications for doing so".
[17] Aside from the
importance of these cautionary words, a trial court, in applying the
hearsay provisions of the 1988 Act, must
be scrupulous to ensure
respect for the accused's fundamental right to a fair trial.'
In
my opinion the magistrate failed to give due consideration to each of
the important provisions of s 3(1)(c) of the Act before
admitting the
evidence.
[32]
Although the magistrate strongly criticised Singqi and Hare he did
not explicitly reject
their evidence. However in his judgment on the
application for leave to appeal he stated:
'The defence is simply
wrong, I cannot, I must revisit the issue. And in fact I did revisit
the issue and changed my original decision
by disallowing the
evidence of the police regarding the hearsay matter. I only at the
end of the day allowed Schaeffer's evidence.'
I
must say that this is not how I read the magistrate's judgment. The
following passage demonstrates why I doubt the correctness
of the
above statement. When dealing with the hearsay evidence in the main
judgment the magistrate said:
'There is a golden
thread in all the
hearsay evidence and that is that,
the Phillip Rhind problem should permanently be solved. I agree with
the submissions by the prosecution
that the hearsay evidence
completes
the more
probable
mosaic
of evidence.
I also
agree
that
it would offend the interests of justice to
exclude the hearsay evidence of at least Schaeffer. The accused
version of the crime
that he incited Yalezo to commit is inherently
improbable and it does not accord with the rest of the evidence, when
viewed as
a
whole. The State's version that the accused asked
Yalezo to take out Phillip Rhind is far more probable. This factor
counts in favour
of admitting the evidence. The evidence has
probative value as it completes the whole puzzle. It is re
enforced by objectively
proven facts.'
And
later again:
'The statements were
intentionally given in the ordinary course of the interviews. The
statements form part of
a
generally contemporaneous series of
records.
'
In
conclusion under the heading 'FINDINGS' the magistrate again
criticised the police witnesses and stated that 'The sloppy and
unsatisfactory evidence by these SAP witnesses minimize the
reliability of their evidence. I can however find no reason to reject
the evidence of Shaeffer, including the hearsay reports to him by
Yaleso.
If
the magistrate had re-visited his original ruling and excluded the
hearsay evidence given by the police witnesses then there
can be no
reason to weigh the reliability·of their evidence. In fact the
magistrate explicitly found 'The
statements
(as opposed to
statement) form part of a generally contemporaneous
series of
records.
'
I
am not satisfied that the magistrate, in convicting the appellant,
did not also have regard to the hearsay evidence given by the
police
witnesses. I do, however, agree that their evidence was blemished to
such an extent that it should have been rejected.
[33]
If the magistrate changed his ruling on the admissibility of the
hearsay statements then, in
my view, there is another reason for us
to revisit the procedure followed by him. At the conclusion of the
state's case accused
persons are entitled to know what case they have
to meet ie what evidence they have to adduce and what evidence they
have to challenge.
This includes any hearsay evidence that was
admitted. (See s 35(3)(h) and (i) of the Constitution of the Republic
of South Africa,
108 of 1996). It is cold comfort for an accused to
learn, in the main judgment, that the magistrate has decided to
exclude hearsay
evidence which was previously admitted. In the matter
under consideration no new evidence was tendered during the defence
case
which could have influenced the magistrate to revisit his ruling
on the admissibility of the hearsay evidence (if that is in fact
what
he did).
[33)
I now treat each of the conditions contained in s 3(1)(c) of the Act.
Inasmuch as the magistrate found no fault with the hearsay
evidence
of Schaeffer I will restrict myself to his evidence.
(i)
The nature of the proceedings
I
need hardly state that a criminal trial requires that a court be
especially alive to the prejudice that may result in the admission
of
hearsay evidence. The remarks by Schutz JA in
Ramovha_, supra
at
p 647 I to 648 A are apposite:
‘
... but I agree
with Van Schalkwyk J's remark in
Metadad v National Employers'
General Insurance
Co
Ltd
1992 (1) SA 494
(W) about, 'the
Court's intuitive reluctance to permit untested evidence to be used
against an accused in a criminal case' (at
499H). Without engaging in
a debate about everything that was said in those cases I further
agree with the expression of the same
concern in
Hewan
v
Kourie
NO
and Another
1993
(3) SA 233
(T) at 239E-F and S
v
Cekiso and
Another
1990 (4) SA 20
(E). An accused person usually has
enough to contend with without expecting him also to engage in mortal
combat with the absent
witness.'
(ii)
The nature of the evidence
Schaeffer
interviewed Yalezo on 26 January 2011. That is 12 days after the
incident at the Rhind's home in Clifton on 14 January
2011. This left
ample time for Yalezo to tailor his version to suit himself.
Schaeffer questioned Yalezo but he did not take a
statement from him
and this only further serves to militate against the reliability of
the hearsay evidence. These were certainly
not spontaneous statements
(as the magistrate found them to be) by Yalezo to Schaeffer.
(iii) The
purpose for which the evidence is tendered
The
evidence was clearly tendered to prove not only that the crimes were
planned some time in advance but also that the appellant
had at an
early stage formed the intention to murder Rhind.
(iv) The
probative value of the evidence
Although
Schaeffer may have been a credible witness the reliability of the
hearsay statement is certainly not above question.
(v)
The reason why the evidence is not given by the person upon
whose credibility the probative value of such evidence depends
I
have already mentioned that Yalezo denied that he had made the
statements and reneged on his written statements. Suffice to say
that
the prosecutor had no faith in the witness and the magistrate also
did not believe him. How then, I ask myself, can one be
satisfied
that a witness of this calibre made reliable statements to Schaeffer
and the police.
(vi)
Any prejudice to a party which the admission of such evidence
might entail
In
the light of the dangers attached to reliance upon hearsay statements
emanating from this particular witness, the prejudice to
the
appellant is, in my view, obvious.
Having
regard to these consideration conclude that the magistrate erred in
admitting Schaeffer's hearsay evidence.
[34]
I should also mention that the procedure followed in the striking of
Yalezo's evidence from the
record was fatally flawed. In this regard
I need only refer to
S v Govender and Others
2006 (1) SACR 322
(E) at 327B - F where Nepgen J referred with approval to the
procedure which had been employed when witnesses had been
cross-examined
on their statements. I do not, however, find it
necessary to analyse the manner in which the witness was discredited
in this instance.
Suffice it to say that the procedure followed by
the magistrate was irregular.
[35]
It was also belatedly argued that the mere fact that the appellant
gave a false name to Joseph,
Kretzman, Phaliso and Yalezo is
sufficient to found a conviction. I do not share this view. The mere
making of a false statement
is not sufficient to constitute the crime
of fraud. The false statement must be made with the intention to
defraud and must result
in, at least, potential prejudice. In my view
this was not proved.
[36]
Without the evidence of what had transpired between the appellant and
Yalezo the appellant's convictions on counts 1
and 2 cannot stand.
[37]
I turn to count 3. The magistrate found that the appellant had
the direct intention to kill Rhind. This finding is based on the
facts surrounding the appellant's conduct before leaving the UK for
Cape Town and his conduct subsequent to his arrival in Cape
Town. The
magistrate concluded that the evidence conclusively showed that the
appellant had planned the attack on Rhind with the
intention to kill
him. I do not agree. Although the evidence tend to indicate that the
appellant intended to attack Rhind it does
not, without the hearsay
evidence, justify the inference that the appellant intended to kill
him. This finding does not result
in the conviction for murder being
set aside.
[38]
The appellant threw two petrol bombs at the Rhind residence.
This act of the appellant is fraught with danger. One need not be
endowed
with a live imagination or high intelligence to realise that
such conduct is pregnant with the possibility of the loss of life.
The appellant must have and, in my view, the only reasonable
inference is that he did foresee the possibility that his actions
could cause the loss of life. In my judgment it was proved that he
acted with
mens
rea
in the form of
dolus
eventualis
and not
dolus directus.
It follows that
his conviction on the charge of attempted murder must stand.
SENTENCE
[39]
Our conclusion necessitates that the sentence imposed by the
magistrate should be reconsidered. I need not elaborate on the crimes
committed by the appellant. The attempted murder is a particularly
serious one and the malicious injury to property charge to which
he
pleaded guilty is also one of the more serious examples of this
crime.
[40]
I consider this to be a case where the personal circumstances
of the appellant must yield to the interests of society and the
seriousness
of his crimes. The appellant spent sixteen months in
prison awaiting trial. This fact must be given due weight when an
appropriate
sentence is considered. In this regard I disagree with
the magistrate and our judgment on sentence will take account of the
appellant's
pre-trial incarceration. Having weighed all the relevant
facts and circumstances a sentence of imprisonment is inevitable.
Inasmuch
as the two crimes involved one course of conduct this is an
appropriate case for treating counts 3 and 4 as one for the purpose
of sentence.
CONCLUSION
[41]
In the result the appellant's appeal on counts 1 and 2 is
upheld and the convictions and sentence are set aside. Counts 3 and 4
are taken together for purpose of sentence and the appellant is
sentenced to four (4) year's imprisonment. In terms of
sections 282
·of the
Criminal Procedure Act 51 of 1977
the sentence is
antedated to 31 May 2012
A.H.
VELDHUIZEN, J
JUDGE
OF THE HIGH COURT
I
agree.
M.L.
DOLAMO, J
JUDGE
OF THE HIGH COURT
[1]
1996 (1) SACR 639
(A)